Nursing Law Blog

Florida Attorney Says AHCA Must Put Medicaid Final Orders Online

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

Florida’s Agency for Health Care Administration (AHCA) has come under fire for failing to make Medicaid final orders accessible to the public. On April 11, 2023, an attorney asked a Florida appeals court to revive her suit against AHCA, trying to force AHCA into compliance with state public records laws.

Attorney Nancy Wright says the AHCA orders fall under a state law that requires all proceedings determined by a state agency to be placed into a centralized electronic database accessible to the public. This would allow citizens and healthcare providers more accessible access to those decisions and transparency when understanding Medicaid policies and decisions made by AHCA.

Access to Medicaid Final Orders.

The plaintiff’s attorney argued before a three-judge panel of the court of appeal that she should not be required to pay hundreds of dollars to gain access to Medicaid final orders to prepare for clients’ Medicaid hearings when the law requires the agency to publish these. The attorney further argued that this fee was an unfair and unjustified barrier to justice and that she should be given free access to these orders to ensure that she could provide the best possible representation for her clients.

More Details of the Case.

The Florida Health Justice Project and the National Health Law Program filed the lawsuit against AHCA on behalf of Wright in December 2020 in the First District Court of Appeal of Florida.
“[Medicaid law’s] notorious complexity and rapid regulatory changes put even lawyers on edge,” she said in a statement at the time she filed her suit. “AHCA’s unwillingness to make their [sic] final orders accessible means that I am not able to fully advise my clients on how and why decisions on services are being made. For the many enrollees who are unrepresented, this lack of transparency makes a complicated system almost impossible to navigate.”

Click here to view the press release from The Florida Health Justice Project.

However, the trial court sided with AHCA and granted summary judgment to the agency.

The Appeal.

The Elder Law Section of the Florida Bar expressed their support for Wright and submitted an amicus brief on appeal. They highlighted that the Florida Department of Children and Families regulates Medicaid eligibility proceedings with the same law that provides authority to AHCA. Furthermore, the Department publishes its final orders in an electronic database, making them readily available to the public.

However, accessing these same orders on Medicaid coverage requires a public records request which can be costly and time-consuming. The Elder Law Section argued in its brief that this disparity is unfair as it burdens those attempting to gain access to said records. The brief further suggested that upholding the trial court’s summary judgment would only perpetuate this inequality of access to public records.

To learn more, read the complaint in full here.

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

Physicians, therapists, counselors and other health professionals who accept Medicaid are routinely audited by the Medicaid Program to detect any overpayments or fraudulent claims. Medicaid fraud is a serious crime and is vigorously investigated by the state Medicaid Fraud Control Unit (MFCU), the Agency for Healthcare Administration (AHCA), Program Integrity Contractors (PICs), the FBI, and the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies may also participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, mental health counselors, therapists, home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

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

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

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

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

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

On June 21, 2023, the Court of Appeals of Iowa overturned the verdict in a nursing home negligence case that awarded $6 million in compensation and damages to the plaintiff. The case was reversed and remanded for a new trial because inadmissible hearsay testimony was admitted into evidence by the trial court judge. The testimony being appealed was that of staff members who claimed to have heard “reports” and “rumors” of alleged abuse by a nurse on staff toward, not only the resident in question but other residents as well.

Hearsay in Iowa law is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” Click here to read the Iowa Rules of Evidence concerning hearsay. This is the same definition used by the federal courts and most other courts.

Essentially, hearsay is when someone repeats something they heard from another person and presents it as if they know it to be true. Hearsay is often equated to rumor. Hearsay is not admissible due to the nature of speculation required in making such a statement, the fact that such statements are inherently unreliable, and the fact that the actual witness is not in court to answer questions about it. Thus there is no way for a party or the judge to test the credibility of the actual witness or determine facts that may have influenced the observation and statement.

Hearsay is considered unreliable because the person who actually knows what happened (who saw what happened or heard what happened) is not present to be questioned about it. Therefore, there is no way to know what really happened for sure.

Details of the Case.

In this case, the estate of the former nursing home resident, who succumbed to her injuries after a fall in the nursing home claimed adult abuse and that negligence caused a wrongful death. In its defense, the nursing home focused on the alleged abuse by a nurse on the staff. The statements that were challenged in the appeal included testimony made by six members of the nursing home staff that residents, other unnamed employees, and an Iowa Department of Inspections and Appeals surveyor told them that the nurse in question had been physically rough with and swore at residents.

The employees testifying did not actually witness any such incidents. They were only testifying as to what they had heard someone else say (“hearsay”).

The trial court admitted these statements, allegedly not for their truth, but in an attempt to show that abuse had been reported and there had not been any follow-up investigation. The appellate court stated that this was not a valid reason to admit inadmissible hearsay into evidence because the estate must show clear proof that the conduct existed in order to prevent the jury from engaging in rampant speculation based on unreliable hearsay evidence.

People in today’s society, yes, even judges, often forget this basic principle of law. With all of the completely fabricated lies being put out as “news” on some news channels, with Internet rumors running rampant, and with politicians making egregiously false statements, it’s often hard to remember how to distinguish a fact from unreliable rumor or hearsay.

This is one of the problems with hearsay. It is often just gossip and rumor which change from person to person. Especially egregious conduct, criminal activity, and salacious acts become more and more exaggerated with each retelling. The founding fathers in English and American law realized the inherently unreliable nature of such “evidence.”

Under the hearsay rule, the Court of Appeals agreed with the nursing home that the statements being challenged were inadmissible hearsay evidence that influenced the jury’s verdict. Due to this, the court reversed the verdict and remanded the case for a new trial. To read the court’s opinion in full, click here.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents health professionals and health facilities in civil and administrative litigation. We also represent physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, board hearings, inspections, and audits involving the DEA, Department of Health (DOH), and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys. We represent medical students, interns, resident physicians, and fellows in disputes with their graduate medical education (GME) programs. We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters, and other disputes with their employers. We often act as the physician’s personal counsel in medical malpractice litigation.

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.

Source:

Kang, Y. Peter. “Iowa Court Overturns $6M Nursing Home Negligence Verdict.” Law360. (June 22, 2023). https://www.law360.com/health/articles/1691891?nl_pk=0cbd4c0b-c6c8-416a-9e67-b4affa63b102&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-06-23&nlsidx=0&nlaidx=9

About the Authors: 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. Hartley Brooks is a law clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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

Medications and Other Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests: Marijuana and THC Imposter Substances (Part 3 of Series)

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

When representing licensed health professionals, our firm often encounters issues regarding positive drug tests that employers request. These clients include nurses, pharmacists, dental professionals, mental health counselors, therapists, etc. Job seekers should be aware that employers, particularly large companies and government organizations, may require drug tests as part of the hiring process. Medical and nursing students should be aware that prior to beginning clinical rotations in a hospital or medical facility, they will be given a drug screening test.

These issues are particularly relevant when a health professional has applied to a hospital, a medical organization, or a placement agency for work in a hospital and must submit to a pre-employment drug test. The client often contends that a positive result is a false positive and that some other substance must be responsible for it.

A positive result for any drug for which you do not have a valid prescription from a physician, including marijuana, can have severe and far-reaching consequences. It could result in being eliminated from consideration for a new job or termination from a current position. It can also result in a complaint against your professional license, which could lead to suspension or revocation. This could be devastating to your career and your future job prospects. Our firm is routinely called on to defend health professionals in such situations.
This blog series will discuss the potential causes for false positive results on THC drug tests and marijuana’s changing legal status on employer-ordered drug testing.

Remember to read Part 1 and Part 2 of this blog series! Part 1 deals with substances that may cause a false positive for amphetamines. Part 2 deals with substances that may cause a false positive for cocaine.

Marijuana (THC) False Positives.

The primary psychoactive chemical in cannabis is delta-9-tetrahydrocannabinol commonly referred to as just tetrahydrocannabinol or THC. Urine drug screens are designed to detect 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid (9-carboxy-THC). THC can be detected in urine for up to three (3) days for single usage but up to four to six (6) weeks after stopping long-term heavy use.

A false positive drug test occurs when the test detects a substance that is not there. This false detection is due to cross-reactivity with the urine drug tests.

Imposter substances for cannabinoids on urinalysis drug tests include cannabidiol (CBD) oil and other hemp products, HIV medications, ibuprofen, and other non-steroidal anti-inflammatory drugs, proton pump inhibitors, and baby wash products.

CBD is the second most prevalent active ingredient in marijuana. CBD is directly derived from hemp plants. Products made from hemp plants can have trace amounts of THC, even if THC is not on the label. Long-term regular use of CBD oil and other hemp products can build up enough THC in the body to test positive for marijuana and THC on urinalysis drug tests. Vitamin B supplements, like riboflavin, are made with hempseed oil and can also produce positive THC results. Despite the THC in the hemp plant, hemp products were legalized in 2018 under the Federal Farm Bill.

HIV and AIDS medications, like efavirenz and dronabinol, can produce positive urine drug tests for marijuana. Efavirenz is a potent antiretroviral medication used to treat HIV infections and dronabinol is used to treat loss of appetite and weight loss in people with HIV/AIDS. Dronabinol is also used to treat nausea and vomiting in chemotherapy patients. Dronabinol is classified as a cannabinoid because it is a synthetic THC that was legalized for medical use in 1985, which is why it can cause positive THC drug test results.

Pain medications, like ibuprofen and other non-steroidal anti-inflammatory drugs (NSAIDs), are over-the-counter medications that treat pain and fever. Ibuprofen medicines, like Motrin and Advil, and naproxen medications, like Aleve and Naprosyn, are NSAIDs that may produce positive THC results on urinalysis drug tests.

Proton pump inhibitors are used to treat heartburn symptoms and gastroesophageal reflux disease (GERD). Pantoporazole, a specific proton pump inhibitor medication, may cause positive drug test results for THC.

Commonly used infant and newborn soap products, like CVS Night-Time Baby Bath and Head-to-Toe Baby Wash, may cause THC-positive drug test results. Some health professionals speculate that positive THC drug test results are due to baby wash products containing ingredients with a chemical structure similar to THC.

Other discussions in future blogs.

In future blogs, I intend to discuss false positive drug results associated with poppy seeds, sleep aids, antidepressants, and other commonly used substances and medications.

If you haven’t read the first two installments of this blog series, click here for part one and here for part two! As stated above, Part 1 deals with substances that may cause a false positive for amphetamines. Part 2 deals with substances that may cause a false positive for cocaine.

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

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

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

Sources:

Algren, Adam and Micheal Christian. “Buyer Beware: Pitfalls in Toxicology Laboratory Reporting.” National Library of Medicine. (May-June 2015). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6170116/#:~:text=Heavy%2C%20daily%20cannabis%20users%20can,ethacrynic%20acid%2C%20and%20baby%20soaps.

Cotton, Steve, et al. “Unexpected interference of baby wash products with a cannabinoid (THC) immunoassay.” PubMed. (June 2012). https://pubmed.ncbi.nlm.nih.gov/22465236/

Gragnolati, Amy. “These 10 Medications Can Cause a False Positive on Drug Tests.” GoodRx Health. (14 July 2022). https://www.goodrx.com/drugs/side-effects/these-medications-can-cause-a-false-positive-on-drug-tests

Grinspoon, Peter. “Cannabidiol (CBD): What we know and what we don’t.” Harvard Health Publishing, (21 September 2021). https://www.health.harvard.edu/blog/cannabidiol-cbd-what-we-know-and-what-we-dont-2018082414476

“Marijuana Legality by State.” DISA. (1 August 2023). https://disa.com/marijuana-legality-by-state

Olsson, Regan. “What Medications Can Cause False Positives on Drug Tests?” Banner Health. (7 January 2023). https://www.bannerhealth.com/healthcareblog/teach-me/what-can-cause-false-positives-on-drug-tests

O’Donnell, Brian, et al. “StatPearls: Dronabinol.” National Library of Medicine. 2023. https://www.ncbi.nlm.nih.gov/books/NBK557531/

Rodriguez, Austin, et al. “Employer Drug-Testing Policies Must Evolve With State Law.” Law360. (19 July 2023). https://www.law360.com/health/articles/1696737?nl_pk=0cbd4c0b-c6c8-416a-9e67-b4affa63b102&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-07-20&read_main=1&nlsidx=0&nlaidx=26

Saltiman, Alec, et al. “False-Positive Interferences of Common Urine Drug Screen Immunoassays: A Review.” Journal of Analytical Toxicology, Volume 38, Issue 7. (September 2014) Pages 387-396, https://academic.oup.com/jat/article/38/7/387/2798054

“The Best Defense For Positive Drug Test.” Overland. (12 May 2023). https://overlandiop.com/how-to-dispute-a-false-positive-drug-test-result/

About the Authors: 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

Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.

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

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Nurses: You Must Insure Your Legal Protection

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

I have news for you: You need professional liability insurance! But you only need the kind that includes professional liability insurance coverage and in the amount of $25,000 or more.

Are you a traveling nurse? Are you a nurse who works for a hospital or nursing home? Are you a nurse who works in a doctor’s office? Are you the nurse telling me: “I think I have insurance coverage through my employer?”–WRONG! Not professional license complaint defense insurance. You need to personally purchase your nursing professional liability insurance containing professional license defense coverage. If you have yet to purchase this, you don’t have this.

The Insurance Coverage You Really Need.

Though many nurses pursue a career in nursing hoping that they will never face a complaint or disciplinary charges, any event not within a nurse’s control can lead to an investigation or administrative action. Nurses must ensure they are covered with appropriate insurance if this occurs. In our opinion, based on decades of representing nurses, the primary reason that a nurse should purchase a professional liability insurance policy is to obtain coverage for the legal defense against complaints of licensing and disciplinary action commenced against a nurse.

License defense coverage pays the legal fees and costs associated with defending a nurse when an investigation is initiated that may result in action against her nursing license or disciplinary action against the nurse. Coverage is usually available when the nurse receives written notice that an investigation by a state agency has been initiated. It will also cover formal complaints against the nurse, informal hearings before the Board of Nursing, and formal administrative hearings before an administrative law judge. Such investigations, complaints, and administrative action may be opened based on events, including patient complaints, hotline calls, Code 15 reports, nursing home, and home health agency surveys, abuse investigations by the Department of Children and Families (DCF), newspaper articles, copies of lawsuits, and many other sources. It is far more likely that a nurse will be involved in one of these types of actions than being sued for nursing negligence.

You Want Insurance that Meets These Criteria.

Good professional liability policies, which provide coverage for licensure defense, will usually compensate the nurse for her out-of-pocket expenses (travel, postage, etc.), as well as lost wages because of working time missed for hearings, depositions, etc. However, the maximum coverage available under such policies for licensure defense is usually limited to approximately $25,000. This amount will usually be sufficient to provide for most of the legal fees and costs involved in defending such a case.

Crucial to Check and Make Sure That Claims For Insurance Coverage Do Not Have to Be Linked to Malpractice Complaints.

Many professional liability insurance companies try to get off the hook on covering nurses on complaints against the nurse’s license, relying on the insurance policy’s provisions stating that any coverage must be based on a claim of nursing malpractice. AVOID THESE INSURERS AT ALL COSTS. Most complaints against nurses’ license do not involve a claim made for nursing malpractice. To be sure, ask your insurer in writing ahead of time and get the answer in writing. By the way, you never have this problem with Nurses Service Organization (NSO) Insurance or CPH & Associates Insurance.

Who Files the Most Complaints Against Nurse’s Licenses? Employers.

Our experience has been that most complaints against nurses’ licenses are made by their former employer and/or former recruiting company. Think about it, is your employer going to pay for insurance that covers you and provides you a defense in the event that employer files a complaint against your license. The answer is “NO” regardless of what you think.

You are on your own. Buy your own insurance. It is very cheap, and it will be there when you need it.

Even if the nurse is still employed (unlikely in the vast majority of cases), many employers will not provide legal representation if the matter involves licensing or disciplinary action against the nurse. This could force the nurse to fund all the fees and costs associated with her defense. However, some larger corporations with sound risk management programs will provide the nurses with legal representation, but this is a rare exception.

Your Own Personal Insurance is a Must for Traveling Nurses and Agency Nurses.

Suppose you are an agency nurse, a home health agency nurse, a nursing home nurse, an independent duty nurse, or a large hospital chain does not employ you. In that case, you should consider nursing liability insurance mandatory. Complaints of negligence against nurses working in these positions are far more likely. This may be because of the high turnover of nurses in some healthcare facilities (such as nursing homes), or because the nurse is no longer employed at the facility when the investigation begins (for example, in the case of an agency nurse). Additionally, agency nurses may only work in a facility for a short period, making them less familiar with the facility’s policies and procedures and not a part of the permanent team of nurses who may have established relationships and are more likely to cover for each other.

As previously mentioned, several different proceedings may be covered by the licensure defense coverage provided in professional liability insurance. Defense of accusations of HIPAA privacy breaches is the most used one, followed closely by deposition representation.

The Cost of Professional Liability Coverage is Minimal.

Nurses can purchase liability coverage rather inexpensively. For example, an excellent insurance policy providing coverage for nurses is available through the Nurses Service Organization (NSO) Insurance for less than $100 per year. CPH & Associates Insurance is also inexpensive and competitive. Professional liability coverage provided by this type of insurance represents a bargain at these rates.

Focusing on Protecting the Nurse’s Individual Interests.

Perhaps most importantly, the nurse should have an attorney focusing only on her interests in defending her against any negligence or licensing complaint. A nurse with her own professional liability insurance coverage will be able to hire a separate, independent attorney, and often, the insurer will allow her to pick her attorney.

Important Considerations When Purchasing Liability Insurance Protection.

First and foremost is to be sure that a claim for defense of your professional license is covered by your insurance, even when there is no separate claim or complaint for damages for malpractice or negligence. Ask your broker or insurer to give you written acknowledgment of this if your policy is unclear.

A close second is the amount of coverage for license defense that the insurer provides. $25,000 is the absolute minimum and may not be enough. Look for $35,000 or $50,000 coverage or buy two different policies from two different companies.

Third is how broad the coverage is and whether it also covers other types of administrative complaints and proceedings that might be brought against you such as discrimination complaints, HIPAA breach of privacy complaints, certification board complaints, and other similar proceedings.

Some professional liability insurers have a “broad form” of coverage that may provide legal defense for the nurse in almost any administrative action. This might include, for example, defense of a discrimination complaint filed against the nurse with the Florida Commission on Human Relations (FCHR) or the U.S. Equal Employment Opportunity Commission and for Medicare and Medicaid complaints.

Other companies limit coverage to only actions that may result in disciplinary action against the nurse’s license. The nurse should always attempt to get the broadest coverage available for disciplinary defense and licensure defense coverage.

Additionally, the nurse should inquire whether she will be allowed to select her own attorney. Many insurance companies contract certain law firms to provide legal services on their cases for a reduced fee. The insurance company may require you to use one of its own hired attorneys or even one of its in-house attorneys, which it employs directly.

Given the limited number of attorneys with experience handling nursing law issues and malpractice cases, the nurse should attempt to obtain coverage through a company that allows her to choose her attorney.

In Our Opinion, License Defense Coverage Is the Most Important Reason to Purchase Insurance.

The most important reason to purchase professional liability insurance is the licensure defense coverage. A nurse does not want to risk losing her nursing license because she was unsuccessful at defending an investigation complaint against her license or did not have the resources to do so. Since there are far more complaints filed each year against nurses’ licenses than there are nursing malpractice lawsuits filed, it is far more likely that a working nurse will need legal defense of a licensure complaint investigation.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses and nurse practitioners in Department of Health (DOH) investigations, in appearances before the Board of Nursing (BON) in licensing matters, in formal and informal administrative hearings, and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

States Take Action to Stop Nurses From Certain Schools From Caring For Patients

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

In late February 2023, multiple states began taking action against licensed practical nurses (LPNs) and registered nurses (RNs) because of the FBI’s “Operation Nightingale.” This is also being pushed by the National Council of State Boards of Nursing (NCBSN). “Operation Nightingale” is a federal investigation into a wire fraud scheme in which a number of now-closed Florida nursing schools allegedly sold phony nursing diplomas and transcripts from 2016 to 2022, which they then used to apply for and receive nursing licenses.

As a result of this, state nurse licensing officials are scrambling to stop nurses with fraudulent academic credentials from caring for patients. Thousands of notices of investigation from various states have gone out to nurses who indicated on their original licensing applications that they had graduated from one of these Florida Schools. What is really disheartening, however, is the fact that many of the schools involved were fully accredited schools of nursing. What is even more disheartening is that many nurses actually attended courses at these schools and did clinical rotations at these schools, earning their degrees honestly. Even these are receiving notices that they are now under investigation.

According to prosecutors, about 7,600 students paid an average of $15,000 for bogus diplomas. In addition, around 2,400 people passed a licensing exam to obtain jobs as registered nurses and licensed practical nurses in multiple states. It is not entirely clear how many of the roughly 2,400 nurses with credentials from the identified schools are currently employed, or where, officials said.

If you are a nurse who receives one of these notices of investigation from the Florida Department of Health (DOH) or any state board and you have insurance from CM&F Group, Nursing Service Organization (NSO), CPH & Associates, or one of the other professional liability insurance companies, your insurance company may cover your legal defense expenses. Call your insurance company or call us.

Are Honest Nurses Getting Caught Up In the Investigation? Yes, they are!

Attorneys for several nurses in New York and Georgia argue that nurses who legitimately earned diplomas are getting caught up in the investigation. “There are obviously people who bought transcripts who are fraudulent and should not be practicing nursing under any circumstances,” said Atlanta attorney Hannah Williams. “But there are also people who went to those schools legitimately and did nothing wrong. And they are somehow being lumped together with the fraudulent nurses.” The Health Law Firm’s president, George F. Indest III, in Orlando, Florida, also confirmed what Ms. Williams stated.

Additionally, New York’s Office of the Professions posted on the New York Education Department’s website that it expects some of the 903 licensees who attended the schools [who are now licensed in New York] “did attend required hours and clinical and are properly licensed.” As a result, those individuals are now being asked to have a qualified nursing program submit verification.

The Big Question: Have They Been Successful at Finding Any Nurses With False Credentials?

So far, the Washington State Nursing Care Quality Assurance Commission rescinded the nursing licenses of 17 people and denied license applications for four others. The Delaware Board of Nursing annulled 26 licenses. As well as the Georgia Board of Nursing asked 22 nurses to surrender their licenses voluntarily. Licensing officials in Texas filed administrative charges against 23 nurses, but they can continue working while their disciplinary cases are pending.

A spokesperson for the U.S. Veterans Administration (VA) said that it removed 89 nurses “from patient care” nationwide in 2022 immediately after being notified by federal officials of the potential problem. Still, the agency has not found any instances of harm done to patients.

In Florida, there are literally thousands of nurses who are being notified that they are under investigation related to this situation. Many have been practicing nursing for five years or more.

To learn even more, read my prior blog here.

In addition, you can stay on top of the Operation Nightingale investigation by checking for updates on our Articles and Documents section on our website.

What You Should Do If You Receive a Notice of Investigation or a Call from an Investigator.

If you receive any contact from any investigator, here is what you should do:

1. DO NOT TALK TO THE INVESTIGATOR OR MAKE ANY STATEMENT. Tell the investigator you must speak with your attorney first.

2. Contact your professional liability insurance company to see if you have coverage for this matter.

3. Contact an experienced health law attorney, immediately. DON’T WAIT! The attorney will be able to lead you through this process.

4. DO NOT TALK TO THE INVESTIGATOR OR MAKE ANY STATEMENT. Your attorney can do all the communicating from this point on.

Contact Health Law Attorneys Experienced in Investigations Against Nurses and Nursing Students.

The attorneys of The Health Law Firm provide legal representation to nurses, nursing students, Advanced Practice Registered Nurses (APRNs), CRNA’s and other health professionals in Department of Health (DOH) investigations, license defense hearings, Department of Justice (DOJ) investigations, board of nursing investigations, formal and informal administrative hearings, emergency suspension orders, emergency restriction orders, appeals and other types of investigations of health professionals and providers.

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:

Hill, Michael. “States move to crack down on nurses with bogus diplomas.” Associated Press. (March 1, 2023). Web.

Whitford, Emma. “How Thousands Of Nurses Got Licensed With Fake Degrees.” Forbes. (February 21, 2023). Web.

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

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

On June 15, 2023, a United States District Judge sentenced a Florida man to 15 years in prison for his role in an HIV prescription drug fraud scheme that amassed more than $230 million in two years. The defendant was initially indicted on June 17, 2022, and charged with six counts of conspiracy and money laundering. Unlike most of the fraud convictions we report on, this one was directed against the U.S. Food and Drug Administration (FDA) and involved adulterating and misbranding drugs. The defendant pled guilty to only two counts: conspiracy to defraud the United States and conspiracy to commit money laundering. Click here to view the press release from the U.S. Attorney’s Office, Southern District of Florida, to learn more about the arrest.

The Charges: Adulterated and Misbranded HIV Medications.

Prescription drug diversion is when prescription drugs are removed from regulated distribution channels and reintroduced into the wholesale market or otherwise illegally distributed. These drugs can be acquired through theft, fraud, or patients who were prescribed the medication and intentionally did not consume them.

In this case, U.S. vs. Lazaro Hernandez, the defendant would obtain prescribed drugs illegally, repackage them, falsify the documentation, and resell them to coconspirators through conspiracy wholesalers. To successfully divert the prescription medications, they got wholesale drug distributor licenses for LLC’s in Florida, New Jersey, Connecticut, and New York. These conspiracy wholesalers would purchase the diverted, adulterated, and misbranded drugs and documentation and sell them to pharmacies.

Adulteration occurs when any substance is added to or substituted, in part or in whole, or mixed with an approved drug. Misbranding of a drug occurs when someone places a label on it that is false or misleading in any way, as defined in Title 21 U.S. Code sections 351(d) and 352 (a)(1). In this case, the pharmacies billed health care benefit programs and dispensed adulterated and misbranded drugs to patients. The pharmacies paid $232,800,000 for the diverted drugs between April 2019 and at least October 2021.

The six counts that the defendant was initially charged with include conspiracy to introduce adulterated and misbranded drugs and to defraud the United States, conspiracy to traffic pre-retail medical products with false documentation, conspiracy to commit money laundering, and three counts of money laundering. The false documentation and money laundering charges were later dropped in the plea deal.

The Sentencing.

The government recommended a sentence of 188 to 235 months, which aligns with the defendant’s criminal history and total offense level (calculated in accordance with federal statutes and regulations), while the defense argued for a lesser amount of time due to the allegedly “secondary” role the defendant played in the fraud. The judge sentenced the defendant to 180 months. Also included in the sentence was a forfeiture of all proceeds from the scam and restitution in an amount that has yet to be determined.

This lower-than-recommended prison sentence came after the defendant spoke about his gambling addiction, which allegedly led him to participate in the fraud. Also, two of his 47 character references addressed the court in person. The judge was swayed to give him a lower sentence as a result. View the indictment in the case in full here.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to pharmacists, pharmacy facilities, physicians, nurse practitioners, CRNAs, dentists, psychologists, mental health professionals, nurses, and other health providers in Department of Health (DOH) investigations and hearings, Drug Enforcement Administration (DEA) investigations, audits and hearings, Food and Drug Administration (FDA) investigations and hearings, FBI investigations, Medicare/Medicaid investigations, audits and hearings, and many other actions involving defense 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.

Sources:

Minsky, David. “Fla. Man Sentenced To 15 Years In Prison Over HIV Drug Fraud.” Law360. (June 16, 2023). Web.

Becker, Zoey. “In fraud case targeting HIV meds, Florida man gets 15 years in prison.” FiercePharma. (June 21, 2023). Web.

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

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

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

On May 18, 2023, the United States Court of Appeals for the Sixth Circuit affirmed a U.S. district court’s decision to deny U.S. Nursing Corporation a new trial. The appellate court stated that the opposing counsel’s closing argument and the erroneous preclusion of evidence had no substantial effect on the trial’s outcome; thus there was no reversible error.

The First Lawsuit.

The original lawsuit filed in state court concerned a patient suing Appalachian Regional Healthcare, Inc., for exacerbating his spinal injury. He claimed that a nurse transported him from a car into the emergency room without first stabilizing and immobilizing him, which caused further damage. When the incident occurred, the nurses on staff were two employees of Appalachian Regional and one supplied by U.S. Nursing Corporation to the hospital.

The court granted a motion that dismissed the Appalachian Regional nurses as defendants because no evidence in the record alleged that they moved the patient. As the trial neared, the court granted another motion prohibiting the parties from introducing evidence that the Appalachian Regional nurses moved the patient from the truck into the emergency room.

This earlier state court lawsuit concluded with Appalachian Regional Healthcare paying $2 million in settlement and incurring $823,522.71 in legal fees.

It is important to note that when U.S. Nursing supplied its nurse to Appalachian Regional, they entered into an agreement that stated U.S. Nursing would indemnify and defend Appalachian Regional for the negligence of any of its employees assigned to Appalachian Regional. The settlement was reached, Appalachian Regional Healthcare demanded that U.S. Nursing indemnify it, but the staffing company refused to do so. In response, Appalachian Regional Healthcare, Inc. sued U.S. Nursing for the $2,823,522.71 state court settlement it paid.

The First Appeal.

In its first appeal, U.S. Nursing argued that the opposing counsel made an inappropriate remark in their closing statement when they stated no evidence showed the Appalachian Regional Healthcare nurses moving the patient and that U.S. Nursing had not argued that such evidence existed. U.S. Nursing claimed this statement was inappropriate because it was prohibited from admitting evidence that showed Appalachian Regional Healthcare nurses having moved the patient. The appellate court decided that U.S. Nursing did not have a full and fair opportunity to litigate the issue, so the appellate court remanded to the district court to determine if the error required a new trial.

The nurse staffing company argued that it was incorrectly prohibited from introducing evidence regarding the other nurses on duty and the possibility that they could have been the ones to move the patient. U.S. Nursing also argued that the opposing counsel exploited the court’s error in their closing statements, though the district court never addressed this claim. However, the appellate court asserted that the evidence excluded would not have caused a different outcome at trial, so no new trial was granted.

The Second Appeal.

In its second appeal, U.S. Nursing argued that the district court abused its discretion when it determined the evidentiary error did not affect the trial. The Sixth Circuit Court of Appeals found that the excluded evidence did very little to support U.S. Nursing’s argument, and excluding this evidence did not affect U.S. Nursing’s substantial rights. However, the court stated that the opposing counsel misled the jury with their statements. The remarks did not constitute an error significant enough to warrant a new trial since Appalachian Regional Healthcare, Inc., was highly likely to prevail, despite counsel’s comments.

Click here to read the order in full.

Contact Health Law Attorneys Experienced in Representing Nurses and Other Healthcare Professionals.

The Health Law Firm’s attorneys routinely represent nurses, pharmacists, pharmacy technicians, dentists, dental assistants, physicians, physician assistants, mental health counselors, and other health providers. We also provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in the Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings.

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.

Source:

Muyskens, Carolyn. “Full 6th Circ. Won’t Hear Staffing Co.’s Indemnification Row.” Law360. (22 June 2023). https://www.law360.com/health/articles/1691718?nl_pk=0cbd4c0b-c6c8-416a-9e67-b4affa63b102&utm_source=newsletter&utm_medium=email&utm_campaign=health&utm_content=2023-06-23&nlsidx=0&nlaidx=8

Hartley Brooks is a law clerk at The Health Law Firm. She is preparing to attend law school.

“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.

By The Health Law Firm|2024-03-14T09:59:24-04:00July 31, 2023|Categories: Nursing Law Blog|Tags: attorney for nurses, board of nursing hearing attorney, board of nursing hearing defense attorney, board of nursing hearing lawyer, Board of nursing legal defense representation, board of nursing legal representation, board of nursing license defense lawyer, certification hearing defense attorney, certified registered nurse anesthetist CRNA defense lawyer, certified registered nurse anesthetist CRNA hearing attorney, certified registered nurse anesthetist CRNA investigation and hearing lawyer, defense attorney for board of nursing hearing, defense attorney for board of nursing investigation, defense lawyer for department of health investigation, defense lawyer for nursing investigation, health care investigation defense attorney, health professional defense lawyer, healthcare professional license defense attorney, lawyer to defend nurse against charges, legal representation for certified registered nurse anesthetist CRNA, legal representation for DOH and DORA complaint, legal representation for Florida DOH and DORA investigations, legal representation for healthcare investigations, legal representation for healthcare professionals, legal representation for nurse, legal representation for nurse practitioner, license revocation legal representation, nurse defense attorney, nurse defense counsel, nurse practitioner investigation and hearing defense lawyer, nurse practitioner NP defense lawyer, nurse practitioner NP hearing attorney, nursing board defense attorney, nursing board defense legal representation, professional licensure defense attorney, representation for nurse licensure matters, representation for nurses, reviews of The Health Law Firm, The Health Law Firm reviews|Comments Off

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

On June 21, 2023, the Iowa Court of Appeals overturned the verdict in a nursing home negligence case that awarded $6 million in compensation and damages to the plaintiff. The case was reversed and remanded for a new trial because the trial court judge admitted inadmissible hearsay testimony into evidence. The testimony being appealed was that of staff members who claimed to have heard “reports” and “rumors” of alleged abuse by a nurse on staff toward not only the resident in question but other residents.

Essentially, hearsay is when someone repeats something they heard from another person and presents it as if they know it to be true. Hearsay is often equated to rumor. Hearsay is not admissible due to the nature of speculation required in making such a statement, the fact that such statements are inherently unreliable and that the actual witness is not in court to answer questions about it. Thus there is no way for a party or the judge to test the credibility of the actual witness or determine facts that may have influenced the observation and statement.

Hearsay is considered unreliable because the person who knows what happened (who saw what happened or heard what happened) is not to be questioned about it. Therefore, there is no way to know what really happened for sure.

Details of the Case.

In this case, the estate of the former nursing home resident, who succumbed to her injuries after a fall in the nursing home, claimed adult abuse and that negligence caused a wrongful death. In its defense, the nursing home focused on the alleged abuse by a nurse on the staff. The statements that were challenged in the appeal included testimony made by six nursing home staff members that residents, other unnamed employees, and an Iowa Department of Inspections and Appeals surveyor told them that the nurse in question had been physically rough with and swore at residents.

The employees testifying did not actually witness any such incidents. They were only testifying about what someone else said (“hearsay”).

The trial court admitted these statements, allegedly not for their truth, but in an attempt to show that abuse had been reported and there had not been any follow-up investigation. The appellate court stated that this was not a valid reason to admit inadmissible hearsay into evidence because the estate must prove that the conduct existed to prevent the jury from engaging in rampant speculation based on unreliable hearsay evidence.

People in today’s society, yes, even judges, often forget this basic principle of law. With all of the completely fabricated lies being put out as “news” on some news channels, Internet rumors running rampant, and politicians making egregiously false statements, it’s often hard to remember how to distinguish a fact from an unreliable rumor or hearsay.

This is one of the problems with hearsay. It is often just gossip and rumor, which change from person to person. Especially egregious conduct, criminal activity, and salacious acts become increasingly exaggerated with each retelling. The founding fathers in English and American law realized the inherently unreliable nature of such “evidence.”

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents health professionals and health facilities in civil and administrative litigation. We also represent physicians, nurses, and other health providers in investigations, regulatory matters, licensing issues, board hearings, inspections, and audits involving the DEA, Department of Health (DOH), and other law enforcement agencies. Its attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys. We represent medical students, interns, resident physicians, and fellows in disputes with their graduate medical education (GME) programs. We represent clinical professors and instructors in contract disputes, employment disputes, clinical privileges matters, and other disputes with their employers. We often act as the physician’s personal counsel in medical malpractice litigation.

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.

Source:

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

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

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Psychiatric Practice, Owner Agree to Pay $310,000 in FCA Settlement for Employing Doctor on OIG Exclusion List

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

On February 23, 2022, a psychiatric practice and its owner agreed to pay $310,874 to resolve allegations they improperly hired and employed a physician who was excluded from federal healthcare programs. The physician who was hired was on the OIG’s exclusion list, the “List of Excluded Individuals and Entities” (LEIE). As a result, the government took the position that claims for services the physician provided filed against government programs were illegal pursuant to the false Claims Act (FCA). Details were disclosed in a Press Release by the U.S. Attorney for the District of Connecticut.

Geriatric & Adult Psychiatry, LLC (GAP), along with the owner, entered into a civil settlement agreement to resolve their liability under the federal and state False Claims Acts, the U.S. Department of Justice (DOJ) said in a press release.

Past Conviction Overlooked.

In 2006, the physician had been convicted in the Southern District of Florida of conspiracy to commit healthcare fraud. Because of his conviction, the Office of the Inspector General (OIG) excluded him from all federal healthcare programs. Such an exclusion includes Medicare, Medicaid, Tricare, Veterans Administration (V.A.), and Indian Health Service (I.H.S.) programs.

When the OIG excludes an individual or entity from federal health care programs, no payments may be made for items or services furnished by that excluded individual. Additionally, the law prohibits any person or organization that receives such funds from employing or contracting with a person on the LEIE, in any way. To avoid potential liability, it advised that health care providers check the List of Excluded Individuals/Entities (LEIE) on the OIG website: http://oig.hhs.gov/exclusions.

In addition, the OIG has issued a Special Advisory Bulletin to providers who might employ or contract with an excluded individual or entity to provide guidance. To review this OIG Bulletin, click here.

For more helpful information, click here.

Despite this, to medical group hired the former physician as the clinical director in 2016 where he served in that position until 2021. During that time, both the practice and its owner billed and sought reimbursements from Medicare, Medicaid, TRICARE, and the Railroad Retirement Medicare Program. Additionally, GAP’s reimbursements were used to pay the physician’s salary and benefits.

Payment Prohibition & Civil Monetary Penalties (CMPs).

Health care providers receiving funds from federal health care programs must check to see if potential employees and contractors are excluded by searching the LEIE to ensure that person is not listed. Providers have mistakenly assumed that exclusion does not apply to an individual or entity that provides services that extend beyond direct patient care; this is wrong. Payment prohibition extends to anyone who chooses to employ or contract with an excluded individual or entity in any capacity. Providers who violate this prohibition are required to pay back all federal health care program funds inappropriately received and may also be subject to civil monetary penalties (CMPs) and action under the False Claims Act (FCA).

Furthermore, payment of an excluded individual’s salary, benefits, or expenses, directly linked to federal health care program funds is expressly prohibited. Click here to read my prior blog and learn more about this.

Little Known Fact: You Must Actively Apply to Get Taken Off the LEIE.

A little-known fact, often overlooked, is that a person or entity on the LEIE must actually apply to be removed from it, no matter how short the period of exclusion. Thus if a person is excluded and placed on the LEIE for only two years, they must apply to the OIG after that period of time, completing its detailed, notarized application, and be removed from the list. Removal is not automatic.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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:

Yankowski, Peter. “Officials: Hamden psychiatric practice to pay $310,000 settlement over employee who lost medical license.” Stamford Advocate. (February 23, 2022). Web.

Health Law Weekly. “Psychiatric Practice, Owner Pay $310K for Employing “Excluded” Individual.”American Health Law Association (AHLA). (February 25, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in 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.

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Florida Governor Signs New Controlled Substance Telemedicine Prescribing Law

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

On April 6, 2022, Florida’s Governor signed into law legislation to remove the state’s prior restrictions on telemedicine prescribing of controlled substances. The new law in Florida allows healthcare providers to prescribe many controlled substances via telemedicine.

Florida Senate Bill (SB) 312, signed into law, eliminates the prior ban that had existed prohibiting the prescription of Schedule II controlled drugs (with certain exceptions). Schedule II drugs can now be prescribed in Florida via telemedicine if the clinical situation meets one of four exceptions.

A Big Win For Patients Whose Treatment Requires Controlled Substances.

The prescribing of controlled substances is a heavily regulated medical service. Healthcare providers must usually meet specific criteria to prescribe controlled substances via telemedicine, including conducting an in-person examination of the patient before moving to telehealth examinations.

The new law will allow Florida clinicians to prescribe refills in connection with their ongoing care management more efficiently. For example, the clinician can periodically conduct patient examinations via telemedicine instead of requiring in-person exams.

SB312 was seen to be a big win for Florida patients with medical conditions requiring controlled substances as part of the treatment regimen. This includes, for example, endocrinology or substance use disorder (both of which use Schedule III medications now permitted under the new law), allowing these patients to obtain better access to more care. This is especially so for patients whose medical conditions may have limited their travel or mobility.

The allowance is limited for Schedule II drugs. It is now allowed but only for the treatment of psychiatric disorders, inpatient treatment at a licensed hospital, hospice services, and treatment for residents in a nursing home.

The Florida Law Doesn’t Supersede Federal Law.

It is important to remember that Florida law doesn’t supersede federal law. Therefore, providers should be certain that they meet the requirements of both federal and state law.

In this context, the telemedicine prescribing of controlled substances is governed by the federal Ryan Haight Act, as well. This means prescribers still need to meet one of seven conditions that would allow them to prescribe a controlled substance via telemedicine without first having an in-person exam. Florida law must be read in harmony with the federal Ryan Haight Act requirements and a prescriber must comply with both.

Learn more about the Ryan Haight Act and the federal requirements.

To view SB312 in full, 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:

Wicklund, Erik. “NEW FLORIDA LAW OKS PRESCRIBING MOST CONTROLLED SUBSTANCES BY TELEMEDICINE.” Healthleaders Media. (April 11, 2022).Web.

“New Florida Law Allows Telemedicine Prescribing of Controlled Substances.” National Law Review.” (April 7, 2022). Web.

Lacktman, Nathaniel. “New Florida Law Allows Telemedicine Prescribing of Controlled Substances.” Foley & Lardner. (April 7, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in 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.

By The Health Law Firm|2024-03-14T09:59:25-04:00July 20, 2023|Categories: Nursing Law Blog|Tags: defense in opioid overprescribing, Department of Health (DOH) complaint defense lawyer, Department of Regulatory Agencies (DORA) defense attorney, Drug Enforcement Administration (DEA) defense lawyer, Drug Enforcement Administration (DEA) hearing attorney, Drug Enforcement Administration (DEA) Order to Show Cause (OTSC) attorney, Florida health law attorney, Florida telemedicine defense lawyer, health care compliance defense lawyer, health care defense attorney, health law defense attorney, informal administrative hearing attorney, legal defense in medical board complaint, legal defense representation in OIG investigations, legal representation for Board of Medicine investigation, legal representation for board of nursing complaint investigation, legal representation for board of pharmacy complaint investigation, legal representation for defense of health care fraud, legal representation for defense of Medicare and Medicaid fraud charges, Medicaid and Medicare fraud defense lawyer attorney, medical board attorney, medical license defense counsel, medical licensure attorney, Medicare and Medicaid fraud defense attorney, Medicare Medicaid audit defense lawyer, mental health counselor and social worker defense attorney, nurse attorney, nursing complaint defense attorney, OIG investigation defense attorney, pharmacist defense lawyer, pharmacy defense lawyer, professional licensure defense attorney, protecting your professional license, representation for applying for a medical license, representation for Board of Clinical Social Work, representation for pharmacist, representation for pharmacy, Representation for telehealth, representation for telehealth investigations, representation for telemedicine, representation for telemedicine investigations, representation of health care professionals, reviews of The Health Law Firm, reviews of The Health Law Firm attorneys, telehealth defense lawyer, telehealth lawyer, telehealth provider investigation defense lawyer attorney, telemedicine attorney, telemedicine defense attorney, telemedicine representation, the health law firm, The Health Law Firm attorney reviews|Comments Off

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Florida Attorney Says AHCA Must Put Medicaid Final Orders Online

Iowa Appellate Court Reverses $6 Million Nursing Home Negligence Decision Because of Hearsay Testimony

Medications and Other Substances that Mimic Prohibited Drugs on Urinalysis Drug Tests: Marijuana and THC Imposter Substances (Part 3 of Series)

Nurses: You Must Insure Your Legal Protection

States Take Action to Stop Nurses From Certain Schools From Caring For Patients

Florida Man Sentenced to 15 Years in Prison for HIV Drug Fraud Scheme; $230 Million Lost to Fraud

United States Court of Appeals Denies U.S. Nursing Corporations Indemnification Challenge Against Nurse Staffing Agency

Iowa Appellate Court Reverses $6 Million Nursing Home Negligence Decision Because of Hearsay Testimony