Good News and Bad News for ECFMG & USMLE Applicants: Recent Changes for the USMLE Step Exams

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law

These are some recently announced changes that could significantly impact anyone seeking to take the USMLE Step exams. This could be construed as good news by many and bad news by many others. Regardless, here it is.

Step 1 Exam Changing to Pass/Fail Grade and Score Reporting.

The USMLE announced recently that it would change the scoring and reporting for Step 1 exam scores. Step 1 score reporting will transition to pass/fail only for administrations on or after January 26, 2022. All of the worry about passing with a low score and how that might affect residency choices will be eliminated by this change.

Number of Attempts for Step 1 or Step 2 Exam Limited to Four (4) Lifetime Attempts.

Remember when you had no limit on the number of times you could take a USMLE Step exam? Remember when it was reduced to a maximum of six (6) attempts, not that long ago? Guess what? Not anymore!

Effective July 1, 2021, the number of attempts you can have to pass any USMLE Step exam will change. The change latest change reduces the total number of allowable attempts from six (6) attempts to four (4) attempts for any single Step exam, including any incomplete attempts. This is in effect for all applications submitted on or after July 1, 2021. So now, examinees who have already attempted any USMLE Step exam four (4) or more times and have not passed, will no longer be eligible to apply for the USMLE exams.

Is it possible to obtain an exemption? Depending on your circumstances, we can petition for one, but that does not mean it will be granted.

Step 2-CS Exam Completely Eliminated!!!!

Remember the Test of English as a Foreign Language (TOEFL), also known as “der Teufel” (1), that used to be required for Foreign Medical Graduates (now known as “International Medical Graduates” or “IMGs”)? No? Well, I don’t either.

Remember when the Step 2-CS was easily considered the most difficult exam for a foreign medical graduate to pass. Well, I do remember this!

The Step 2-CS (for “clinical skills”) exam was supposed to address any foreign language problems in practicing in the United States. This became, in my opinion, one of the biggest obstacles to for IMGs becoming licensed in the U.S. It was originally discontinued for approximately a year and a half because of problems caused by the COVID-19 epidemic.

Guess what? It doesn’t exist anymore. Accordingly, the Federation of State Medical Boards (FSMB) and the National Board of Medical Examiners (NBME), co-sponsors of the United States Medical Licensing Examination (USMLE) by the USMLE Secretariat, announced on January 26, 2021, that it was discontinuing the Step 2-CS exam.

I guess the powers that be learned when they eliminated the Step 2-CS during the COVID-19 pandemic in 2020, that it was not so necessary after all. Now it is gone.

“Will it ever return, no it will never return; its fate is still unknown.”(1) There is no expectation that it will ever come back. What do you do now with all of those low score “fails” and lows test score “passes” you previously received on the Step 1 exam and the Step 2-CS? The answer is lost in chaos. We will just have to wait and see.

Major Chinese Medical Schools Disqualified in 2019.

See my next blog on what happened to eight (8) major Chinese medical schools so that their graduates cannot take the Step exams or become licensed in the U.S. anymore. Click here to read about the Chines medical schools.

Endnotes:

(1) German for “the Devil”

(2) Paraphrase of verse from “MTA” [standing for the Boston Metropolitan Transit Authority or subway train] written by Jacqueline Steiner and Bess Lomax Hawes, recorded and made famous by The Kingston Trio in 1959.

(3) Answer to the final question asked at the end of every episode of the Japanese Anime series “Dorohedoro” or “Doro and Doro” (2020) (available on Netflix), about a man named “Caiman” who wakes up one morning with the head of a lizard and amnesia and searches for the reason.

Contact a Health Care Attorney Experienced in the Representation of Medical Students, Interns, Residents and Applicants, Fellows and Those Involved in Graduate Medical Education, and those being challenged by the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG)

The Health Law Firm and its attorneys represent interns, residents, fellows, and medical school students in disputes with their medical schools, supervisors, residency programs, and in dismissal hearings. We have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters. We routinely help those who have disputes with the National Board fo Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), including on hearings and appeals concerning “Irregular Behavior,” “unprofessionalism,” and “Irregular Conduct.”

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:

“USMLE policy updates following Step 2 CS discontinuation.” United States Medical Licensing Examination Announcements. (July 21, 2021). Web.

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

 

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

Civil and Criminal Enforcement of HIPAA Privacy and Security Regs on the Rise

George Indest Headshot

Attorney George F. Indest III, The Health Law Firm

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

The Office of Civil Rights (OCR), a division within the U.S. Department of Health and Human Services (HHS), is the federal organization responsible for investigating complaints and enforcing the Privacy and Security Regulations implementing the Health Insurance Portability and Accountability Act, commonly referred to as “HIPAA.”

As the COVID-19 pandemic seems to be leveling off and more employees are going back to the office, and into the field, HIPAA complaint investigations will definitely pick up. Furthermore, criminal prosecutions for violations of HIPAA have recently been on the rise as well.

OCR’s Investigations and Enforcement Actions.

OCR enforces the HIPAA Privacy and Security Regulations in several ways:

The first method it has is the receiving and investigating of HIPAA violation complaints. These can easily be filed online by going to https://www.hhs.gov/hipaa/filing-a-complaint/.

If you receive a notice from the OCR that it is investigating a HIPAA complaint against you, it will request a large number of various documents relating to the matter. It is crucial that you retain the services of an experienced health lawyer to assist you in responding. Often, it will not be necessary to provide all of the documents requested by OCR, if your attorney determines that certain legal grounds exist for avoiding this. Regardless, you should seek legal counsel, anyway, since both criminal and civil sanctions may result.

OCR Also Conducts Compliance Audits.

OCR conducts compliance reviews to determine if covered entities are in compliance. Covered entities include, for example, physicians, medical groups, nurse practitioners (in most cases), psychologists, mental health counselors (in most cases), pharmacists, health clinics (in most cases), assisted living facilities (ALFs), home health agencies (HHAs), hospitals, and many others.

OCR reviews the information that it gathers through its investigation or audit. In some cases, it may determine that the covered entity did not violate the Privacy Regulations or the Security Regulations. However, in the case of the covered entity’s violation, OCR may do any of the following:

Dismissing the matter or taking no further action.

Obtaining the Covered Entity’s agreement for voluntary compliance going forward.

Obtaining corrective action through a corrective action plan (CAP).

Negotiating a resolution agreement (RA).

Assessment of civil penalties (monetary fines).

Referral to the Department of Justice (DOJ) for further investigation and criminal prosecution.

Civil Violations.

In cases of noncompliance where the covered entity does not satisfactorily resolve the matter, OCR may decide to impose civil money penalties (CMPs) on the covered entity. It can then take further administrative or civil litigation action to enforce these if they are not paid.

Civil monetary penalties for HIPAA violations are determined based on a tiered civil penalty structure. The HHS secretary has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation. HHS is prohibited from imposing civil monetary penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended at HHS’s discretion). So it is imperative to retain an attorney and get on top of the situation fast.

The range of penalties for civil violations.

HIPAA violation: Unknowing
Penalty range: $100 – $50,000 per violation, with an annual maximum of $25,000 for repeat violations

HIPAA violation: Reasonable Cause
Penalty range: $1,000 – $50,000 per violation, with an annual maximum of $100,000 for repeat violations

HIPAA violation: Willful neglect but corrected (violation is corrected within the required time period)
Penalty range: $10,000 – $50,000 per violation, with an annual maximum of $250,000 for repeat violations

HIPAA violation: Willful neglect, not promptly corrected (violation is not corrected within the required time period)
Penalty range: $50,000 per violation, with an annual maximum of $1.5 million

Criminal penalties for violations.

In June 2005, DOJ clarified who can be held criminally liable under HIPAA. Its clarification included officers, employees, and other principles of business entities (corporations and companies) that are covered entities, including co-conspirators, aiders, and abettors of the acts.

Criminal violations of HIPAA are investigated and prosecuted by DOJ. As with the civil penalties, there are different criminal penalties based on the level of severity of the criminal violation.

Covered entities and specified other individuals who knowingly obtain or disclose individually identifiable health information, in violation of the Administrative Simplification Regulations to the HIPAA Regulations, face a fine of up to $50,000, as well as imprisonment for up to one (1) year.

Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five (5) years in prison.

Finally, offenses committed with a profit motive, in other words, with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm permit fines of $250,000 and imprisonment up to ten (10) years.

What is a “Covered Entity?”

One thing to remember is that HIPAA and its enforcing regulations only apply to “covered entities” with certain minor exceptions. The following are examples of “covered entities”:

Health plans (e.g., health insurers, HMOs, PPOs)

Health care clearinghouses

Health care providers who transmit claims in electronic form (this will cover almost all health facilities and health professionals)

Medicare prescription drug card sponsors

Individuals such as directors, employees, or officers of a covered entity (where the covered entity is not an individual) may criminally liable under HIPAA per the “corporate criminal liability” theory.

 

Criminal Penalties for HIPAA Violations.

Yes, there are criminal penalties, including prison for up to ten (10) years, possible for HIPAA violations.

To read an earlier blog I wrote on criminal penalties for HIPAA violations, please click here.

What is the Definition of “Knowingly?”

The DOJ interprets the required element of “knowingly” in the criminal liability section of HIPAA as requiring only knowledge of the actions that constitute an offense. Specific knowledge that an action is a violation of HIPAA is not required.

Can a HIPAA Violation Lead to Exclusion from the Medicare Program?

HHS has the authority to exclude from participation in Medicare any covered entity that was not compliant with certain HIPAA Regulations under certain circumstances. Call your healthcare lawyer for details on this.

For information on the effects of exclusion from any government-sponsored healthcare program on a doctor, nurse, dentist, or any other health provider, visit our website’s Health Law Articles and Documents page to view the OIG’s Special Advisory Bulletin.

 

The Administrative Simplification Act Simplifies it All.

The Administrative Simplification Act sought to clarify and simplify parts of HIPAA and increase specific penalties for violations. Title 42, United States Code, Chapter 7, Subchapter XI, Part C (Administrative Simplification Act).

The Administrative Simplification Regulations authorize a fine of up to $50,000, as well as imprisonment up to one year. Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five years in prison. Finally, offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm permits fines of $250,000 and imprisonment for up to 10 years.

Misuse and Disclosure of “Unique Health Identifiers.”

The wrongful use of a unique health identifier can be charged as a violation of 42 U.S.C. § 1320d–6(a)(1) and (b)(1)), the penalty provision of which is set forth in 42 U.S.C. § 1320d–6(b)(1). “Unique health identifier” includes a patient’s name, address, social security number, insurance member ID number, description of health history, and description of the patient’s symptoms.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free: (888) 331-6620.

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 Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2021 The Health Law Firm. All rights reserved.

Multiple Settlements with HHS for HIPAA Security Rule Violations & Data Breaches

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

In September 2020, the Department of Health and Human Services (HHS) announced three settlements to resolve alleged violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules. The settlements, totaling $10.6 million, stem from data breaches in which hackers were able to access and obtain individuals’ protected health information (PHI) from U.S. health providers. Combined, the three hacking incidents compromised the health information of more than 16 million patients.

Summary of the HIPAA Security Rule Settlements.

On September 21, 2020, the Office of Civil Rights, or OCR, the division of HHS which receives and investigates HIPAA complaints, announced a settlement with an orthopedic clinic in Georgia. The clinic agreed to pay $1.5 million after a 2016 hacking incident that compromised over 200,000 patient records. Part of the settlement included a Corrective Action Plan, or CAP, which the clinic agreed to adopt, to help prevent future breaches of privacy. Click here to view the resolution agreement and Corrective Action Plan (CAP).

On September 24, 2020, the OCR publicized a settlement with an information technology (IT) and health information management company. The business agreed to pay $2.3 million to settle claims of systemic security rule violations relating to a 2014 hacking incident impacting the personal health information (PHI) of more than 6 million individuals. Click here to read the settlement agreement.

Days later, the OCR released information about a $6.85 million settlement with Premera Blue Cross, the largest health plan in the Pacific Northwest. The settlement, the second largest to date, related to a 2015 cyber-attack which exposed the health information of more than 10 million individuals. To read the resolution agreement in full, click here.

In regard to these settlements, the OCR alleged that the following security rule violations had occurred:

1. Failure to conduct an adequate and thorough risk analysis;

2. Failure to implement sufficient mechanisms to record and examine system activities;

3. Failure to enter into business associate agreements with vendors with access to electronic protected health information;

4. Failure to implement reasonable security measures to reduce risks and vulnerabilities;

5. Failure to respond to and document a known security incident;

6. Failure to implement technical policies and procedures regarding access; and

7. Failure to implement procedures to regularly review system activity logs and reports.

Readers could use the above as a compliance checklist to make sure their own systems of records are being properly protected.

Consequences of HIPAA Rule Noncompliance.

The HIPAA Security Rule establishes a set of national standards for confidentiality, integrity, and availability of e-PHI. HHS is responsible for administering and enforcing these standards, along with enforcement of the HIPAA Privacy Rule. Therefore, the agency may conduct complaint investigations and compliance reviews. To learn more details about the HIPAA Security Rule, click here.

HHS looks for systems failures, prior breaches, missing risk analyses, or absence of or inadequate HIPAA policies. Without question, any compliance violations will result in an enforcement action. And as these three settlements have demonstrated, enforcement can be costly.

Don’t Wait Until It’s Too Late, Protect Yourself from HIPAA Security Rule Compliance Violations.

Businesses and organizations need to acknowledge the need to act and create a HIPAA security rule compliance plan. Locating existing security policies and the last completed risk analysis is an essential step in compliance. If it’s been over a year, perform or update risk analysis to identify risks or vulnerabilities on all systems that contain any e-PHI. Security rule compliance requires regular attention and detailed records. Take steps now to help protect e-PHI from data breaches, and avoid millions of dollars in settlements or fines.


Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions to investigate and defend alleged HIPAA complaints and violations and prepare Corrective Action Plans (CAPs). Our attorneys regularly defend OCR HIPAA audits, defend in HIPAA complaint investigations, assist in preparing a HIPAA Risk Analyses, defend in federal administrative actions and administrative hearing cases, and defend in civil or administrative litigation of HIPAA/breach of medical confidentiality law suits.

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Kraus, Anna and Carrier, Tara. “HHS Announces Multiple HIPAA Settlements Related to Data Breaches and the Right of Access Initiative.” Lexology. (October 6, 2020). Web.

Castricone, Dena. “The Crushing Cost Of HIPAA Security Rule Noncompliance.” Law360. (October 1, 2020). Web.

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

The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law

Colorado Board of Pharmacy Must Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide legal representation to pharmacists, pharmacies, physicians and other health providers. We defend in state and federal administrative hearings, investigations, and litigation. We represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

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

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

10 Biggest Mistakes Dentists Make That Cause DOH Complaints

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

In representing dentists in complaints against their licenses, we see similar cases over and over again. The dentists could have avoided many Department of Health (DOH) complaints that may wind up before the Board of Dentistry.

These are the ten biggest mistakes we see dentists make, leading to DOH complaints being filed and investigations being opened against them.

1.  Requiring patients to pay an outstanding dental bill before releasing a copy of their dental records. This is prohibited by law. However, the patient can be charged for the copy of the record, up to $1.00 per page for the first 25 pages, ($.25 per page after that), and actual costs of reproduction for other forms of dental records (X-rays, CD’s photographs).

2.  Not having the original patient x-rays or a good digitized copy. Believe it or not, many dentists we have represented either gave their x-rays to the patient or sent them to a subsequent treating dentist. Always release copies (for which you may charge). Always keep the originals. (Not having them when needed). With the expanding use of digital x-rays stored in an electronic dental record, this is not so problematic as it was in the past.

3.  Accepting a new patient who has had more than one other primary dentist within the prior five years (when the patient hasn’t relocated to a new geographical area). Unhappy, disgruntled, unrealistic patients will change dentists often. Identify these patients early and refuse to accept them as your patients or terminate them as patients as soon as you identify them. Closely related to this is accepting or failing to terminate the “disgruntled” patient. If a patient is a chronic complainer or threatens to sue or file a complaint, this is a patient who will, most likely, never be satisfied. Terminate this patient immediately.

4.  Failing to fully inform the patient of possible less-than-desirable outcomes (documenting this in writing, preferably signed by the patient). This includes but is not limited to the fact that there may be subsequent pain or infection, that the bite may be less than perfect and may have to be adjusted, that a bridge or other fixture may not fit correctly and may need to be adjusted, etc.

5.  Failing to have and use appropriate consent forms including, but not limited to:

a.  Refusal of a treatment consent form

b.  Consent for less than optimal dental treatment (to use when a patient refuses to follow dentist’s recommended treatment plan). This is also called “Refusal of Recommended Treatment.”

c.  Root Canal consent form
d.  Tooth Extraction
e.  Endodontic procedures
f.  Dentures and bridges

6.  Failing to refund dental fees when complaining patients demand it. We do not routinely recommend that you refund dental fees based solely on a patient’s demand that you do so. In many cases, the patient will have benefited from the treatment, procedure, or appliance, and should pay for it. However, in many instances, this must be a business decision based on risk management principles. It is always a good idea to weigh the amount in attorney’s fees, time, and aggravation, mental anguish, or increase in insurance premiums that will result if you fail to refund demanded fees. Base your decision on a calculation of how likely it is that a complaint will result.

7.  Failing to have good, legible, comprehensive treatment records on the patient. A documented, comprehensive written treatment plan signed by the patient is mandatory in all cases except emergency cases and specialty consults. This also includes failing to prepare and maintain a periodontal chart on a patient. If you are going to treat and follow a patient for more than an emergency visit or a specialty consultation, you should perform a periodontal exam. Just as important, the Board of Dentistry will expect you to chart this on a periodontal chart.

8.  Failing to document the type of and amount of a drug administered, a sedative used, a compound used, etc. Be sure this is accurately stated in your chart. Be sure this is accurately billed with the correct billing code.

9.  Failing to give patients a copy of their dental chart within a reasonable period of time after requested. (The courts usually define “reasonable” as 14 calendar days or ten business days; however, the Board of Dentistry allows up to 30 days. If you can reasonably provide it earlier, do so, documenting the date.

10.  Producing only part of the complete dental chart to the patient, subsequent treating dentist, or DOH investigator when requested. This has become more problematic as dentists’ convert more and more into electronic dental records. Be sure to print out and produce all treatment plans, histories, physical exams, family history questionnaires, medical history questionnaires, informed consent forms, photographs, treatment plans, x-rays, periodontal charts, progress notes, daily journal entires, bills, correspondence with health insurers or other third-party payers. Also included are prior dentists’ records received, operative reports, or any other documents you have relating to the patient’s treatment.

These are not hard and fast rules. We cannot assure you that you will never receive a DOH complaint, a patient complaint, a grievance, or a lawsuit if you follow them. However, if you follow them, you will probably find your patients happier, your practice calmer and more productive, and your risks of having a complaint filed significantly reduced or eliminated.

Click here to read one of my prior blogs about DOH complaints and investigations.

Contact Health Law Attorneys Experienced with Investigations of Dentists and Health Professionals Today.

The attorneys of The Health Law Firm provide legal representation to dentists, dental hygienists, physicians, nurses, nurse practitioners, CRNAs, 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.

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.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2021 The Health Law Firm. All rights reserved.

Dental Clinic Owners Found Guilty of $1 Million Medicaid, Tax Scheme

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

On February 21, 2019, a federal jury found the owners of several dental clinics in Missouri guilty of a $1 million scheme to defraud the government. The owners of All About Smiles LLC, were convicted of submitting false claims to Medicaid for dentures and other services and payroll tax fraud, according to prosecutors.

Submitting False Claims.

Prosecutors alleged that the couple that owned the practice ran several schemes through the dental clinics from 2010 to 2015, including conspiring to defraud Medicaid. A main part of the scheme was to provide dentures and other services to adults who didn’t qualify for Medicaid. They would then bill the Medicaid program anyway, receiving more than $720,000, according to the DOJ.

The pair also allegedly ran a similar scheme with orthodontic equipment, racking up an estimated 241 false claims, said prosecutors. All About Smiles was paid approximately $165,700 during the the duration of the scheme.

Payroll Problems.

In addition to the fraud, the owners allegedly failed to forward payroll taxes to the Internal Revenue Service (IRS) even though the money was withheld from employee paychecks. Instead, the married pair used the almost $195,000 to cover lavish personal expenses and make payments on a variety of vehicles, said the DOJ.

Not Smiling Anymore.

Jurors found the couple guilty on all charges detailed in a 40-count indictment accusing them of fraudulently operating three All About Smiles LLC dental clinics, said the DOJ. Additionally, their legal woes continued to stack up as each was also convicted on a count of theft of public money for collecting unemployment benefits while working.

The female owner faces up to 10 years in prison on every count besides the payroll tax conspiracy charge, which comes with a maximum penalty of five years. The husband owner could get up to a decade for obtaining unemployment benefits and five years for each additional charge, prosecutors said.

Click here to read the DOJ’s press release.

To read one of my prior blogs on a similar case about a dentist defrauding medicaid, click here.

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

The attorneys of The Health Law Firm represent dentists, oral surgeons, and other health care providers in Medicaid audits, Medicare audits, insurance billing audits, ZPIC audits, RAC audits, administrative litigation and civil litigation throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in licensure complaints and investigations, DEA investigations, Medicare and Medicaid fraud investigations, audits, recovery actions and terminations from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

“All About Smiles Owners Convicted of Fraud.” Ozark Independent. (February 21, 2019). Web.
Posses, Shayna. “Couple Found Guilty Of $1M Medicaid, Payroll Tax Scheme.” Law360. (February 21, 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.

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“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.

By |2019-04-18T18:44:05-04:00April 18th, 2019|Categories: Centers for Medicare and Medicaid Services, Dental Law Blog, Dentist Defense attorney, Health Care Fraud, Health care Law, Medicaid Fraud, Medicaid fraud|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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