Have You Been Recommended to an Impaired Practitioner Program? What You Need to Know if You’ve Been Accused

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

In an industry that revolves around helping others, physicians and other health professionals sometimes find that they are the ones being pushed toward a treatment program. Long hours, heavy workloads, and stress among health care professionals can sometimes lead to unsafe, unprofessional behavior and impairment allegations.

We routinely work with mental health providers, nurses, and other health professionals who are accused by employers, hospitals, competitors, or terminated employees of impairment due to drug or alcohol abuse, or mental impairment, of being a “disruptive physician” or of sexual boundary issues. However, not all nurses and health professionals who are referred to a health program are in actual need of rehabilitation services.


What is the Impaired Practitioners Program?

The Florida Department of Health’s (DOH) Impaired Practitioners Program (IPN), Section 456.067, Florida Statutes, is administered by the Intervention Project for Nurses or “IPN” (for nurses and nurse practitioners) and by the Professionals Resource Network or “PRN” (for physicians, dentists, pharmacists, and all other health professionals). IPN is responsible for all nurses and works with and through the Florida Board of Nursing. PRN works with and through the Florida Board of Medicine, Florida Board of Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling, Board of Dentistry, Board of Pharmacy, and other Department of Health Professional Boards.


You Report Yourself to PRN; What Happens Now?

These types of allegations discussed above made against a psychologist, physician, or other health professional are extremely serious because they are usually treated by the DOH as “Priority 1” or “Fast Track” offenses. This means that the charges against the individual will usually be automatically considered for an Emergency Suspension Order (ESO) issued by the Florida Surgeon General at the request of the Department of Health. Unless a qualified, experienced health care attorney is able to immediately produce reliable documentation and evidence showing the health professional is not impaired, the Surgeon General will usually issue an ESO. Click here to read one of my prior blogs to learn more.

Even in cases where the individual may actually have committed an offense, there are a number of administrative and procedural measures that may be used to avoid a suspended license. For the innocent health professional, an experienced attorney familiar with such matters may be able to obtain additional drug testing, polygraph (lie detector) testing, medical examinations, scientific evidence, expert witnesses, evaluations by certified addictions professionals, character references, or other evidence which may help to show innocence and lack of impairment.


Call an Attorney Immediately, Before Making Any Decisions or Calls!

If you are accused of wrongdoing, especially accusations involving drug or alcohol abuse or impairment, even if you are threatened with being reported to the DOH or the Board of Mental Health, then it may be much better to defend yourself and fight such charges instead of trying to “take the easy way out.” This is especially true if you are being falsely accused. There are many problems that you can avoid by having good legal advice before you make a stupid mistake. We are often consulted and retained by clients when, after they have made the mistake of talking to the wrong people about the wrong things, they are in a situation they could have avoided.

Our firm has extensive experience in representing healthcare professionals accused of drug abuse, alcohol impairment, mental impairment, and sexual boundary issue, as well as in dealing with the IPN and the PRN, their advantages and disadvantages, their contracts, their policies, and procedures, and their requirements.

The bottom line is: if you are accused of drug impairment, alcohol impairment, drug diversion, sexual boundary issues, sexual misconduct, or of being mentally or physically impaired, immediately contact an attorney experienced with IPN and PRN and with Board of Medicine, Board of Dentistry, Board of Pharmacy, and other professional boards. Don’t risk losing your livelihood by just taking the apparently easy way out without checking into it. There may be other options available for you, especially if you are innocent and not impaired.

To read one of my prior blogs about the recent changes to Florida’s Impaired Practitioners Program, click here.

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

The Health Law Firm’s attorneys routinely represent mental health providers, nurses, physicians, dentists, 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 (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Masterson, Les. “Physician wellness, quality of care go hand-in-hand, analysis finds.” Healthworks Collective. (September 10, 2018). Web.

Maria Panagioti, Keith Geraghty, Judith Johnson. “Association Between Physician Burnout and Patient Safety, Professionalism, and Patient Satisfaction.” Journal of American Medical Association (JAMA). (September 4, 2018). 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., Altamonte Springs, FL 32714, Phone: (407) 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 © 2021 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

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

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

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 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 © 2021 The Health Law Firm. All rights reserved.

Florida Court Sides With University of Miami, Rules It’s Immune to Medical Malpractice Suit

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

On October 28, 2020, a Florida appeals court tossed out a medical malpractice suit accusing a University of Miami doctor of providing negligent treatment at a public teaching hospital. A panel of the Florida Third District Court of Appeal upheld a circuit judge’s ruling that the university is protected by sovereign immunity when faculty members provide care at Jackson Memorial Hospital, a teaching hospital.


Background of the Suit.

The ruling arose out of a case in which a University of Miami physician provided treatment in 2013 to a patient at Jackson Memorial. A medical malpractice lawsuit was filed against parties including Jackson Memorial, the university, and the physician. The suit alleged that a failure to provide anticoagulants resulted in disabilities.

Jackson Memorial Hospital is owned and operated by Miami-Dade County through the Public Health Trust. It is supported by Miami-Dade County residents through a portion of the county’s sales tax. Because of this, it is considered to be the same as a state agency, and its employees have the same sovereign immunity as state employees do.

The judge dismissed the suit against the doctor, saying that because the doctor provided services at the public teaching hospital, pursuant to the University’s agreement with Jackson Memorial, he should be considered an agent of the hospital. Therefore, he is entitled to sovereign immunity.

Pointing to state law and an agreement with Jackson Memorial, the university also argued that it was shielded by immunity from liability. The university claimed it was entitled to immunity under Sections 768.28(9)(a) and (10)(f), Florida Statutes. Since any liability the university had would be vicarious liability based on the alleged negligence of the physician, if the physician was determined to be immune, the university would have the same defense.

Additionally, Section 768.28, Florida Statutes, was amended by the Florida Legislature in 2011 to cover nonprofit independent universities that provide patient care at government-owned teaching hospitals. The same year, Jackson Memorial and Miami University amended the terms of their agreement to incorporate the amended sovereign immunity statute, according to the judge’s opinion in the case.

The Trial Court’s Ruling.

The appellate court panel agreed with the circuit judge, saying it was undisputed that the doctor was a University of Miami faculty member and employee at the time of the treatment. Additionally, the agreement between Jackson Memorial and the University of Miami was properly redrafted in 2011 to reflect the amendment to the statute. “Under the terms of the 2011 agreement and section 768.28, Florida Statutes, the university is immune from suit here because the physician treated the patient while acting as Jackson’s statutory agent,” the appellate panel said in the opinion.

Click here to read the court’s opinion in full.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in prosecuting and in defending complex civil litigation in state and federal courts. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

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.

Sources:

“State Appeals Court: University Of Miami Shielded From Medical Malpractice Lawsuit.” Miami CBS Local. (October 28, 2020). Web.

Kang, Peter. “Fla. Court Says Univ. Of Miami Immune To Med Mal Suit.” Law360. (October 28, 2020). 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 Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 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 © 2021 The Health Law Firm. All rights reserved.

Former Kaiser Permanente Employee Files ADA Suit, Claims Disability Discrimination

George Indest Headshot

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

On November 4, 2020, a former employee of Kaiser Permanente Insurance filed a class-action suit in the U.S. District Court for the Northern District of Georgia, claiming discrimination. She says the company required her to take a “competency test” to determine if she could keep her job after the Atlanta business learned of her medical disability (anxiety and depression). The suit claims that the insurance company refused to accommodate her disability and fired her after she failed.

Alleged Disability Discrimination.

The plaintiff worked for Kaiser Permanente Georgia Region between October 2010 and August 2020. According to the lawsuit that was filed, she was diagnosed with anxiety and depression in 2018 and in May 2019 but was cleared by her physician to work. According to the suit, Kaiser Permanente singled her out, forced her to disclose her anxiety and depression, and required her to take a “competency test” for a job she already held. It is worth noting that mental conditions such as “anxiety and depression,” are protected by the Americans with Disabilities Act (ADA).

In March 2019, the plaintiff requested a reasonable accommodation—i.e., a postponement of the testing until she was mentally stable enough to sit for the test. She claims her request was denied outright by Kaiser despite its knowledge of her disability. Per the complaint, the plaintiff was told that she had failed the competency test, despite never having received her scores. In August 2019, she was retested and Kaiser told her that she failed.

On November 8, 2019, the employee was terminated because she “no longer met the job requirements and was not successful at passing the second attempt of the competency test,” the complaint said.

Failure to Accommodate Under the ADA.

The former employee alleged disability discrimination, unlawful medical requests, and failure to accommodate her disabilities under the ADA. She’s seeking unspecified damages for loss of past and future income, mental anguish, and emotional distress, along with her court costs and attorney fees.

Click here to read the complaint in full.

For more information, read our prior blog on a similar case dealing with an insurance company that was sued for mental health discrimination.

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 nurses, resident physicians, mental health counselors, social workers, pharmacists, and health facilities. It also includes medical students, 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 in 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:

Konnath, Hailey. “Kaiser Permanente Hit With ADA Suit Over Competency Tests.” Law360. (November 4, 2020). Web.

Shaak, Erin. “Singled Out: Lawsuit Claims Kaiser Permanente Denied ‘Competency Test’ Accommodation for Ex-Employee with Disability.” Newswire. (November 5, 2020). 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 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 © 2021 The Health Law

By |2021-02-24T12:35:59-05:00May 18th, 2021|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Psychologists and Health Professional License Applications: Do’s & Don’ts

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

The process of obtaining a medical or health professional license can be challenging and time-consuming. When seeking initial licensure or applying for a license in another state, you should be aware of delays in the application process due to the investigation of credentials and past practice, as well as the need to comply with licensing standards.

Here is a List of Examples That Would Delay Your Application:

• Disciplinary or academic actions during postgraduate training (probation, suspension, remediation)
• Action by another state’s regulatory or licensing board
• Action by a different professional licensing board
• Misdemeanor or felony convictions
• Results of the criminal background check (remember, it shows arrests, not necessarily the results of the arrests)
• Civil judgments/malpractice
• Medical, physical, mental, or chemical dependence impairment/condition within the last five years
• Adverse action against your clinical privileges by a hospital, ambulatory surgical center, skilled nursing facility, or other health facility or professional organization.
• Adverse action (e.g., termination for cause) by a former employer
• Action by a specialty board
• Lack of recent active practice
• Action by DEA against your DEA registration number
• Disciplinary action (especially court-martial) by the military
• Applications that require a petition of waiver or variance for a job

Not being 100% truthful about your history and education is the number one reason for denial of an application for a license! Don’t try to hide potentially derogatory information from a state licensing board, if it is required by the question or the instructions that further elaborate on the question. It is much better to come forward with the information and be upfront.

This being said, you do not want to volunteer adverse information that a question does not ask. For example, if a question asks about felony convictions, DO NOT disclose misdemeanor convictions or traffic ticket convictions. If a question asks about convictions, DO NOT disclose arrests for which you were acquitted or were dismissed. If a question asks about medical malpractice lawsuits, DO NOT disclose civil lawsuits that were not related to malpractice.

How to Speed up the Application Process.

There are ways to ease the process of applying for a mental healthcare license and get your application processed quicker. Before submitting your application, contact the licensing board and request a copy of its current licensing requirements and the average time it takes to process applications.

The following are tips to help ease the process of applying for Professional licensure:

1. Submit follow-up documents in a timely manner online or mail them to the correct address (as required). If you cannot obtain requested follow-up documentation, provide a separate, detailed explanation (preferably in the form of an affidavit), of why you cannot do so.

2. Keep in mind that any fees you pay have to be processed by the Department vendor. This may take a few days.

3. Identify any variation of names and nicknames.

4. Once you start the process, submit the application within 30 days so that your supplemental documents, including transcripts, will have an application file in which to be filed.

5. Have the correct address on the application for training programs you have attended and the health facilities at which you have worked.

6. Send in necessary back-up documents in a timely manner.

7. Follow up with sources that are sending the Florida Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling your documents.

8. Watch for letters or e-mail from your reviewer. This is how you will be instructed on what additional documents or information may be needed for your application to be complete.

9. If asked for follow-up information from the Board, please read the request carefully to identify exactly what is needed to make your application complete.

10. Answer questions honestly and provide an explanation where appropriate. But do not provide information that is not being requested.

Psychologists and mental health professionals seeking a license should expect at least a 60-day period from the time they initially submit a completed application and the actual date licensure is granted.

For more information and ways that The Health Law Firm can help in licensure matters, visit our Video Q&A section or visit our website’s Areas of Practice page.


Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you are applying for a mental healthcare license, have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents psychologists, mental health professionals, physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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.

Sources:

“Obtaining a Medical License.” American Medical Association (AMA). Web.

Florida Board of Medicine, “Licensing FAQs,” http://flboardofmedicine.gov/licensure-faqs/

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 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 © 2021 The Health Law Firm. All rights reserved.

Three People Charged For $109 Million Scheme to Defraud Medicare & HIPAA Violations

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

In October 2020, Massachusetts federal prosecutors charged three people for their alleged roles in a multi-million dollar plot to defraud Medicare. Two individuals allegedly collected patient data and sold it to the purported mastermind, who used it to submit $109 million in false claims.

The two individuals who allegedly obtained the patient information were both located in Florida, wouldn’t ya know. They were each charged with one count of receiving more than $1.6 million kickbacks in connection with a federal health care program. Prosecutors charged the third individual with criminal violations of the Health Insurance Portability and Accountability Act (HIPAA).

Fraudulently Collecting & Using Private Patient Information.

According to court documents, both individuals in Florida owned marketing companies that enlisted foreign call centers to contact Medicare beneficiaries. Using a prepared script, they allegedly asked the patients they called if they would be interested in receiving durable medical equipment (DME) such as knee braces or compression sleeves “at little to no cost.”

The call centers would then collect information, including the patient’s name, address, insurance number, Medicare number, and doctor’s name and address, prosecutors said. The information was then sold to the third individual, who filed fraudulent Medicare claims for DME that were never prescribed and not medically necessary.

According to court records, the alleged co-conspirators used the same patients’ information repeatedly through a different shell company each time. More than 1,000 of the claims were made under the names of deceased beneficiaries. Click here to view the criminal information in this case.

Read the DOJ’s press release on this case for additional information.

Also, you can read one of my prior blogs on a similar case in Florida.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare Issues Now.

The attorneys of The Health Law Firm represent durable medical equipment (DME) suppliers and other health care providers in Medicare audits, ZPIC audits, MAC audits, and RAC audits throughout Florida and across the U.S. They also health care providers in qui tam or False Claims Act (whistleblower) litigation and in other complex medical litigation. They also represent DME suppliers, 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 programs, They represent health care providers in formal and informal administrative hearings, federal or state.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Sinay, Reenat. “Feds Charge 3 In Alleged $109M Medicare Fraud Scheme.” Law360. (October 2, 2020). Web.

Szaniszlo, Marie. “Three charged in multi-million dollar fraud scheme.” Sentinel Enterprise. (October 2, 2020). 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.

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 © 2021 The Health Law

By |2021-02-24T10:50:35-05:00April 7th, 2021|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Simple Rules for Keeping Your License and Avoiding Complaints for Counselors and Psychotherapists

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

I represent many mental health counselors, social workers, psychologists, and professional counselors, defending them on complaints being investigated against their professional licenses. Many complaints and investigations arise because the therapist has strayed over the line and crossed the therapist-client boundary. In reviewing these cases, I have drawn up a list of a few simple “bright line” rules that can help save you many hours of stress and mental anguish as well as thousands of dollars in attorney’s fees and costs defending yourself

These “rules” may seem to be common sense, but there they are, anyway:

1. DO NOT ever meet the client at an outside social activity or attend a social event with the client. This includes “just dinner” or “just-drinks.”

2. DO NOT text the client. Texting is not secure and leads to casual and unprofessional thinking and conversation 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 one.

3. DO take a screenshot and print out the text when you violate the above rule. Place it in the client’s health record because you will probably be seeing it again, attached to a complaint.

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

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

6. 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.

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

8. DO NOT talk about your own personal life with the client. Especially DO NOT let the client have your personal home address or personal e-mail address.

9. DO NOT ever have sex with a client or former client. DO NOT even think of it. If you start to think of it, see Rule 6, above. Consider clients and former clients “off-limits” no matter how much you are tempted. If you are religious, just consider this as an attempt by Satan to seduce you. If it works, you are going to be in Hell, even before you die.

10. DO know what professional boundaries are and DO NOT cross them. This includes allowing a personal relationship to grow between you and the client, and includes selling anything to the client (e.g., Girl Scout cookies, tickets to a charitable event, Amway products, candy bars for your kids’ school band, etc.), agreeing to meet the client at any outside event, accepting gifts from the client, hiring the client to work for you, accepting “voluntary” services from the client (including volunteering to work in your office). If you need a friend that bad, terminate the therapist-client relationship and see Rule 6, above.

11. DO know that if you have even a suspicion that your therapist-client relationship is getting out of bounds, then it already is out of bounds. See Rule 6, above.

12. DO call a professional therapist colleague who is more senior to you and consult her or him about the “situation” if you think there may be a “situation.”

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

(Note: These “rules” are just guidelines meant to help you keep out of trouble; these are not meant to be enforced against anyone, nor do they 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. 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.

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.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

By |2021-03-26T09:38:32-04:00March 26th, 2021|Categories: In the Know, In the News, Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Eight Legal Tips If You Are Having Academic, Disciplinary or Legal Problems with Your Residency Program

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

Here are some tips to set the record straight on various inaccurate information I have heard from physicians in medical residency programs in representing them in appeals of disciplinary actions including suspension and terminations.

1. Nothing you tell your Program Director, advisor, mentors, attendings, senior resident, or co-resident is confidential. Go ahead and pour your heart out about all of your problems and concerns, but none of it is confidential, even if you said it was “in confidence.” What is confidential: what you tell your priest or religious adviser (preacher, rabbi, imam) and what you tell your own personal physician or psychotherapist (unless you have signed a waiver) that you have hired and you are paying. Anyone else, it is not confidential. So if you tell your program director you were raped when you were younger, not confidential. If you tell your senior resident you suffer from panic attacks, not confidential. You tell your attending that you had cancer ten years ago, not confidential. This applies no matter what “magic words” you attach to it.

2. Take and use whatever time period is offered to you to retain counsel and prepare. If you are given ten (10) days to file an appeal or a request for hearing, take the full ten (10) days. Do not file it on the same day. Otherwise, you are using up valuable preparation time that you cannot get back.

3. Make sure that whatever you are required to file is actually received by the due date indicated. If a request for a hearing must be filed within fifteen (15) days, that means that it must be received within the fifteen days. Check after you send it or deliver it to make sure it has been successfully received.

4. It is never too early to hire an attorney. Hire an attorney to represent and advise you at the first sign of trouble. However, you must be sure to hire an attorney who is experienced in representing residents and fellows in disputes with graduate medical education programs. An experienced attorney can help you prepare any written submissions you make, organize your response and any documents you care to submit, and otherwise assist you in identifying what is relevant and what is not relevant.

5. Always read your program’s graduate medical education (GME) manual, residency manual, due process policy or whatever handbook or manual contains your hearing and appeal rights. Be familiar with them and follow them.

6. If you are given remedial actions you must take, documents your completion of each one. Whether the requirement you must perform is in a corrective action plan (CAP), a remediation letter, or a probation letter, document your completion of it in writing and report it to whatever authority gave you the requirement. Send a courtesy copy (“cc”) to your program director.

7. Make sure any correspondence you send to anyone is complete, correct and in the form of a professional business letter. Make sure it meets all of the requirements of a professional business letter. This is especially true for rebuttals, appeals, hearing requests, etc. What, you don’t know what this is? Then go online and Google it. Your letter should look very similar to any letter you received from your program director or institution. Be sure it has all of your return contact information on it as well as a date. Do not start your letter with “Hi,” “Hello,” or “Good day.” Do place a reference (“Re:”) line or subject line on your letter that states what the subject of your letter is.

8. Do not be afraid to appeal, file a discrimination complaint or exercise any of your legal rights. Often I hear from residents, after they are already terminated from their program, that they are afraid to get a lawyer involved. I usually ask: “What are you afraid of? What is the worst that can happen? You have already been terminated.” Remember, also, that if your program retaliates against you for exercising any of your rights, that is illegal. The ACGME would like to hear about that and in almost all cases, you will then have a legal cause of action upon which you can sue the program.

Contact a Health Care Attorney Experienced in the Representation of Medical Resident Physicians, Fellows, Medical Students, Dental Students and Residents, Pharmacy Students and Residents, Mental Health Counselor Interns, and other health professionals. The attorneys of The Health Law Firm, also represent those applicants accused of irregular behavior by the National Board of Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), in responses, hearings and appeals, including on charges of “unprofessional conduct” and “improper behavior.”

The Health Law Firm and its attorneys have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other 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 the 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 and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

Three People Charged For Roles in $109 Million Medicare Fraud Scheme, HIPAA Violations

George F. Indest III with 30+ years of experience, is Board Certified in Health Law

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

In October 2020, Massachusetts federal prosecutors charged three individuals for their alleged roles in a multi-million dollar plot to defraud Medicare. Two individuals allegedly collected patient health data and sold it to the purported mastermind, who then used it to submit $109 million in false Medicare claims.

Both individuals obtaining the personal health information were located in Florida, wouldn’t you know it. Each was charged with one count of receiving more than $1.6 million kickbacks in connection with a federal health care program. Prosecutors charged the third individual with criminal violations of the Health Insurance Portability and Accountability Act (HIPAA).

Stealing and selling personal health information is one of those HIPAA violations that will really, really get you in trouble. Very few people even know that such a HIPAA violation can be prosecuted as a federal felony crime.

Fraudulently Collecting & Using Patient Information.

According to court documents, both individuals in Florida owned marketing companies that enlisted foreign call centers to contact Medicare beneficiaries (which, I believe, I have received a number of). Using a prepared script, they allegedly asked if patients would be interested in receiving durable medical equipment (DME) such as knee braces or compression sleeves “at little to no cost.” (Does: “We are calling because of your back pain,” sound familiar?)

The call centers would then collect information including the Medicare patient’s name, address, insurance number, and doctor’s name and address, prosecutors said. The information was then sold to the third individual, who used it to file fraudulent Medicare claims for the DME that was never prescribed by a legitimate physician and was not medically necessary.

According to court records, the alleged co-conspirators used the same patients’ information repeatedly through a different shell company each time. More than 1,000 of the claims were made under the names of deceased beneficiaries. (Click here if you are deceased).

Click here to view the criminal information in this case.

Read the DOJ’s press release for more information.

Also, read one of my prior blogs on a similar case in Florida.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Health care Fraud Issues Now.

The attorneys of The Health Law Firm represent physicians, durable medical equipment (DME) suppliers, and other health care providers in Medicare audits, investigations and subpoenas, ZPIC audits, subpoenas and investigations, MAC audits, RAC audits, Department of Health (DOH) subpoenas and investigations, Department of Health and Human Services (DHHS) subpoenas and investigations, Medicaid Fraud Control Unit (MFCU) subpoenas, audits and investigations, OIG subpoenas, audits and investigations, and Department of Regulatory Agencies (DORA) subpoenas, audits, and investigations, in Florida, Colorado, Louisiana, the District of Columbia, Virginia, and throughout Florida and across the U.S. They also represent DME suppliers, physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, termination from the Medicare or Medicaid program, and state and federal administrative hearings and litigation.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Sinay, Reenat. “Feds Charge 3 In Alleged $109M Medicare Fraud Scheme.” Law360. (October 2, 2020). Web.

Szaniszlo, Marie. “Three charged in multi-million dollar fraud scheme.” Sentinel Enterprise. (October 2, 2020). 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 Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 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 © 2021 The Health Law

DOJ Charges 345 People Involved in More Than $6 Billion in Fraud, Related to Telemedicine and Opioid Prescriptions

George F. Indest III with 30+ years experience, is board certified by the Florida Bar in Health Law.By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In September 2020, federal prosecutors charged 345 doctors, nurses, and other medical professionals allegedly involved in more than $6 billion in healthcare fraud. It is considered the largest Health Care Fraud and Opioid Enforcement Action in the Department of Justice’s history (DOJ). The schemes were related to telemedicine, illegal opioid distribution, and durable medical equipment, the DOJ said.

A National Fraud Operation.

According to the DOJ, the 345 defendants were responsible for submitting false and fraudulent claims that cost more than $6 billion to federal health care programs and private insurers. It included $4.5 billion related to telemedicine fraud, $1.5 billion connected to sober homes, and over $806 million linked to illegal opioid distribution and other forms of Medicare fraud.

Telemedicine fraud charges made up the bulk of the nationwide bust. A total of 86 defendants were telehealth executives who allegedly paid medical professionals to order unnecessary amounts of durable medical equipment, genetic tests, and pain medications.

The sober homes cases include charges against more than 12 defendants for allegedly submitting false claims for tests and treatments for patients with drug and alcohol problems. The defendants allegedly paid illegal kickbacks and bribes for the referral of hundreds of patients to substance abuse treatment facilities.

Similarly, included in the charges were health professionals and others involved in distributing more than 30 million doses of opioids and other prescription narcotics. These charges have already resulted in guilty pleas by more than 240 of the defendants.

The historic law enforcement action was put in motion in April 2020 and aimed to crack down on classic health care fraud schemes. The DOJ executes “takedowns” every year to spotlight concerns about fraud in certain areas by grouping similar schemes together. Since its establishment in 2007, it has charged more than 4,200 defendants who defrauded Medicare for more than $19 billion, the agency said.

Click here to read the press release issued by the DOJ.

To read about a similar record-breaking telehealth fraud case in Florida, click here.

Contact Health Law Attorneys Experienced in Handling Medicare Audits, Investigations and other Legal Proceedings.

The attorneys of The Health Law Firm represent healthcare providers in defending audits and investigations by the Department of Health and Human Services, the Department of Justice, The Drug Enforcement Administration (DEA), the Florida Department of Health (DOH), the Colorado Department of Regulatory Agencies, Medicaid Fraud Control Unit (MFCU), state boards of medicine, state boards of pharmacy, and state boards of nursing. They also represent health professionals and providers in administrative litigation (state and federal) and civil litigation (state and federal). They represent physicians, nurses, medical groups, nursing homes, home health agencies, pharmacies, dentists, pharmacies, assisted living facilities, and other healthcare providers and institutions in recovery actions and termination from Medicare and Medicaid Programs.

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

Sources:

Allen, Jackie. “DOJ charges 345 people involve in more than $6 billion healthcare fraud.” USA Herald. (October 3, 2020). Web.

Stawicki, Keven. “DOJ Charges 345 In Health Fraud Schemes Topping $6B.” Law360. (September 30, 2020). 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 Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 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 © 2021 The Health Law Firm. All rights reserved.

 

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