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FL May Allow Providers to Avoid Past Mental-Health Conditions, Drug Issues on License Applications

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

Health care professionals ask patients about their medical histories every day for in treating them. But what happens when they are requested to divulge in their own history to the state as part of the licensing process? Before being licensed in the state of Florida, for example, health care providers are required to disclose if they have been treated for mental-health or substance-abuse disorders within in the past five years. However, this could be changing very soon.

Changes to Past Health Questions.

In December 2018, a committee of the Florida Board of Medicine gave preliminary approval to eliminate questions about past treatment of mental health and substance abuse from applications for medical licenses in Florida. Rather, applicants would be asked only whether they currently have any condition that impairs them from safely practicing.

Medical history questions are asked during the initial application for license, whether the applicant is a new physician or a physician from another state who is seeking a Florida license. This is true for most states. The new questions are designed to be more open-ended and lend themselves to subjective answers.

The proposal to change the initial application questions comes after several studies revealed an alarming suicide rate among physicians and medical students. According to a 2015 study published in the journal JAMA Psychiatry, between 300 and 400 physicians commit suicide each year.

Despite these numbers, the proposal still requires full board approval and faces opposition from some board members.

Click here to read one of my prior blogs about rising baker acts among college students in Florida.

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

The attorneys of The Health Law Firm provide legal representation to physicians, physician assistants, nurses, nurse practitioners, cardiologists, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Sexton, Christine. “Florida doctors may avoid revealing past mental-health and drug-abuse issues.” Orlando Sentinel. (January 16, 2019). Web.

“Change Seeks To Remove ‘Stigma’ For Doctors.” Health News Florida. (January 16, 2019). 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation Board of Medicine cases, Board of Medicine Representation, legal representation for physicians, legal representation for licensure issues, licensure defense lawyer, legal representation for licensure defense, legal representation for medical students, residents and fellows, legal representation for Board of Medicine hearings, legal representation for complaints against license, Medical Board Cases representation, legal representation for nurses, nurse representation, Board of Nursing Representation, Medical Board defense lawyer, Medical Board representation, Florida health law defense attorney, legal representation for U.S. Department of Health (DOH) investigations, employment law defense attorney, legal representation for employment issues, legal representation for health care professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews, health law defense attorney, mental health facility defense counsel, mental health professional defense attorney, psychologist defense counsel and legal representation, social worker legal counsel and mental health counselor defense attorney, legal representation for Credentials Committee of Board of Medicine

“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 © 2019 The Health Law Firm. All rights reserved.

Virginia Doc Lands 40 Years in Prison For Running Multi-state Pill Mill

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 2, 2019, a Virginia doctor received a 40-year prison sentence for illegally prescribing more than half a million opioid pills over 19 months. The U.S. District Court for the Western District of Virginia handed down the sentence to Joel Smithers, who was reported to have operated a “pill mill” out of Virginia, according to authorities. In addition to prison time, he was given an $86,000 fine and will serve three years of supervised release upon the completion of his prison time, according to court documents.

The sentence is lighter than it could have been. He was facing up to life in prison and a fine of more than $200 million, according to officials at the U.S. Justice Department. Click here to view the court’s sentencing document in full.

Alleged Interstate Drug Distribution Network.

In May 2019, Smithers was convicted by a jury on more than 859 federal drug charges, including one count of possessing with the intent to distribute controlled substances and one count of maintaining a place for the purpose of unlawfully distributing controlled substances. Additionally, he was also convicted on hundreds of counts of unlawfully distributing a controlled substance without a legitimate medical purpose or beyond the bounds of medical practice.

When he opened his Virginia practice in 2015, Justice Department officials said he prescribed controlled substances to “every patient in his practice, resulting in over 500,000 Schedule II controlled substances being distributed.” Authorities say that he allegedly ran an operation that was less a medical practice and more an interstate drug distribution network.

Smithers was able to rake in over $700,000 in cash and credit card payments before the search warrant was executed at his office on March 7, 2017. Click here to read the press release issued by the U.S. Attorney’s Office in the Western District of Virginia.

To learn about a similar case involving two Florida doctors, click here.

The Problems I See.

I tell you that I take issue with many of the cases of this sort. I do not know enough about the actual facts of this physician’s case, but I can comment generally based on other similar cases I have had in the past. The government, both state and federal, has come down like a hammer on individual physicians and pharmacists in its over-zealous campaign to crack down on opioids. Many physicians and pharmacists, just trying to do a good job and legitimately treat their patients, are being caught up and persecuted. Chronic pain patients, many of whom are disabled veterans or people injured on the job, are unable to find physicians to treat them anymore or, if they can, any pharmacists willing to fill their prescriptions.

All sorts of under-handed techniques are used to try to make a case against conscientious health professionals who are merely trying to do their jobs. These do include the tactic seen in the case we are reporting on, which I call “bean counting.” The government comes in and, instead of proving how many allegedly illegal prescriptions were written or how many patients the physician gave the prescriptions to, breaks these out into the number of pills. This greatly exaggerates the case and these large numbers alone make it look like the doctor (or pharmacist) is doing something wrong or extremely way out of the norm.

For example, if a patient was receiving a low dose of a pain killer, say 10 mg Oxycodone every 4 to 6 hours, prescribed for four times a day, the ordinary monthly prescription for this medication alone (and such patients rarely receive one type of medication alone) this equates to 120 pills per month. If 10 mg pills are not available and/or the prescription is filled with 5 mg pills, instead, this is 240 pills a month. A years’ worth is 1,440 pills or 2,880 pills for just one patient. If the physician has 50 similar patients, this is 72,000 pills or 144,000 pills a year that the physician is writing and a pharmacy or pharmacies are filling.

This does not seem extreme or unusual to me, at all, and these amounts are on the low side. Yet just as government agencies love to inflate the “street value” or contraband drugs they seize, they love to break down the number of opioids a physician writes so it seems to a layperson to be extraordinarily large. Furthermore, a pain management physician or any other kind of physician cannot survive with just 50 patients a month. It is far more likely for a physician to have a thousand (1,000) or more patients a month. I call this type of numerical exaggeration “bean counting.” But it has put a number of physicians and pharmacists in jail.

Judges should not allow such exaggerated numbers to be introduced into evidence in the absence of further information that places them in context. It is unfairly prejudicial to the defendant to do so.

Contact Health Law Attorneys Experienced with DEA Cases.

The attorneys of The Health Law Firm are experienced in handling Drug Enforcement Administration (DEA) cases, board of medicine cases and board of pharmacy cases regarding allegations of over-prescribing and illegal prescribing. If you are currently being investigated or facing other adverse actions by the DEA contact one of our attorneys by calling (407) 331-6620 or (850) 439-1001. You can also visit our website for more information at www.TheHealthLawFirm.com.

Sources:

Booker, Brakkton. “Doctor Gets 40 Years For Illegally Prescribing More Than Half A Million Opioid Doses.” NPR. (October 2, 2019). Web.

“Virginia doctor could get life in prison today for prescribing 500,000 opioid pills.” RTV6. (October 2, 2019). Web.

Almasy, Steve. “Virginia doctor who illegally prescribed 500,000 opioid pills sentenced to 40 years in prison.” CNN. (October 2, 2019). 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: legal representation for pain management physicians and pharmacists, legal representation for pharmacies, pharmacy defense attorney, pain management physician defense attorney, pharmacist defense lawyer, pain management physician defense lawyer, representation for False Claims Act (FCA) investigation, False Claims Act representation, FCA defense lawyer, board representation for pharmacists, board representation for pharmacies, board representation for physicians, Board of Pharmacy investigation representation, legal representation for board investigations, Drug Enforcement Administration (DEA) defense attorney, board of medicine attorney, board of pharmacy attorney, Department of Health investigations, pain clinics, over prescribing painkillers, Drug Enforcement Administration (DEA) investigation attorney, The Health Law Firm, administrative hearing defense attorney, DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, administrative complaint representation, Board of Medicine representation, Board of Medicine attorney, Board of Medicine defense attorney, representation for Board of Medicine investigations, representation for Board of Medicine complaints, DEA hearing defense attorney, DEA investigation attorney, DEA hearing representation, DEA investigation representation, representation for DEA investigations against physicians, representation for pill mill allegations, representation for allegations of overprescribing, representation for overbilling, DOJ defense lawyer, representation for DOJ investigations, representation for health care professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney

“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 © 2019 The Health Law Firm. All rights reserved.

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Legally Speaking: Professional Liability Insurance for Psychologists, Mental Health Counselors, Social Workers and Therapists

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

Those supervised by the Board of Psychology and the Board of Clinical Social Work, including Marriage and Family Therapy and Mental Health Counseling, psychologists, Licensed Mental Health Counselors, Clinical Social Workers and Licensed Marriage and Family Therapists are responsible for one of the most important component of patient care: mental health.

Professional Liability Insurance.

Insuring the mental health of a patient does not come without inerrant risks. For this reason, every mental health professional should carry professional liability insurance that includes professional license defense coverage (sometimes called disciplinary defense, license defense, administrative hearing coverage or broad coverage). This type of insurance coverage is included in most professional liability policies. However, if it is not, it can often be added as a rider to the insurance policy for an additional charge. Mental health professionals should be sure that coverage for professional license defense is at least $25,000 and a $50,000 increase is recommended.

“Broad form coverage” should also be requested and obtained that includes coverage of legal fees for defense of all administrative or governmental proceedings, including Medicare audits, Medicaid audits, EEOC complaints, and other types of governmental actions that could be initiated.

Though mental health may not seem like a high-risk field, if dissatisfied, patients can file complaints that can lead to serious consequences. These complaints can be initiated against a mental health professional based solely on anonymous calls to the Department of Health Hotline, newspaper reports, prior arrest reports, disgruntled patients, disgruntled insurance companies, competitors, or other sources. Once an investigation is initiated, psychologists, therapists, counselors and other mental health professionals should obtain legal representation immediately to ensure that each action on the part of the psychologist or other mental health professional will result in a more favorable outcome.

Retain a Board Certified Health Lawyer.

A board certified health lawyer experienced in representing mental health professionals will be the most qualified to handle a DOH case. A mental health professional may never face a DOH investigation or Board of Psychology or Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling administrative hearing, but it is important that every psychologist and counselor has knowledge of current legislation impacting the psychology field. The Florida Statutes have recently been updated to prohibit anyone from using the title of “social worker” unless certain requirements are met.

Additionally, there have been changes made to guidelines for treatment programs for impaired professional and psychologist reporting requirements.

Contact Health Law Attorneys Experienced in the Representation of Mental Health Counselors, Psychologists, Social Workers, and Marital and Family Therapists.

We have had mental health professionals who became victims of completely unreasonable demands from their clients/patients (house sitting, pet sitting, etc.), stalking by their clients/patients, identity theft and computer hacking by their clients/patients. Don’t become a victim yourself.

The attorneys of The Health Law Firm can assist and advise you in dealing with difficult clients/patients. We can stop stalking, cyber-stalking and harassment. We can respond to client/patient letters. We can defend you if a client/patient files a complaint against you.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 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., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Mental Health Counselor Law, Occupational Therapist representation, mental health representation, mental health counselor attorney, mental health attorney, Mental Health Counselor representation, legal counsel for mental health professionals, mental health defense lawyer, representation for mental health professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews, Florida mental health professional representation, Florida mental health professional attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2018 The Health Law Firm. All rights reserved.

Autistic Kids in Florida May Lose Care as Medicaid fraud Investigation Continues

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

On July 26, 2018, state investigators revealed that six behavioral therapists in Florida billed the state for “impossible” days of service that at times indicated they worked for more than 24 hours in a day. The six therapists, who worked with low-income children with autism, were then subsequently terminated from the Medicaid program.

The company that employed them, DRA Behavioral Health, was among four South Florida behavioral therapy companies sanctioned by the Agency for Health Care Administration (AHCA) for failing to pay fines, hiring unqualified therapists and failing to disclose required information to the state.

Is AHCA Delaying Health Care?

While AHCA continues its probe into behavior analysis services paid for by Medicaid, schools and programs say the agency is dragging out authorizations for therapy and approvals of new therapists. Thus, AHCA is effectively preventing children from getting therapy for months while reducing the costs to the state.

Advocates claim that AHCA used wrong or outdated information as a reason to suspend their therapists from Medicaid and then forced the provider to repay thousands of dollars.

In response, AHCA has urged parents of children with Medicaid to contact the agency if they are having difficulty getting behavioral analysis services as the state continues to add new providers to meet demand. For more information, click here.

Be sure to check our Mental Health Law Blog regularly for updates.

Contact Health Law Attorneys Experienced in the Representation of Mental Health Counselors, Psychologists, Social Workers, and Marital and Family Therapists.

We have had mental health professionals who became victims of completely unreasonable demands from their clients/patients (house sitting, pet sitting, etc.), stalking by their clients/patients, identity theft and computer hacking by their clients/patients. Don’t become a victim yourself.

The attorneys of The Health Law Firm can assist and advise you in dealing with difficult clients/patients. We can stop stalking, cyber-stalking and harassment. We can respond to client/patient letters. We can defend you if a client/patient files a complaint against you.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Chang, Daniel. “Autistic kids could lose care as Florida cracks down on Medicaid fraud.” Miami Herald. (July 26, 2018). Web.

Viteri, Amy. “Autistic children caught up in Medicaid fraud investigation.” (August 7, 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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Representation for Medicare fraud, Medicare fraud investigation representation, Medicare attorney, Medicare fraud defense lawyer, representation for AHCA investigations, AHCA attorney, representation for health care professionals, doctor lawyer, doctor attorney, representation for doctors, doctor defense attorney, health care professional defense lawyer, health law defense attorney, health care facility representation, health care law defense, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Florida health law firm, Florida health law defense attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

Massachusetts Insurance Company Sued in Mental Health Discrimination Suit

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

On July 20, 2018, a Massachusetts federal judge allowed a woman to move forward with a proposed class action against Harvard Pilgrim Health Care Insurance Company (Harvard Pilgrim). The woman is claiming that Harvard Pilgrim, which covers medical expenses at nursing homes, must also cover mental health care at her son’s behavior-correcting summer camp.

Mental Health Parity Act.

U.S. District Judge Denise J. Casper denied a motion to dismiss from the insurer, saying that the plaintiff adequately equated the two types of health settings in a lawsuit. In the suit, the insurer is accused of violating the Mental Health Parity Act when it denied coverage for behavioral services at wilderness programs. Its blanket exclusion for services rendered at wilderness treatment programs is a separate treatment limitation applicable only to mental health benefits and thus violative of the Parity Act.

The statute generally requires insurers to cover mental health treatments on the same terms that they cover medical and surgical care. As a result of this violation, the plaintiff was forced to pay more than $16,000 out of pocket for her teenage son, the lawsuit alleges.
Click here to view the complaint in full.

The Defendant’s Arguments.

In response, Harvard Pilgrim argued that it excludes wilderness-like medical benefits such as diabetes camps, so excluding wilderness mental health care is not differential. In addition, in court documents it insisted that the correct comparison was whether both types of treatment, physical and cognitive, would be excluded if offered through a wilderness program.

Despite the arguments, Judge Casper stated that the First Circuit has held that a plan administrator, in terminating or denying benefits, may not rely on a theory for its termination or denial that it did not communicate to the insured prior to litigation. To read Judge Casper’s order in full, click here.

Contact Health Law Attorneys Experienced in the Representation of Mental Health Counselors, Psychologists, Social Workers, and Marital and Family Therapists.

We have had mental health professionals who became victims of completely unreasonable demands from their clients/patients (house sitting, pet sitting, etc.), stalking by their clients/patients, identity theft and computer hacking by their clients/patients. Don’t become a victim yourself.

The attorneys of The Health Law Firm can assist and advise you in dealing with difficult clients/patients. We can stop stalking, cyber-stalking and harassment. We can respond to client/patient letters. We can defend you if a client/patient files a complaint against you.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Wille, Jacklyn. “Harvard Pilgrim Sued Over Wilderness Therapy Coverage.” Bloomberg Law. (July 24, 2018). Web.

Noon, Alison. “Harvard Pilgrim Must Face Mental Health Discrimination Suit.” Law360. (July 24, 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 the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Mental Health Counselor Law, Occupational Therapist representation, mental health representation, mental health counselor attorney, mental health attorney, Mental Health Counselor representation, legal counsel for mental health professionals, mental health defense lawyer, representation for mental health professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews, Florida mental health professional representation, Florida mental health professional attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 2018 The Health Law Firm. All rights reserved.

New Mexico’s Largest Mental Health Providers Accused of Defrauding Medicaid Out of $36 Million

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

For months now, 15 New Mexico behavioral health agencies have been the subject of a Medicaid fraud investigation. The state’s largest mental health providers had their Medicaid funding frozen by the New Mexico Human Services Department (HSD) due to credible allegations of fraud, according to KUNM News. The behavioral health agencies are accused of collectively defrauding Medicaid of $36 million over three years. The findings in an audit conducted in 2012, by OptumHealth, the contractor that handles Medicaid payments for New Mexico’s behavioral health system, alarmed state officials to the point that they hired Public Consulting Group (PCG), a firm that specializes in Medicaid fraud, to conduct another audit in June 2013.

These behavioral health agencies provided services to approximately 30,000 patients. According to KUNM News, Arizona companies have been hired to step in to help patients needing treatment.

Click here to read the KUNM News article.

Audits and Whistleblower Claims Uncover Serious Accusations.

The reason for the Medicaid funding freeze, according to the HSD, was the initial audit conducted by OptumHealth, the company that manages Medicaid dollars for New Mexico’s behavioral health agencies. OptumHealth allegedly found problems with billing by the agencies in question. Then a second audit by PCG allegedly uncovered widespread overpayments for services that had never been provided. According to the New York Times, a quarter of patients’ claims were processed with mistakes.

During the PCG audit, whistleblowers also came forward with their own accusations, according to the New York Times. In one case, an employee was allegedly ordered not to inform the state that a patient had died. In another, an ex-employee at an agency reported being fired after refusing to overbill for services.

Click here to read the entire New York Times article.

To learn more on whistleblower cases, read our two-part blog. Click here for part one, and click here for part two.

Mental Health Providers Fight for Funding.

New Mexico officials state that they were obligated under federal law. Under the Affordable Care Act, states have more power to suspend payments when there is credible evidence that Medicaid dollars are being misused. All 15 mental health providers sought exceptions from the state so their Medicaid funding could be restored while the investigation continues. Only three exceptions were granted, according to the New York Times.

Mounting Pressure to Root Out Medicare and Medicaid Fraud.

Just this year, we’ve noticed the government become more aggressive in its anti-fraud and recovery efforts. The Affordable Care Act also gives investigators and prosecutors new tools to crack down on abuse. Now that the government is collecting more money, you can expect their efforts to get worse.

Since whistleblowers stand to receive up to thirty-five percent (35%) of a recovery made by the government, plus attorney’s fees and costs, you can expect more whistleblower lawsuits to be filed. Therefore, it is now more important than ever to verify accurate billing and coding.

Most Qui Tams Filed by Doctors, Nurses and Employees.

From our review of qui tam cases that have been unsealed by the government, it appears most of these are filed by physicians, nurses or hospital staff employees who have some knowledge of false billing or inappropriate coding taking place. Normally the government will want to see some actual documentation of the claims submitted by the hospital or other institution. Usually physicians, nurses or staff employees have access to such documentation. Whistleblowers are urged to come forward as soon as possible. In many circumstances, documentation that shows the fraud “disappears” or cannot be located once it is known that a company is under investigation.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Individuals working in the health care industry often become aware of questionable activities. Often they are even asked to participate in it. In many cases the activity may amount to fraud on the government. Has this ever happened to you? Please leave any thoughtful comments below.

Sources:

Frosch, Dan. “Fraud Investigation Unsettles Mental Health Care in New Mexico.” New York Times. (September 16, 2013). From: http://www.nytimes.com/2013/09/14/us/fraud-investigation-unsettles-mental-health-care-in-new-mexico.html?pagewanted=all&_r=0

Ahtone, Tristan. “A Timeline of NM’s Shakeup of Behavioral Health Providers.” New Mexico In Depth. (September 13, 2013). From: http://www.nmindepth.com/2013/09/13/a-timeline-of-nms-shakeup-of-behavioral-health-providers/#

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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. Copyright © 1996-2012 The Health Law Firm. All rights reserved.

It’s Always a Bad Idea For Mental Health Professionals To…

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

In my 30 plus years of practice representing physicians, dentists, nurses and mental health professionals, I have defended clients involved in many different situations. Several of these seem to be problem areas which we see repeatedly.

Following is a list of those problems which it would seem to be common sense for a mental health professional or other health care professional to avoid doing. If you do any of these you can rest assured that you will eventually be confronted with charges and an investigation by your state licensing board, the Drug Enforcement Administration (DEA), your national certification board, any facility at which you have privileges and other law enforcement agencies.

I can assure you, it is always a bad idea for a mental health professional or other health care professional to:

1. Write a prescription for any medication for yourself.

2. Start a romantic relationship with a patient.

3. Take someone else’s prescription medication, ever.

4. Write a prescription for or treat a patient, especially a family member, for a condition outside the scope of his or her specialty (e.g., a dentist prescribing antibiotics to her children to treat a cold; a pediatrician prescribing pain medications for an adult; an OB/GYN prescribing antidepressants for a male).

5. Write any prescription for or treat any patient who is in another state when the mental health professional is not licensed in that state.

6. Treat or prescribe for any spouse, other family member, friend or colleague, without opening a medical record and fully documenting the treatment or prescription, as you would for any other patient.

7. Hire a patient to work for you in your office or allow a patient to “volunteer” to work in your office.

8. Pre-sign blank prescriptions for your assistant, ARNP, Medical Assistant, receptionist, or anyone else, to complete later.

9. Seek psychotherapy or drug/alcohol abuse treatment with a physician or HCP health professional in your own medical group, institution or the staff of your hospital.

10. Add to, alter or change any medical record entry after you know there may be a claim, investigation or litigation involving it.

11. Take and use your own drug samples provided by pharmaceutical companies.

12. Go into a hospital where you do not have clinical privileges and treat or “assist” in treating a patient there, even if it is your own patient.

13. Have a sexual relationship ( including “sexting” or “telephone sex”) with a patient or patient’s immediate family member.

14. For a mental health professional (psychiatrist, psychologist, mental health counselor, social worker, psychiatric nurse practitioner) to have any type of social relationship with a current patient.

If you find yourself doing any of the items listed above, don’t wait until it’s too late. An experienced health care attorney can help guide and defend against licensing issues including investigations from your state licensing board and the DEA.

Contact Health Law Attorneys Experienced in the Representation of Psychiatrists, Mental Health Counselors, Psychologists, Social Workers, and Marital and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to psychiatrists, mental health counselors, psychologists, social workers and family therapists in Department of Health (DOH) investigations, medical malpractice investigations, business transactions, contracts, structuring business ventures, clinical privileges actions, professional licensure matters, Board hearings, business litigation, Medicare and Medicaid audits, and other types of investigations of health professionals and providers.

Often the early advice and representation of an experienced health law attorney can help avoid discipline which will be on your record for a lifetime.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Items health care professionals should avoid doing, investigation by state licensing board, Drug Enforcement Administration (DEA), licensure defense for health care professionals, legal representation for health professionals, DOH investigations, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

First Medical Marijuana Dispensary in Hawaii Gets Green Light From DOH

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On August 8, 2017, after waiting 17 years, Hawaii will begin dispensary sales of medical marijuana to patients. Maui Grown Therapies got the green light from the Hawaii Department of Health (DOH) to begin selling medical cannabis. I know (from reliable sources, that is) that Hawaiian grown marijuana has always been a favorite with the connoisseur.

Maui Grown Therapies.

The Maui dispensary has been pre-registering patients and will begin selling medical cannabis to patients by appointment only, said Freitas Gorman, director of community relations and patient affairs. Walk-in sales will start in about a week.

In 2000, Hawaii was among the first states to legalize medical marijuana. But the state didn’t legalize dispensaries until 2015, so the state’s 18,000 patients had to grow or obtain the drug on their own.

“This is an important day for qualified patients and caregivers on Maui who now have assurance the medical cannabis they purchase at Maui Grown Therapies has been thoroughly tested and is safe for them to use,” said Virginia Pressler, director of the state Department of Health, in a statement. “Implementing a new health program is always challenging, and the dispensary program was no exception.”

To read the press release from the DOH, click here.

To read more on the status of medical marijuana in Florida, click here to read my prior blog.

To learn more about how the attorneys of The Health Law Firm can assist you in legal matters involving medical marijuana, click here.

To stay on top of medical marijuana issues, be sure to check out our Medical Marijuana Law Blog regularly.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

Sources:

Bussewitz, Cathy. “FIRST MEDICAL MARIJUANA DISPENSARY OPENING IN HAWAII.” The Associated Press. (August 8, 2017). Web.

Department of Health. “First dispensary receives approval from Department of Health to
begin sales of medical cannabis for Hawai‘i patients.” State of Hawaii, DOH. (August 8, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with 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, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Medical marijuana legislation, medical marijuana defense attorney, legal representation for medical marijuana, legal representation for Department of Health issues, medical marijuana representation in Florida, Medical and recreational marijuana use, legal counsel for medical marijuana, marijuana defense attorney, complex health related business transactions, legal opinions on medical issues, legal representation for medical marijuana growers and distributors, legal counsel for medical marijuana, DOH defense attorney, The Health Law Firm attorney reviews, The Health Law Firm reviews, Florida medical marijuana defense attorney, Board of Medicine defense lawyer, reviews of The Health Law Firm, access to medical marijuana in Florida, The Health Law Firm, legal representation for applicants of marijuana dispensary license, legal representation for marijuana dispensary medical directors, legal representation for contracts for marijuana related matters, legal representation for physicians and medical director agreements, legal representation for licensure and regulatory matters involving growers, legal representation for dispensaries and medical directors

“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 © 2017 The Health Law Firm. All rights reserved.

 

Holding off a Professional License Revocation or Suspension During Appeal

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

If you are a physician, dentist, nurse, psychologist, pharmacist, physician assistant, nurse practitioner, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. As a matter of course, you would be required to immediately stop practicing or risk being prosecuted for unlicensed practice, which is a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it becomes effective immediately, whether there was a mistake, the action taken was erroneous or because of other reasons which may support an appeal. This cuts off the health professional’s sole source of income, which may also prevent you from having enough to pay for an appeal. If you have a thriving practice, this will usually destroy any value which your business has. Without income, paying your bills will be a challenge, much less paying the legal expenses to appeal or further fight the action that was taken.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides a remedy for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a “writ of supersedeas.”

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the decision of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH), in the case of a health care professional. The same applies to other professional licenses issued by other state agencies in Florida, as well.

Supersedeas relief is authorized in two separate locations in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

This relief is not automatic, however. You must request it. Additionally, both legal authorities specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. In most cases, this is not applicable. Regardless, it is the burden of the agency which has the order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition and the appellate court will make an expedited decision on this. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

Following are the steps which an experienced health lawyer or appellate lawyer would take to obtain such relief:

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules, local court rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

We do not recommend that you attempt to represent yourself on such matters. Appeals are complex and require an intimate knowledge of the law and appellate procedures. You should engage the services of an experienced health lawyer at the earliest possible opportunity.

Other Considerations.

It is important to note that this form of relief will not make the underlying disciplinary action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. Additionally, appeals are decided based on errors made in applying the law in the case, not based on a dispute about the facts of the case. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts. This is another reason that you should have an experienced health law attorney represent you and have a full, formal administrative hearing on the case. Given the fact that most appeals will not be successful (the appellate courts err to the side of assuming the lower court or agency made the correct decision), you need to aggressively litigate and defend the action against you to try to win at the hearing or agency level. To prevail on an appeal, the attorney must have a detailed knowledge of the correct, relevant court cases and must be able to argue these in the proper form in legal briefs.

An appeal is all about the laws that apply to your factual situation and the court cases that have interpreted those laws. Unless the agency made a legal error and violated the law, you won’t win. There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you 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 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 (850) 439-1001 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Key Words: revocation of medical license, suspension of medical license, supersedeas relief, revocation of dental license, revocation of nursing license, revocation of pharmacist license, revocation of health facility license, adverse agency action, health professional defense attorney, professional license defense lawyer, health care appellate attorney, appeals from adverse agency action, appeal from professional license discipline, appeal from final order, abating final order, suspending application of final order, Department of Health (DOH) defense attorney, license suspension attorney, legal representation on license revocation, license revocation defense counsel, health care appeals defense attorney

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Mental Health Counselors and Social Workers Should Not Have Difficulty in Finding A, Attorney/layer Who Takes Cph & Associates (CPH&A) Insurance to Represent Them in Complaint Investigations

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We often hear from Mental Health Counselors, Social Workers, Psychologists and Family Therapists who call and retain us to represent them in complaints against their professional licenses in professional licensing complaints. This includes letters from the Department of Health (DOH) advising them that they are being investigated, Administrative Complaints, emergency restriction orders (EROs), and emergency suspension orders (ESOs).

In many cases they had good insurance coverage with CPH & Associates (CPH&A) Insurance, but could not find an attorney that would accept it. Often these mental health professionals retain us after adverse disciplinary action has already been taken. They retain us to appeal or attempt to reverse an adverse disciplinary action taken against their license, including revocations.

Finding legal counsel that accepts your insurance should not be a difficult task. Our firm and its attorneys have accepted CPH&A Insurance for years.

Our firm has attorneys that are licensed in and can defend psychologists, mental health counselors, social workers and other mental health professionals in Florida, Colorado, Louisiana, Virginia and the District of Columbia. Additionally, there are many states, such as Tennessee, Georgia, Oregon, Pennsylvania, New York, Delaware, and others, which allow us to appear before their boards and represent clients in these state under their “multi-jurisdictional practice” rules, because this is an area in which we routinely practice.

Legal areas in which we can represent an CPH&A insured that CPH&A will pay for include: investigations commenced against a mental health professional’s license, administrative hearings, complaints against a professional license, emergency restriction orders, emergency suspension orders, administrative complaints, appeals from adverse disciplinary actions, a deposition for which you may be subpoenaed, and many others.

Regardless of the state, contact us at:

The Health Law Firm, Main Office
1101 Douglas Ave.
ALtamonte Springs, FL 32714
Phone: (407) 331-6620
Fax: (407) 331-3030
Website: www.TheHealthLawFirm.com
Internet Contact: www.TheHealthLawFirm.com/contact-us/

One last word, regardless of whether you are covered by CPH&A Insurance or not, if an investigator contacts you to obtain a statement from you, whether orally or in writing, always, always, always, consult with an experienced attorney in this area BEFORE giving any statement or talking to the investigator about anything.

 

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, social workers and family therapists in Department of Health (DOH) investigations, FBI investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with 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, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for mental health professionals, legal representation for psychologists, Department of Health (DOH) investigations and complaints, mental health professional defense attorney, legal counsel for DOH investigations and hearings, health care professional defense attorney, legal representation for medical professionals, reviews of The Health Law Firm, The Health Law Firm attorney reviews, Florida health law attorney, legal representation for administrative hearings, legal representation for complaints against a professional license, licensure defense attorney, legal representation for a complaint made for violation of HIPAA or patient privacy, CPH & Associates (CPH&A) Insurance, legal representation for cases with CPH & Associates (CPH&A) Insurance, legal representation for mental health professionals in Florida, legal representation for mental health professionals in Colorado, legal representation for mental health professionals in Louisiana, legal representation for mental health professionals in Virginia and legal representation for mental health professionals in the District of Columbia

“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 © 2017 The Health Law Firm. All rights reserved

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