Mental Health Law Blog | The Health Law Firm Blog

Top 5 Reasons Professional Counselors and Psychotherapists Receive Complaints Against Their Licenses; What to Do to Prevent It

By Michelle E. Missigman, J.D., Attorney, The Health Law Firm

What is a Licensure Complaint?

A licensure complaint against a professional counselor, mental health counselor, or other psychotherapist is usually initiated by the filing of a complaint with the professional board or other regulatory authority. Although some states authorize the licensing board to investigate and resolve such complaints, in other states, there may be an “umbrella” agency that receives them and investigates them. For example, in Florida, the Florida Department of Health (or “DOH”) will receive and investigate complaints. In Colorado, the Division of Regulatory Agencies (or “DORA”). In Washington, D.C., the D.C. Department of Health (or “DC Health”), receives and investigates them.

Regardless, you will receive written notification, usually via U.S. mail, that an investigation has been opened against you. This is a major reason that you must keep your physical address and e-mail address up to date with all states in which you are licensed and with all certification boards at all times.

Regardless, the appropriate government regulatory authority will open and conduct an investigation into whatever complaint is filed.

What to Do When Notified of an Investigation.

If you are notified that you are under investigation, it is crucial that you immediately obtain an experienced healthcare attorney to represent you and that you notify your professional liability insurer about the complaint. In most cases, your professional liability insurance will include coverage for defense legal fees involved in defending a case against her license.

It is important that you do not speak with an investigator until you consult with an attorney. The decision on whether or not to make a statement or respond to questions from the investigator will depend on state law and the circumstances of the case. In some states, there is no obligation to cooperate with such an investigation. This is why it is so important to consult with an experienced attorney first.

When the investigation is completed, you may have the right to obtain a copy of the investigation and/or file a rebuttal to it. Again, this will depend on state law. In Florida, you do have such a right and it is usually crucial to do this. In many cases, a detailed, well-documented rebuttal statement may result in a dismissal of the case.

Ultimately, there will be a screening by the licensure board or a committee of the licensure board. It may make a finding that the complaint is meritless or that there is no probable cause to suspect that an actual offense has been committed. This will usually result in a dismissal of the case would no further action is required.

However, if the licensing authority does find the allegations that launched the investigation to be accurate, it may recommend that formal administrative charges be filed and that disciplinary action be undertaken. At this point, you will have the opportunity for a hearing in order to contest the facts and circumstances surrounding the complaint and to show that you are not guilty of any violations.

Who Can Make a Complaint?

A complaint can be filed against a counselor by a current or former client, a member of a client’s family or social circle, a colleague, a present or past employer, a law enforcement authority, a health insurer, the Medicaid Program, or another regulatory agency. In effect, a complaint can be filed by anyone. In many instances, the licensing authority will be notified by receiving an arrest record or receiving a newspaper report or other media report. However, most complaints are filed by disgruntled patients and competitors of the psychotherapist.

What Are the Top Reasons that Professional Counselors Receive Complaints?

According to a national professional liability insurance company that insures psychotherapists,

the following are the most frequent grounds for licensing board complaints against counselors:

1. Sexual Misconduct,

2. Failure to Maintain Minimal Professional Standards,

3. Breach of Confidentiality,

4. Reporting to Third Parties, and

5. Failure to Practice Within Boundaries of Competence.

Source: Healthcare Providers Insurance Organization (HPSO) Counselor Liability Claim Report.

How Can I Avoid Receiving Discipline from my Licensing Board?

As the average number of complaints against psychotherapists continues to rise, it is imperative that counselors document their clinical case notes appropriately and keep their client relationships professional at all times. When the boundaries between counselor and client begin breaking down, it becomes impossible to tell what information the counselor should document and/or keep confidential.

Not having a record of client interaction places the counselor in a difficult position should they receive a board complaint. Without documentation of the counselor’s decision-making based on what the client did or said, the counselor will have no record to support them during an investigation. It becomes a case of the counselor’s word against the word of a disgruntled client. Properly maintaining clinical case notes is not only a crucial part of the counselor’s obligation to their client, but it also serves as crucial supporting evidence during a board investigation.

For more information on how our firm can help defend you and your mental health counselor’s license, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free: (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: Michelle E. Missigman is an attorney at The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.

U.S. Government Renews COVID-19 Public Health Emergency, Extending Health Benefits for Millions of Americans

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On July 15, 2022, the United States again renewed the COVID-19 public health emergency, allowing millions of Americans special access to free tests, vaccines, and treatments. The public health emergency was initially declared in January 2020, when the coronavirus pandemic began. Since then, the Department of Health and Human Services has renewed it each quarter. HHS Secretary Xavier Becerra officially renewed the declaration extending it through October 13, 2022. View it in full here.

Ensuring Continued Access to Special Services During the Public-Health Emergency.

The declaration allows the U.S. to grant emergency authorizations of drugs, vaccines, and other medical countermeasures. As a result, it can administer those products to millions of people at no out-of-pocket cost. It’s also enabled millions of Americans to get health coverage through Medicaid, among other benefits.

It may also have additional benefits, such as allowing certain health care professionals to practice across state lines without getting a license in the state where the patient is and encouraging the continuation of video visits (telemedicine). But check your state and national regulations to be sure.

When the public health emergency expires, insured patients will be subject to co-pays or other costs, while the uninsured will lose easy access to free testing. In addition, millions could risk losing Medicaid coverage as states reinstate stricter enrollment rules that they had loosened to qualify for enhanced federal funding.

The Biden administration has ensured states it will give 60 days’ notice before ending the emergency to allow sufficient time to prepare for changes to specific programs and regulatory authorities. To learn more about Public Health Emergency Declarations, visit the Office for the Assistant Secretary of Preparedness and Response.

To read one of my prior blogs on the status of the COVID-19 pandemic in the healthcare industry, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and other healthcare providers. It also includes medical students, resident physicians, fellows, medical school professors, and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and Department of Health investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Aboulenein, Ahmed. “U.S. Renews COVID-19 Public Health Emergency.” Reuters. (April 13, 2022). Web.

Griffin, Riley. “Biden Administration to Again Extend the Covid Public-Health Emergency.” Bloomberg Law. (July 11, 2022). Web.

AHLA. “US Government To Extend COVID-19 Public Health Emergency Again.” Health Law Daily. (July 13, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

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Harvard Med School Morgue Director Allegedly Sold Body Parts, Class Action Says

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a morbid but extremely popular class action lawsuit filed on June 16, 2023, illegal body parts sales was alleged. The lawsuit against Harvard University contained allegations that its morgue manager was selling body parts from 350-400 donated cadavers. Many donors have now requested their bodies back.

Family members of the deceased had voluntarily donated the cadavers to the prestigious institution to further the medical and scientific study of the human body.

Massachusetts state law recognizes that human beings are entitled to be treated with decency and digital after death, which includes the bodies not being mishandled, viewed, dismembered, or sold by those entrusted with them. The previous morgue manager allegedly violated this law and countless other state, federal, and international laws and treaties. State and federal law prohibits the sale of body parts, often referred to as anatomical donations. These laws have been derived from international laws and conventions that prohibit such conduct, mostly written and agreed to as a result of the Nazi atrocities of World War II.

The Class Action Lawsuit.

The manager allegedly allowed unauthorized third-party members to view the cadavers in the morgue and select which body parts they wanted to purchase. The lawsuit did not state what times and days the store was open. However, once the order was placed, the morgue manager would unlawfully dissect and sell the body parts in person and online. Additionally, the defendant would allegedly ship the body parts to various locations in the United States on demand. Officials believe that this scheme occurred from at least 2018 until March 2023. During that time, the entrepreneurial morgue manager is suspected of having done his dastardly deeds to 350 to 400 separate cadavers.

The lawsuit did not reveal what the purchasers used the body parts for. However, this is expected to come out in discovery.

The class action lawsuit claims negligence and breach of care for the morgue manager and Harvard. According to the suit, the class is defined as: “all individuals whose family members donated their bodies to Harvard and Harvard Medical School for medical research and academic study and whose cadavers were mishandled, dissected, and/or sold by the morgue manager.”

The suit claims that Harvard breached its fiduciary duty of care by allowing the cadavers to be mishandled, dissected, and sold. The negligence claim focuses on the university not taking reasonable steps to ensure that the cadavers were appropriately handled, maintained, and used for their intended purposes. The class claims that Harvard is liable for its employee’s actions because the morgue manager acted within his scope of duty when he unlawfully dissected and sold body parts from the cadavers in the medical school’s onsite morgue.

This argument made in the lawsuit seems somewhat internally inconsistent. It does not seem logical that it could have possibly been within the morgue manager’s scope of duty to act illegally. One cannot have a contract that has for its purpose carrying out an illegal act. Otherwise, I would like to see a copy of that job description (it obviously would not have been written by a Harvard lawyer)!

Massachusetts law imposes a statutory duty to preserve the rights and dignity of a deceased person’s body when a medical school takes custody for scientific and academic purposes, which is another basis for the negligence claims by the class. The plaintiffs are also claiming negligent infliction of emotional distress from both Harvard and the morgue manager since Massachusetts recognizes emotional distress in situations of knowing that the remains of a deceased family member have not been preserved as the family desired.

Harvard will undoubtedly defend itself by arguing that the acts of the errant morgue manager were intentional torts and illegal acts outside of his scope of duties. The doctrine of caveat emptor, by which an employer is held vicariously liable of the negligent acts of its employee, does not apply to intentional torts.

The plaintiffs are requesting a decision from the court stating that both Harvard and the morgue manager are liable for negligence, that the class is awarded damages for the emotional distress, and that the defendants are enjoined from continuing their unlawful practices.

Click here to visit our website and read the complaint in full (but don’t expect to be able to fall asleep after you do!)

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

The Health Law Firm provides legal services for all healthcare providers and professionals. This includes scientists, pathologists, morgue directors (technically not usually licensed health professionals), clinical professors, medical researchers, clinical investigators, physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, fellows, medical school professors, and clinical staff. Our representation includes the defense of complex medical litigation. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex health litigation and both formal and informal administrative hearings. We also represent professionals accused of wrongdoing, patient complaints, and in audits and investigations.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Dowling, Brian. “Harvard Sued Over Morgue Director’s Alleged Body Part Sales.” Law360. (June 16, 2023). Web.

Levenson, Michael. “Harvard Medical School Morgue Manager Sold Body Parts, U.S. Says.” The New York Times. (June 14, 2023). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714. Phone: (407) 331-6620; Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: KBrant@TheHealthLawFirm.com or fax them to (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.

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How to Find an HPSO Insurance Attorney to Defend You in a Complaint Against Your Massage Therapy License

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We often hear from clients with professional licensing complaints and Department of Health investigations who have insurance coverage with Healthcare Providers Service Organization (HPSO) Insurance but could not find a lawyer who accepts it. They come to us after disciplinary action has been taken against their license to appeal or reverse it.

Our law firm and attorneys have represented individuals covered by HPSO Insurance for over 25 years. HPSO covers and pays for legal matters in various areas, such as administrative hearings, professional license complaints, investigations, depositions, HIPAA violations, and more.

Under these policies, the insurance company will pay the legal fees and costs related to your defense. However, usually, you are required to locate and retain the appropriate attorney to represent you.

Tips to Help Find and Retain an Experienced Attorney to Defend You.

1. Seek and retain an attorney who accepts your insurance, whether it is HPSO Insurance, NORCAL Insurance, The Doctors Company (TDC) Insurance, CPH & Associates Insurance, Pharmacists Mutual Insurance, Philadelphia Insurance, or another national company. This will ensure that you have an attorney who will give you the lower rates the insurance company had negotiated and will have a good working relationship established with your insurance company. If an attorney with our firm cannot represent you, we will try to find one who will.

2. The primary qualification for any attorney you hire to represent you should be their experience working with health professionals in the same field. If the attorney is not familiar with your area of health practice or the type of hearings involved, it may be difficult for that attorney to get up to speed to represent you properly.

3. If you come across an attorney who states that they will help you make a statement to the investigator or assist you in the investigation but does not appear at hearings, this is the wrong attorney. You need an attorney that can represent you from start to finish.

4. You also want to retain the services of an attorney who has appeared before your professional board or state licensing authority in investigations and hearings, especially formal or informal administrative hearings.

5. Often, you will encounter an attorney who only wants you to accept a consent order, stipulation, or settlement agreement. Remember that these are all merely “plea bargains,” by signing this, you will be pleading guilty to whatever offenses are charged. In most cases, you will be innocent and must request a formal administrative hearing to prove this instead of signing the consent agreement (or order).

6. You don’t need an attorney in your city, state, or location. Almost all the work on the case can be done by telephone and e-mail. You usually have only one meeting or hearing with the agency, and depending on the type of hearing or meeting, it could be located in many different locations. Our attorneys will travel to those locations for meetings and hearings with you.

7. Beware of attorneys who hold themselves out in Internet advertising as health attorneys or professional licensed defense attorneys but are other types of attorneys. We see this greatly from medical malpractice plaintiff attorneys, criminal defense attorneys, and attorneys who sue insurance companies. Be sure you retain only an attorney who concentrates their practice on defending those in the specialty of massage therapy and physical therapy, board of physical therapy and massage therapy complaints, investigations, and hearings.

8. If you can’t find an attorney to meet your immediate needs through an Internet search, you may contact your insurance company or professional association and ask if they have a list of attorneys who can do the legal work you require.

For example, you may reach Healthcare Providers Service Organization (HPSO) at (800) 982-9491; you can reach CPH & Associates at (800) 875-1911 or (312) 987-9823; you can access additional policy info from American Massage Therapy Association Insurance (AMTA) by going to their website here: https://www.amtamassage.org/massage-insurance/overview

To learn more about professional liability insurance and why you should have it, read my prior blog here.

Contact Health Law Attorneys Experienced in the Representation of Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists and physical therapists, physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies (HHAs), nurse practitioners, lab technicians, occupational therapists, physical therapists (PTs), social workers, physician assistants, psychologists, and other health professionals in many different legal matters.

Services we provide include representation before your professional board in DOH investigations, administrative hearings, civil litigation, professional licensing matters, defense of allegations concerning HIPAA privacy violations and medical record breaches, and many others.

In cases in which the health care professional has professional liability insurance or general liability insurance, which provides coverage for such matters, we will seek to obtain coverage from your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds to submit our bills directly to your insurance company. We also defend health professionals and health facilities in general and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620

Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.

Finding a Lawyer Who Accepts HPSO Insurance to Defend Healthcare Providers

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Healthcare professionals such as pharmacists, licensed mental health counselors, advanced registered nurse practitioners (ARNPs), and massage therapists often struggle to find experienced lawyers in Florida who will accept their professional liability insurance after receiving complaints from the Department of Health (DOH). Specifically, in this blog, the insurance provider in question is Healthcare Providers Service Organization (HPSO) Insurance.

Advantages of Having HPSO Insurance.

The medical professionals HPSO Insurance covers can give a sigh of relief knowing they have excellent insurance coverage. HPSO Insurance provides professional liability coverage that protects them in the event of a lawsuit or negligence claim.

However, it’s not just the significant cases that HPSO covers. More often than not, healthcare professionals receive a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment or sexual impropriety, a complaint because of a breach of medical records confidentiality, or a Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action. These situations can be incredibly stressful and time-consuming, but HPSO provides excellent coverage.

For example, if the individual receives a subpoena for a deposition, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation at the deposition. This means that the professional can focus on their work and not worry about the legal costs of a deposition. Additionally, the provider receives a notice of investigation or complaint from the DOH or Agency for Health Care Administration (AHCA). HPSO currently reimburses up to $25,000 in legal fees and expenses for their defense. The peace of mind that comes with knowing that they have this kind of coverage can be invaluable.

Finally, suppose a health professional is facing a complaint or investigation regarding a breach of medical confidentiality. In that case, HPSO reimburses up to $25,000 in legal fees and expenses for their legal representation in defense.

Whether you’re a nurse, physician, psychologist, or other healthcare professional, knowledgeable and skilled attorneys can assist you with legal issues.

Free Legal Advice: Get Insurance Right Away.

As a healthcare professional, it is essential to understand the importance of carrying insurance that covers any investigation, complaint, or administrative hearing that may be filed or opened against your license. Many healthcare professionals mistakenly believe their employer will cover them in such situations, but this is not always true.

Suppose you are still determining whether your employer will provide legal defense for any matters arising during employment. In that case, asking for a written statement confirming this is crucial. Without such a statement, you may find yourself without any legal support in the event of a complaint or investigation.

Unfortunately, in many cases, the employer terminates an employee and then files a complaint with the Department of Health (DOH). This can result in the DOH opening an investigation against the healthcare professional, leaving them vulnerable to potential legal action. In such cases, the employer is unlikely to pay for the healthcare professional’s legal defense costs, leaving the professional in a difficult position.

If you find yourself in this situation, you may be out of work, out of money, and facing an investigation and complaint that could result in your professional license and career termination. Taking proactive steps to protect yourself and your career is essential by investing in insurance that covers legal defense costs.

HPSO Insurance is both inexpensive and reliable. By purchasing this insurance, while you can afford it, you can rest assured that you will have the legal support you need in case of a complaint or investigation.

We Recommend That You Seek the Services of an Experienced Attorney in the Event of Any Notice of an Investigation.

If you work in the healthcare industry, you must be aware of the potential legal issues that could arise. One such issue is disciplinary action or licensure investigations. If you find yourself in this situation, seeking an experienced health law attorney is crucial. Don’t speak with investigators or provide documents or statements without seeking legal advice.

It’s important to remember that investigators and other professionals involved in the investigation are not on your side. They are looking for evidence against you, so don’t take any advice from them. Instead, rely on the guidance of a skilled attorney who can protect your rights and interests.

Another important consideration is insurance coverage. If you have good insurance, it can help cover the costs of legal expenses from the outset. However, not all insurance policies cover disciplinary complaints and licensure investigations. Be sure to check your policy carefully and ensure this type of coverage is included. If not, consider purchasing a separate policy that provides this coverage. It may cost extra, but it’s worth protecting yourself in case of a legal issue. It is worth it! Please do it!

Contact Experienced Health Law Attorneys Who Represent Healthcare Professionals and Providers.

Our firm specializes in providing legal representation to a wide range of healthcare professionals, including pharmacists, massage therapists, mental health counselors, registered nurses, and more. We offer a variety of services, such as representing clients before their professional board, handling DOH investigations, conducting administrative hearings, defending against malpractice claims, assisting with professional licensing matters, and addressing allegations related to HIPAA privacy violations and medical record breaches.

We also handle DEA actions and other legal matters. Our team frequently defends physicians, dentists, nurse practitioners, and others against malpractice claims, civil lawsuits, administrative complaints, peer review actions, and audits by Medicare and Medicaid. If a healthcare professional has liability insurance that covers these types of claims, we will work to obtain coverage and seek reimbursement for legal fees. In some cases, we may accept an assignment of insurance policy proceeds to directly submit our bills to the insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 George F. Indest III. All rights reserved.

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Mental Health Counselors: Follow These Rules To Prevent Complaints and Keep Your Professional License

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Licensed mental health counselors, psychologists, and other mental health care professionals are potential targets of licensure complaints from clients in any practice setting. Many legal situations and cases arise because the therapist has strayed over the line and crossed the therapist-client boundary. In reviewing the many disciplinary complaints and lawsuits I have handled, I have put together a list of simple “straightforward” rules. Following these rules can help save you many hours of stress and mental anguish and thousands of dollars in attorney’s fees and costs defending yourself.

These rules may appear to be so simple you would classify them as “common sense.” But you would be surprised at how often they are violated by even the best, most conscientious counselors.

These “Rules” May Seem Common Sense, But You Might Be Surprised:

1. DO NOT ever meet the client at an outside social activity or attend a social event with the client. These events include things like “just dinner” or “drinks.” Keep it professional.

2. DO NOT text the client. Texting is not secure and leads to casual and unprofessional thinking and conversations with the client. Many health care institutions prohibit their physicians and employees from texting with clients because of the HIPAA Security and Privacy Rules. You can use that as an excuse if you need it.

3. DO send an e-mail or a professional letter to the client instead of texting. Print out a copy and place it in the client’s health record because you will probably see it again.

4. DO NOT EVER make any suggestive or sexual remarks to the client in any communications, oral or written, text or e-mail. DON’T even think about it. This includes off-color jokes and comments.

5. DO immediately terminate the relationship with the client, transferring care to a different therapist, if the client suggests anything of a sexual nature involving you.

6. DO NOT talk about other clients with the client.

7. DO NOT talk about your personal life with the client. Especially DO NOT let the client have your private home address or personal e-mail address. Note that you can have your personal address excluded from most public licensing sites and directories.

8. DO NOT ever have a sexual relationship with a client or former client. Consider clients and former clients “off-limits.” See Rule 5 above

9. DO know what professional boundaries are and NEVER cross them. This includes allowing a personal relationship to grow between you and the client, selling anything to the client (e.g., Girl Scout cookies, candy bars for your kids’ school band, tickets to charity events, washing powder, plastic sealable containers, etc.).

10. DO know if you have a suspicion that your therapist-client relationship is getting out of bounds; it probably already is. See Rule 5, above.

11. DO call a more senior professional colleague to you and consult them about the “situation” if you think there is one.

These may sound like “no-brainers” to you, but you would be surprised at how many complaints against licensed mental health counselors and psychologists there are because of violating one or more of these “simple rules.”

(Note: These “rules” are merely guidelines meant to help you keep out of trouble; these are not rules meant to be enforced on anyone, nor are they meant to create or represent any “standard of care.”)

For additional information on how our firm can assist you in matters like this, click here to read one of our prior blogs.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. We also defend health professionals and health facilities in general litigation matters and business litigation matters.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free: (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
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What Payers Are Considered to Be “Federal Payers” Under the Federal Anti-kickback Statute?

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The federal Anti-Kickback Statute prohibits remuneration in relation to the provision of a “good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b). The Anti-Kickback Statute goes on to define “federal health care program” as any government-funded plan or program that provides health benefits or any state health care program. 42 U.S.C. § 1320a-7b(f). But exactly which payers are considered Federal health care programs? There is a lot of confusion on this issue. Hopefully, this will clarify it.

The List of Federal Payers for To Which the Anti-Kickback Statute Applies.

The list of federal and state programs to which the Anti-Kickback Statute applies is a long one. The state ones are on there primarily because they receive some level of federal funding. This list includes many programs, some of which you may have never heard or guessed. Here are the ones of which I am aware:

The Medicare Program (along with managed care plans that may contract with the Medicare Program, a number of private insurers);

The Medicaid Program (along with managed care plans that may contract with the various state Medicaid Programs-the private insurers which do this);

State Children’s Health Insurance Program (CHIP or SCHIP);

TRICARE and Tricare for Life;

CHAMPVA;

Veterans Administration (VA) Services;

Indian Health Services (IHS);

Federal Health Program for Alaska Natives;

Railroad Employees National Health and Welfare Plan (RENHWP);

Federal Employees’ Compensation Act (FECA) program;

The Longshore and Harbor Workers’ Compensation Act (LHWCA);

The Federal Black Lung Benefits Act program (FBLBA);

The Energy Employees Occupational Illness Compensation Program Act (EEOIC) (also known as the “Beryllium Exposure Compensation Act”) program;

Refugee Medical Assistance (RMA) program;

Federal Reimbursement of Emergency Health Services to Undocumented Aliens program; and

The Ryan White HIV/AIDS Program.

These programs cover a very wide swath of all health services offered in the United States. Therefore, nearly every medical item, facility, service, or equipment is potentially payable by a federal health care program.

Note, however, the Federal Employee Health Benefit (FEHB) Program, the program that provides insurance and benefits to federal civilian employees, is not included in the above list of payers, by statutory exemption. 42 U.S.C. § 1320a-7b(f); 5 U.S.C. Ch. 89.

The Public Health Service (PHS) and its programs may also be excluded from the application. See 42 U.S.C. § 1320a-7b(b)(3)(D).

Cross-over with the False Claims Act.

Compliance with the Anti-Kickback Statute is a Condition of Payment for federal health care programs. Every claim that is submitted for payment contains an attestation that the provider providing the goods or services for which payment is sought has complied with the federal Conditions of Payment.” Therefore, if there has been a kickback in relation to such goods or services for which a claim is made, the False Claims Act will also apply.

Contact Health Law Attorneys Experienced with Health Care Fraud, False Claims Act Violations, and Anti-Kickback Statute Violations.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, Integrity Contractor audits and RAC audits, False Claims Act cases, and whistleblower/qui tam cases throughout Florida and across the United States. Our attorneys also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in the practice of health law. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: KBrant@TheHealthLawFirm.com or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.

Medications and Other Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests (Part 1 of a Blog Series)

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In representing nurses and other licensed health professionals, we constantly discuss positive drug screenings, usually from employer-ordered drug testing, with our clients. These clients include nurses, pharmacists, dental professionals, mental health counselors, therapists, etc. Often these individuals need to remember that if they apply for a job with a new employer or are working for a large corporation or the government, they are subject to employer-ordered drug screenings. Most problems arise when the professional has applied to a hospital or a placement agency for work in a hospital and they must submit to a pre-employment drug test.

The client often contends that the result is a false positive and that some other substance must be responsible for it.

A positive result for any drug for which you do not have a valid prescription from a physician, including marijuana, will cause you to be eliminated from consideration for a new job or terminated from a current position and a complaint against your professional license, which could cause you to lose it. We are routinely called on to defend such situations.

Series of Blogs to Discuss Substances that Can Mimic Prohibited Drugs on Drug Tests.

In the years I have been doing this, I have encountered many cases in which other substances have caused a positive result for a prohibited substance on a drug screening test.

In this series of blogs, I intend to discuss some of the substances scientifically shown to cause false positives on employer-ordered drug screening tests. This is the first in the series.

Over-the-Counter Medications Mimicking Amphetamines on Drug Tests.

Following is a discussion of substances that can cause a false positive for amphetamines on a urinalysis drug test. This material comes from an article in Case Reports in Psychiatry published in 2013. (Ref. 1)

Many prescription pharmaceuticals and over-the-counter (OTC) medications have been previously reported in the literature to cause a false-positive result for amphetamines on urine drug screens. Many OTC medications have been reported in scientific literature to produce false positives for amphetamines on urine drug screenings, chiefly antihistamines.

The OTC medications that have been documented to and are well known as causing false positives for amphetamines on drug tests include nasal decongestants, Vicks inhaler, MDMA (3,4-Methylenedioxy methamphetamine; commonly known as ecstacy, molly, mandy or X), and pseudoephedrine. (Refs. 1-5) Some of these are prohibited medications that cannot be prescribed and are only available as “street drugs” such as MDMA.

Prescription Medications Documented as Mimicking Amphetamines.

Prescription medications known to have mimicked amphetamines on testing include antipsychotics and antidepressants. (Refs. 1 & 2)

The prescription medications known to cause false-positive amphetamine urine drug screen include fluoxetine, selegiline, ranitidine, trazodone, nefazodone, brompheniramine, phenylpropanolamine, chlorpromazine, promethazine, ephedrine, methamphetamine, and labetalol. (Refs. 2-5) However, the fact that the individual taking the drug test might have a prescription for one of these might cause the employer to disqualify the employee or potential employee from consideration for the job.

Bupropion (an atypical antidepressant that inhibits norepinephrine and dopamine re-uptake), is a drug used to treat depression and smoking cessation, but may also be used off-label to treat ADHD. It has also been documented as causing false positive results for amphetamines on drug screenings. (Ref. 6)

The drug atomoxetine has metabolites that are similar to those of amphetamines (phenylpropan-1-amine verses phenyl-propan-2-amine). This could also result in a false positive on a urine drug screen. (Ref. 1)

Other Discussions in Future Blogs.

In future blogs, I intend to discuss false positive claims associated with use of ibuprofen, amoxicillin, coca leaf tea, poppy seeds and other common substances and medications. Stay tuned.

Contact Experienced Health Law Attorneys in Matters Involving PRN or IPN.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses and other health professionals in matters involving PRN or IPN. Our attorneys also represent health providers in Department of Health investigations, before professional boards, in licensing matters, and in administrative hearings.

To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.ThehealthLawFirm.com.

References:

1. Fenderson JL, Stratton AN, Domingo JS, Matthews GO, Tan CD. Amphetamine positive urine toxicology screen secondary to atomoxetine. Case Rep Psychiatry. 2013;2013:381261. doi: 10.1155/2013/381261. Epub 2013 Jan 30. PMID: 23424703; PMCID: PMC3570929.

(Accessed on May 20, 2023.)

2. Brahm NC, Yeager LL, Fox MD, Farmer KC, Palmer TA. Commonly prescribed medications and potential false-positive urine drug screens. Am J Health Syst Pharm. 2010 Aug 15;67(16):1344-50. doi: 10.2146/ajhp090477. PMID: 20689123.

3. Vincent EC, Zebelman A, Goodwin C, Stephens MM. Clinical inquiries. What common substances can cause false positives on urine screens for drugs of abuse? J Fam Pract. 2006 Oct;55(10):893-4, 897. PMID: 17014756.

4. Rapuri SB, Ramaswamy S, Madaan V, Rasimas JJ, Krahn LE. ‘Weed’ out false-positive urine drug screens. Current Psychiatry. 2006;5(8):107–110. [Google Scholar]

5. Moeller KE, Lee KC, Kissack JC. Urine drug screening: practical guide for clinicians. Mayo Clin Proc. 2008 Jan;83(1):66-76. doi: 10.4065/83.1.66. Erratum in: Mayo Clin Proc. 2008 Jul;83(7):851. PMID: 18174009.

6. Reidy L, Walls HC, Steele BW. Crossreactivity of bupropion metabolite with enzyme-linked immunosorbent assays designed to detect amphetamine in urine. Ther Drug Monit. 2011 Jun;33(3):366-8. doi: 10.1097/FTD.0b013e3182126d08. PMID: 21436763.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: PAlexander@TheHealthLawFirm.com or fax them to (407) 331-3030.