Health care law encompasses a wide range of issues. Learn more about regulations, legislation and general information involving health care providers and professionals (physicians, nurses, pharmacists, therapists, mental health counselors, rehab facilities, nursing homes, DME suppliers, medical students and interns, pain management clinics, hospital administrators, etc.) including information regarding the Department of Health, professional boards (Board of Nursing, Board of Pharmacy, Board of Dentistry, Board of Medicine, etc.), DEA, AHCA (Florida Agency for Health Care Administration) and Medicare and Medicaid.

Medical Information Bureau (MIB) Reports and How They Affect Your Insurance Rates

Attorney Amanda ForbesBy Amanda I. Forbes, J.D.

When you apply for insurance, an insurance company will look at various factors regarding your history to determine how much your insurance policy will cost. Most insurers obtain a report from the Medical Information Bureau (“MIB”) and use this in determining the risk you pose and, hence, your policy premium.

The MIB checks past records to identify any errors, misrepresentations, or omissions made on an insurance application. An MIB report is similar to a credit report except it is specifically tailored for the insurance process. Click here to learn more.

What Does the MIB do?

Since 1902, the MIB has worked as a not-for-profit organization in the United States and Canada. Its members (e.g., life insurance companies, health insurance companies, disability insurers, etc.) use the MIB to help them determine a person’s “risk and eligibility during the underwriting of life, health, disability income, critical illness, and long-term care insurance policies.” Learn more about the organization here.

Insurance applications, whether for health, life, disability, critical illness, or long-term care, will almost always have several health questions that help the insurance company determine an appropriate risk classification for that individual. The higher the risk, the higher the premium, usually. Traditionally, some applicants in very high-risk categories (transplant patients, those with serious long-term chronic medical conditions) or in high-risk professions (e.g., parachuting instructors, trapeze artists, explosives experts) may not be able to obtain insurance at all.

Sometimes an applicant for an insurance policy may try to obtain lower premiums by knowingly omitting key information on their applications. Because of this, insurance companies started to rely on MIB reports to identify and prevent insurance fraud. The MIB provides information that can be used to identify false or incomplete applications.

It is estimated that the MIB saves its member companies over $1 billion annually (Note: I think this estimate probably comes from the MIB). It can do this because the information it provides to its members allows them to evaluate and assess risk more accurately. MIB’s members share information with MIB in a coded format to protect individuals’ privacy.

MIB Pre-Notices.

When a member company wants to search MIB’s database or report information to the MIB, it must first give the individual MIB a “pre-notice.” However, this is often buried in the fine print of the insurance application. The MIB “pre-notice” advises the individual that a report of their medical condition may be provided to MIB.

When the individual later applies for insurance with a different company that is a member of MIB, then MIB may provide that company with an MIB report.

After the individual receives MIB “pre-notice,” they are requested to sign an authorization. The authorization advises the individual that MIB is an information source, as well as others that may have records about the individual (e.g., primary care physician). The signed authorization permits the member company to receive and share information with MIB. Learn more about MIB “pre-notice” here.

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

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

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

About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

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

 

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

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

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

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

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

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

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

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

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

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

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

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

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

The Legislative History Supports this Interpretation.

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

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

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

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

Other Courts Have Held Similarly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

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

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

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

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

 

 

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Doctors & Nurses: Follow These 30 Tips for Professional Correspondence

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

I review many letters, e-mails, memoranda, and other types of correspondence prepared by my physician and nurse clients during my legal representation. These come to me often because of a dispute with a hospital, their peers, an insurance company, a lawsuit filed by a patient, a complaint being investigated by the licensing agency, an investigation of an incident, or another serious matter.

In many cases, way too many cases, such correspondence is unprofessional and defeats the purpose of the reason you are sending the correspondence.  Sometimes the “letter” is so bad, it will be disregarded by the reader to whom it was directed.  I have seen this from doctors, nurses, dentists, psychologists, owners of health care businesses, and many, many other highly educated professionals who really should know better.

When I receive a “letter” that has no return address on it, no date on it, is not addressed to a person or organization, has typographical errors and misspellings, does not have paragraphing, or which is not signed, I cringe.

When such documents are dictated and transcribed by a professional medical transcriptionist, they are usually properly formatted and many of the errors I note below are avoided.  However, when the health professional types (or word-processes) his or her own document or, worse yet, hand writes it, this is when I see the most errors.

To avoid these errors that make your correspondence and written communications look unprofessional, follow these tips.


Remember Why You Are Writing.

Remember, the basic purpose of your correspondence is to communicate ideas effectively. In many cases, it will be to invoke your legal rights in certain situations (such as an appeal or a hearing request). Sometimes, it will attempt to persuade your hospital, peers, or employer to take a certain action or refrain from a certain action. Remember that your correspondence is often the first impression that the other side will have of you. Do you want it to be an impression that you are sloppy, lazy, unprofessional, not knowledgeable, uneducated, or confused?

Whether you are communicating in a letter or via e-mail, these rules still hold true.  In many (if not all) situations involving legal proceedings or legal issues, it is probably best to communicate via a letter sent by U.S. mail or some other reliable delivery service (e.g., Federal Express, Airborne Express, DHL, etc.).  Even if you are transmitting your information via an e-mail, it is my suggestion to prepare it in the form of a paper letter (if your e-mail is not set up to insert your letterhead and signature block automatically) and then scan it in and send it electronically.

I discourage legal communications via e-mail in serious matters because e-mails are often difficult to obtain, isolate, and authenticate when you need them for hearings.  Additionally, they are rarely secure, often available to many others who shouldn’t see them, and easily susceptible to being accidentally sent to others who should not see them at all.

Horror Stories of Unprofessional Correspondence.

Why do I feel this article is necessary?  Because of all the truly horrible correspondence I have seen written by allegedly highly educated professionals, mostly physicians and nurses.  That’s why!

True “Horror Stories” About Unprofessional Correspondence.

Here are just a few examples of true “horror stories” regarding unprofessional correspondence:

The physician never wrote a separate response to any charges or allegations made against him after receiving letters from the Medical Staff advising him he was under investigation.  He would just handwrite (scribble, actually) his remarks on the bottoms and in the margins of whatever document was sent to him and then send it back.

A nurse practitioner was required to respond to serious negligence charges, resulting in an adverse outcome to a patient. On unlined paper, she hand wrote a response letter that was not addressed to anyone, not dated, not signed, and did not state who was sending it. There was no name or signature on it.

A physician was required to provide his analysis of a patient’s case for peer review purposes within the hospital.  His typed letter of three full pages, single-spaced, contained one long paragraph.  I used to work for a Medical Corps Admiral when I was a Navy JAG Corps officer.  The Admiral, a very educated and proper professional, would just glance at such correspondence and state:  “I can tell this doctor doesn’t have any idea what he is talking about.”  Failing to follow good correspondence procedures will show others your thoughts lack organization and cohesion.  A document that lacks organization reflects a mind that lacks organization.

A health professional was required to complete an application for clinical privileges.  He wrote all of the answers by hand, not even staying within the lines on the form, writing over the questions printed on the form and around in the margins of the application.  This is what he signed and turned in to the credentials committee at the hospital.  Believe me, this did not look very professional.

A physician was requested to respond to a medical staff inquiry from the hospital.  Her response came back typed (actually word-processed) in a type font that was 22 characters per inch (cpi), almost too small to read.  Perhaps she was just trying to save a sheet of paper.  But many of us would have had to pull out a magnifying glass or put on reading glasses in order to be able to read it.  Once it is scanned or faxed and then photocopies or re-scanned and re-faxed several times, it will be completely illegible.  If you are actually trying to communicate your ideas, make your correspondence easier to read, not harder to read.  This is my cardinal rule.

A dentist was notified of a pending complaint investigation being opened against her dental license.  She wrote her response to the charges back to the investigator, without using any business address or title, and began her response statement “Dear Sharon,”.  Do not treat others informally, especially in professional or formal situations.  You will be deemed to be unprofessional when you do so.  The investigator is not your friend, your sister, or your mommy.  Do not address her by her first name. Do not end the salutation with a comma, like you would a love letter.  End it with a colon like you would a professional business letter.


30 Tips for Good Professional Correspondence.

Here are some pointers on professional communications that should be followed in all of your professional written communications about business, professional or legal matters, even in e-mails. Please note, the terms below in quotation marks have certain defined meanings.  If you don’t know what these terms mean, look them up.

1.  Always remember that the reason you are sending the correspondence is to attempt to effectively and accurately communicate your position and ideas.  If you are trying to make your message indecipherable or difficult to understand, ignore these tips.  If you are trying to come across as someone who doesn’t give a damn about how he or she is perceived, ignore these tips.  If you want to come across as unprofessional, ignore these tips.

2.  Make sure you include your complete and correct “return address” and contact information, if you are not using your own letterhead.  This includes your physical or mailing address, telephone number, telefax number and e-mail address, so that the other party knows exactly how to reach you.  In cases where you already have this on your letterhead, be sure to use your letterhead (but only your own).  Also, it appears more professional to create a letterhead with the information in it and to use your new letterhead instead of having a professional business letter with a typed “return address.”  However, a typed “return address” is better than none.

3.  Don’t use someone else’s letterhead.  Don’t use your hospital, medical group or institutional letterhead for your own personal communications, unless you are the owner.  Use your personal letterhead (see above), instead.  If you are being accused of poor utilization review, unprofessional conduct, or personal use of hospital (or company) property, then using someone else’s letterhead just helps prove the charge against you.

4.  Date your correspondence.  Date your correspondence.  Date your correspondence.  Nothing shows a lack of professionalism and lack of attention to detail as sharply as undated correspondence.  It will certainly be difficult to prove when your letter or document was sent if you do not have a date on it.  A year or two later, it may be completely impossible to do so.  In case I forgot to mention it, be sure to date your correspondence.

5.  Use titles or honorifics.  In the “business address” of your correspondence, always use the complete name of the person to whom you are writing (if known) together with that person’s honorific or professional title (e.g., Mr., Ms., Dr., Nurse, Prof., Dean, etc.)  This shows both respect and professionalism.

6.  Always use the complete mailing address, including title, of the person to whom you are sending the letter.  In the business address of your correspondence include not only the person’s name and honorifics, but title or position and division within the institution or organization to which you are sending it.  In the case of large organizations, you should include the building and suite or room numbers and any internal routing codes, designations, “mail stops” or other organizational routing codes, that the agency or business you are writing requires to route its mail internally.  Large organizations, especially government agencies and insurance companies, all have large mail rooms which sort and route all mail the organization receives from any source.  Correct internal routing codes will help ensure that your correspondence gets to the correct person or official in a timely manner.  Often today companies scan or have all e-mails saved by a clerk, as well

7.  Always use a salutation.  This is self-explanatory, but see below.

8.  In your “salutation,” always use the person’s last name with a title or honorific.  It is customary to use the term “Dear” in a salutation in formal writing, so this is permitted.  But you may leave it out.  For example, “Dear Secretary Jones:” or “Secretary Jones:” or “Dear Dr. Johnson:” or “Dr. Johnson:”;  all of these are correct.  Never refer to the person by that person’s first name in any type of formal correspondence or correspondence that anyone else might read.  Never say:  “Dear Sue:” or “Sharon:”.  Even if you know these people well enough to call them by their first names, don’t do it in this situation;  it’s unprofessional and may be interpreted as “talking down” to the person.

9.  Always end your “salutation” with a colon, not a comma.  A comma is only used in informal communications to those you know well or socially, such as a letter to your mother or a note to your girlfriend.  Unless this is your mother or your girlfriend to whom you are writing, use a colon.  For example, “Dear Secretary Jones,” or “Dear Sue,” is incorrect.  “Dear Secretary Jones:” or “Ms. Smith:” is correct.

10.  Type (or word-process) your correspondence or have it typed (or word-processed) for you;  this is one reason transcriptionists, secretaries and clerks have jobs.  Do not send handwritten letters in formal or professional matters.  Do not write on the other person’s correspondence or documents and send them back.  Prepare and send a professional looking letter or e-mail, even if you must pay someone to type it for you (and if you are sending an e-mail, I know you can type a little bit yourself, anyway).  To do otherwise is to show laziness, disrespect and unprofessionalism.

11.  Always use a type font in your correspondence (including e-mails) of at least 12 points (10 characters per inch).  Do not use a small, difficult to read type fonts, for example, the size of the type font that most e-mail software defaults to.  Smaller type fonts than 12 points become difficult to read, especially if scanned/rescanned, faxed/refaxed or copied/recopied.  Change the default font in your e-mail software or computer word processing software, if necessary.  You can do this, regardless of how difficult it may seem at first;  I know you can do it, because I can do it.  Make your professional correspondence easier to read, not more difficult to read.

12.  Never use unprofessional looking type fonts for your communications.  Stay away from script type fonts, italics or novelty type fonts.  These are notoriously more difficult to read and look unprofessional.  You are not publishing a flyer for a high school bake sale.  Times New Roman, CG Times, and similar type fonts are more professional looking and easier for a person to read.  Use Courier or Letter Gothic type fonts if necessary.

13.  Keep the correspondence to which you are responding unmarked.  One reason to not write on or mark up the other person’s documents or correspondence is that you may need them as evidence in a court of law or a hearing some day.  Nothing looks less professional than a document you are trying to use as evidence when a different person has made handwritten marks all over it.  The impression is similar to one in which a child with a box of crayons has gotten to it.  You don’t want this or need this.  Show respect and self-control.  Keep the other side’s documents pristine.  They will look much better that way as your “Exhibit 1” in the court hearing.

14.  Use a good concise, descriptive reference line or subject line (often called the “re:” line).  Make it a very brief summary.  State what the content of your letter is actually about.  State if you are responding to a letter or document that you received from the “addressee” (the person to whom you are addressing your correspondence) of your letter.

15.  Include the recipient’s routing information.  If the intended receiver of your letter or correspondence (the “addressee”) included reference numbers, file numbers, account numbers, case name and numbers, a policy number, an investigation number, a routing number, or other similar information on its letter to you, repeat these back in the reference line of your correspondence.  This will help make sure that your correspondence gets routed to the correct file and recipient more timely.  This is especially crucial in large organizations and government agencies.

16.  The contents of the body of your correspondence should be easy to read and easy to understand.  To this end, be sure to use short sentences and short paragraphs.  Each paragraph should convey one idea.  Use headers and section titles, if necessary, to organize your correspondence, especially if it is lengthy.  Remember, headings within your letter that help to organize it are like street signs in a busy city.  They will really help any subsequent reader (and this may be a judge, a jury or a Board of Mediciney) to navigate his, her or its way through your letter.

17.  Be sure to skip a line between each paragraph and, preferably, indent the first line of each paragraph.  [Note:  Some writers will tell you not to indent the first line of each paragraph in professional correspondence;  however, I feel that this makes the correspondence more difficult to read, so I encourage indenting or tabbing in on the first line of each paragraph.]  This makes it easier on the reader and more likely that your ideas will not get lost in a crowd of words.

18.  Keep your paragraphs short and to the point.  Nothing turns readers off as much as a single lengthy paragraph written from margin to margin taking up the whole page.  I suppose some people may have never been taught what paragraphs are.  However, I am willing to bet that most were.  These rare used even in foreign countries.

19.  In longer correspondence, use section headings (in bold or underlined) or headings for each issue, to better organize it.  Think of these as road signs on a long road.  They help the reader to know where he or she is at any given time, and where he or she is going.

20.  When using headers, skip two lines before the header and one line after the header. This helps to set off the new section and header and show a definite division.

21.  Keep your language objective and professional.  Do not ever use profanity [Oops, I just went back and removed the word “damn” I used above.]  Do not ever use any comments even remotely resembling racism, sexism, or antisemitism or prejudice.  Do not be sarcastic.

22.  Be direct and concise in your language.  To the greatest extent possible, use the same terminology and wording that the other party uses, or has used, or the wording used in whatever statutes, regulations, policies, procedures, instructions, or governing documents with which you are dealing (but also, be sure you know what the words and terms mean).

23.  If you intend to request a formal hearing say “I request a formal hearing.”  If you want a full refund, state:  “I request a full refund.”  If you want to appeal the decision, state:  “I want to appeal the decision.”  Don’t be wishy-washy or vague.  For example, don’t say, “I am looking for an attorney to file an appeal for me,” when what you mean to say is “I appeal the decision” or “I request an appeal.”  Say precisely what you want.  Don’t be vague or leave the reader guessing.

24.  If there are any deadlines by which you must respond, be aware of these and make sure your response is received by that date.  Remember “received” means “actually received” by the correct person (or office) at the correct address.  It does not mean “mailed by” or “postmarked by.”  If you have correspondence or a document to which a response must be received by a ceratin date, you need to make sure it is actually in the receiving person’s hands by that date, even if you must hand carry it to that person.  I will usually send important documents by two different methods, in case the mail man dies, the courier service’s plan crashes or the e-mail server goes down.

25.  In closing your correspondence conclude by stating what action is next, whether this is action you intend to take, or action you are requesting the other party to take.  For example:  “I expect to hear from you within ten days as to whether you grant my request or not.”  “Please contact me with hearing dates within the next fourteen days.”  “I will forward you a refund within five days.”  “I will send you my records within five days.”

26.  Always advise the other party of exactly how they should contact you;  provide multiple means of contacting you.  If you are very busy or have an assistant who is authorized to act for you, provide that person’s name and contact information to use as an alternate, as well.  Then be available to receive the return communication(s).  Don’t give telephone numbers you never answer.  Don’t provide an incorrect address (e-mail or physical).

27.  In dealing with dates and deadlines, remember that ten days is ten days;  fourteen days is fourteen days, twenty-one days is twenty-one days.  Made up rules such as “weekends and holidays don’t count” are just that, made up (outside of formal court proceedings).  If the other party has given you “fourteen days to respond,” this means fourteen days from the date on the letter, unless specifically stated otherwise.  Fourteen days means fourteen days, unless it is specifically stated otherwise (e.g., “you have fourteen business days to reply”).

28.  Include a professional closing above your signature.  This should be “Sincerely,” “Sincerely yours,” “Respectfully,” “Respectfully submitted,” or some other professional closing.  Do not conclude with “Love,” or “Very truly yours,” despite the tradition.

29.  In your signature block, include your full typed name, with credentials and title or position listed.  For example, your full name, followed by your degree and other credentials (e.g.,  “John J. Smith, M.D., F.A.A.C.P.”) should be on the line immediately below where you sign.  Next should be listed your position within your organization (if applicable) (e.g., “Chair, Pediatrics Department”).

30.  If you have enclosures, list them at the end of the correspondence, giving a brief or shortened description and numbering them (this is slightly different from military correspondence).  List and number them in the order you discuss them in your correspondence.  Be sure they are properly organized, labeled and divided, especially if any are lengthy.

Following these simple rules, most people learn in middle school will help to keep your correspondence professional looking and in conformity with what most professionals see on a daily basis.  If your correspondence is professional-looking, people will be more likely to think you are a professional and to treat you professionally.

Contact Health Law Attorneys Experienced in Representing Healthcare Professionals.

The Health Law Firm’s attorneys routinely provide legal representation to nurses, physicians, medical groups, pharmacistspharmaciesphysicians, and other health providers. We provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints.  We also provide legal representation in  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.  We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or (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., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

KeyWords:  representation for Professional correspondence, The Health Law Firm, legal representation for health care physicians, health care professional representation, defense lawyer for health care professionals, reviews of The Health Law Firm, tips for professional correspondence, The Health Law Firm attorney reviews, representation for professional letters, healthcare professional letter representation, representation for correspondence for doctors and nurses, professional correspondence for legal dispute, Florida health law attorney, legal representation for nurses, nurse defense lawyer, physician defense lawyer, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“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.

Doctor, You Might Need A Home Medical Equipment Provider License, If . . .

By Michael L. Smith, J.D., R.R.T. Board Certified by The Florida Bar in Health Law

Physicians frequently utilize electrostimulation or transcutaneous electrical nerve stimulation (TENS) units, and other medical equipment in the course of their practice. Most often the physician or the practice bills the patient or the patient’s insurance for the medical equipment. Unfortunately, some physicians do not know that a special Home Medical Equipment Provider (HMEP) license may be required in Florida in order to legally bill patients for TENS units, and other durable medical equipment that the physicians provide to their own patients. Violating the laws that require a license can place the physician and the practice in some serious legal trouble.

Requirements for Physicians.

Under Florida law, a special Home Medical Equipment Provider (HMEP) license is required before a physician may provide and bill a patient or the patient’s insurance company for TENS units and most other durable medical equipment. Physicians who provide and bill for medical equipment and supplies without the required license may be charged with a second-degree misdemeanor. The same physicians may also be subjected to an administrative fine of $5,000 for each violation. Additionally, insurance companies routinely refused to pay for TENS units and other durable medical equipment that physicians have provided to their own patients because the physician has not obtained a Home Medical Equipment Provider license.

New Legislation.

The Florida Legislature recently passed an amendment to the Home Medical Equipment Provider license requirement that would allow allopathic, osteopathic, and chiropractic physicians to sell or rent electrostimulation medical equipment and supplies to their patients in the course of their practice without first obtaining the Home Medical Equipment Provider license. However, the amendment does not change the license requirements for other durable medical equipment that physicians sell or rent to their own patients in the course of their practices. The amendment became effective on July 1, 2020.

Any Florida physician providing TENS units or other durable medical equipment to their own patients and billing the patients or the patient’s insurer for those services should consult with an experienced health law attorney to ensure the services are provided legally.

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

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

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

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. 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.

Senate Republicans Announce New Privacy Legislation: The SAFE DATA Act

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

On September 17, 2020, Republican members of the Senate Commerce Committee introduced sweeping federal privacy legislation. The proposed law is called the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The Act is a combination of bills previously introduced in the Senate: the Consumer Data Protection Act, Filter Bubble Transparency Act, and the Deceptive Experiences to Online Users Reduction Act. It hasn’t passed, yet, so let’s wait and see.

HAH! You thought you had learned all of the acronyms and abbreviations because you know what HIPAA, HITECH, FERPA, USCDPA, and FOIA mean. Let’s see how long it takes you to remember what this one stands for.

What is the SAFE DATA Act?

This proposed legislation has three main components if passed into actual law. It:

1. Provides consumers with more choice and control over their data (allegedly),
2. Directs business to be more transparent and accountable (allegedly), and
3. Strengthens the FTC’s enforcement power (allegedly).

The Act would provide consumer rights, such as access, notice, deletion, opting-out, correction, and a right to data portability. It also prohibits covered entities from discriminating against consumers who utilize some of the proposed rights. It will prohibit organizations from denying goods or services to individuals because they have exercised any of their rights as set forth in the bill.

Implementation of the bill would be financed through a $100 million appropriation to the Federal Trade Commission (FTC) to enforce its provisions. Therefore, the FTC would gain the authority to obtain injunctions and impose other sanctions for violations.


Integrating Other Privacy Bill Provisions.

The SAFE DATA Act incorporates three main bill provisions into the proposal.

First, it includes the Filter Bubble Transparency Act (don’t ask). It requires a notice on public-facing websites that use algorithmic ranking systems

Second, it contains provisions from the Deceptive Experiences To Online Users Reduction (“DETOUR”) bill (ouch!). This provision makes it unlawful for an online service with more than 100 million authenticated users to use a user interface to impair user autonomy.

Third, like the United States Consumer Data Privacy Act (CDPA), the proposal requires companies to obtain affirmative, express consent from the customer before processing or transferring individuals’ sensitive data.

According to Julie Brill, former Commissioner of the FTC, a comprehensive privacy law would also address consent and collection issues related to COVID-19 health data, while at the same time promoting racial equality and prohibiting data discrimination. Boy, that’s great; who knew this was likely to be accomplished in our lifetimes.

View the proposed Safe Data Act in full.

You may also read one of my prior blogs to learn more about HIPAA privacy rights violations and medical confidentiality.


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.

Sources:

Cox, Ayeisha. “Lawmakers Introduce the SAFE DATA Act.” American Health Lawyers Association (AHLA). (October 2, 2020). Web.

Traylor. Christian. “Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?” JD Supra. (September 29, 2020). Web.

Panakal, Dominic Dhil. “Senate Republicans Stitch Together Safe Data Ideas into New Bill.” The National Law Review. (September 24, 2020).

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 © 2020 The Health Law Firm. All rights reserved.

Mississippi Businessman Sentenced to 18 Years in Prison For $288 Million Tricare Fraud Scheme

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

On January 15, 2021, a Mississippi man was sentenced to 18 years in prison by a federal judge for his role in a $287.6 million scheme to defraud the Tricare health benefits program. According to the U.S. Department of Justice (DOJ), he committed fraud by paying doctors and drug distributors kickbacks.

What is Tricare?

Tricare is the health care benefit program serving active-duty military personnel, military retirees, and their dependents worldwide. The program provides comprehensive coverage to all beneficiaries, including health plans, special programs, prescriptions, and dental plans. Learn more about Tricare here.

Conspiracy to Commit Health Care Fraud and Money Laundering.

In July 2020, he pled guilty to orchestrating a $287.6 million scheme to defraud Tricare by paying doctors and drug distributors kickbacks. The kickbacks were in exchange for unnecessary compounded medication prescriptions sent to his pharmacies. He admitted to tampering with drug formulas and bribing doctors to authorize prescriptions to rake in reimbursements from the federal benefits program. Read the complaint in full.

More Details of the Fraud Scheme.

According to the government, from 2012 to 2016, he used marketing companies, drug distributors, and compounding pharmacies that he owned to contract with other pharmacies to provide prescriptions for the medications.

He admitted to creating prescription pads with the drug formulas for doctors to push the expensive drugs onto patients easily. In exchange for participating in the fraud, doctors got a cut of the pharmacy benefits managers and programs’ reimbursements.

Additionally, he and his co-conspirators conducted illegal wire transfers of millions of dollars in illegally obtained cash to various companies and bank accounts. The government said he personally obtained more than $40 million from the scheme.

As part of his plea agreement, he is ordered to forfeit more than $50 million worth of property, luxury cars, and an airplane. He was also ordered Friday by U.S. District Judge Keith Starrett of the Southern District of Mississippi to pay $287,659,569 in restitution. Click here to view the plea agreement.

To read about a similar Tricare fraud case in Florida, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in Representing Pharmacies and Pharmacists.

The Health Law Firm represents pharmacists, pharmacies, doctors, and medical groups in DEA, DOH, FDA, OIG, and DOJ investigations, qui tam and whistleblower cases, regulatory matters, licensing issues, litigation, administrative hearings, inspections, and audits. The Firm also represents both plaintiffs (whistleblowers or relators) and defendants in False Claims Act (whistleblower or qui tam) cases. The firm’s attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Sources:

Clough, Craig. “Miss. Businessman Gets 18 Years For $288M Tricare Fraud.” Law360. (January 15, 2021). Web.

Stawicki, Kevin. “Miss. Businessman Pleads Guilty To $288M Tricare Fraud.” Law360. (July 10, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

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

 

Federal Judge Rules Florida Pediatric Group Must Face EEOC Suit for Nurses’ Retaliation Compliant

George F. Indest III with 30+ years of experience, is Board Certified in health lawBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 4, 2020, a Florida federal court judge ruled that a Tampa-based pediatric medical group cannot escape a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit, denying its attempts to dismiss the case. According to the federal agency, Pediatric Health Care Alliance unlawfully retaliated against a nurse after the nurse reported a doctor for sexual harassment. U.S. District Judge Thomas Barber denied the medical group’s motion to dismiss, saying it neglected to confront or defend against the nurse’s claim that the medical group demoted her as punishment.

The EEOC Complaint: Nurse Forced to Quit After Reporting Sexual Harassment.

On June 22, 2020, the EEOC filed an employment lawsuit in the United States District Court for the Middle District of Florida. According to the complaint, a female nurse at Pediatric Alliance reported that a doctor at the company inappropriately touched her on two different occasions. Notably, that doctor was also the Vice President (VP) of the company.

According to the suit, the nurse suffered almost immediate retaliation for filing the complaint against the VP. The EEOC alleges that Pediatric Alliance transferred her to a different location against her wishes, replaced her nursing duties with administrative ones, and docked her pay. As a direct consequence of the retaliation, the EEOC contends that the long-time employee was, in effect, forced to resign.

To read the EEOC’s press release on the lawsuit, click here.

To read the EEOC’s lawsuit, in this case, click here.

Retaliation for filing A Sexual Harassment Complaint is Unlawful, Even if it Later Turns Out the Complaint Wasn’t Valid: Title VII of the Civil Rights Act.

Under federal law (Title VII of the Civil Rights Act of 1964), employees have a legal right to raise workplace discrimination or harassment complaints. If an employee exercises this right, their company or organization is strictly prohibited from retaliating against them for doing so. Employers cannot take adverse employment action against an employee in retaliation for making a formal or informal complaint of harassment.

Adverse action occurs when an employee is penalized or punished in some form. In this case, transferring the nurse to a less desirable location, reducing salary, and taking away job duties are all examples of adverse action.

Analysis of the Ruling.

In this case, the defendant’s medical group/employer tried to get the court to dismiss the lawsuit (complaint) based on the EEOC’s earlier determination that the nurse failed to sufficiently support charges of sexual harassment. If the employer had not retaliated against the nurse, in this case, would have then been over. But that didn’t happen. The complaint asserted a claim of retaliation in violation of Title VII, not sexual harassment.

The court also noted that the medical group did not argue that the EEOC’s retaliation allegation was insufficient. Accordingly, the judge denied the motion to dismiss filed by Pediatric Alliance, the employer.

To view the court’s opinion in full, click here.

Tips for Employers to Avoid EEOC Complaints.

1. The employer should adopt a “zero tolerance” policy for discrimination and harassment.

2. Make sure your officers, supervisors, and key employees are instructed on a regular basis about what situations are considered sexual harassment or discrimination.

3. Make sure your officers, supervisors, and key employees sign a statement each year, stating that they are aware of the company’s “zero tolerance” policy and what constitutes harassment and discrimination.

4. Establish a method by which employees can submit reports of harassment and discrimination without the perpetrator becoming aware of it. This should be part of the employer’s compliance program.

5. Be sure your company or group has a good directors and officers (D&O) liability insurance and excess liability insurance policy that covers sexual harassment and discrimination claims.

6. Include an indemnification clause in the contracts of officers, supervisors, and key employees, requiring them to indemnify the employer in any case where the employer is held liable for acts of sexual harassment or discrimination.

7. Be sure that an employee who files a complaint does not have adverse employment action taken against him or her, especially based solely upon the word of the person against whom the complaint was filed. Bring a human relations expert in as early as possible to consult on the case, as well as an employment law defense attorney.

8. Make sure that all employees, including officers, supervisors, and key personnel, receive training once a year on avoiding sexual harassment and discrimination and document it in their personnel/human resources file. Hiring an outside trainer can make this less burdensome and more enjoyable. Again, this should be part of the employer’s compliance plan.

 

Don’t Wait Until It’s Too Late, Talk to an Experienced Attorney Now.

Florida workers have a right to report sexual harassment or discrimination without facing retribution, but workers often file complaints that are not valid. The EEOC advances opportunities in the workplace by enforcing federal laws prohibiting employment discrimination. Find out how The Health Law Firm can help if you are an employer that finds itself in this legal situation.

Additionally, please read one of our recent blogs dealing with a similar EEOC lawsuit.

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

The Health Law Firm’s attorneys routinely provide legal representation to nurses, physicians, medical groups, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in 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. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

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:

Shanes, Alexis. “Fla. Pediatric Group Can’t Dodge EEOC Retaliation Suit.” Law360. (November 4, 2020). Web.

“EEOC Sues Pediatric Health Care Alliance for Retaliation Over Harassment Complaints.” U.S. Equal Employment Opportunity Commission (EEOC). (June 22, 2020). Web.

Bean, Mackenzie. “Florida practice retaliated against nurse for reporting harassment, EEOC says.” Becker’s Hospital Review. (November 9, 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. Call (407) 331-6620 or Toll-Free at (888) 331-6620.

KeyWords: Equal Employment Opportunity Commission (EEOC) investigation defense, discrimination harassment complaint defense attorney, legal representation for physicians, medical group defense attorney, complex health care litigation attorney, complex civil litigation attorney, complex medical litigation lawyer, medical staff peer review defense attorney lawyer, federal administrative hearing defense attorney, hospital complaint investigation defense, peer review defense attorney, medical staff investigation defense lawyer, medical staff clinical privileges defense legal representation, hospital medical staff fair hearing defense attorney lawyer, hospital medical staff fair hearing defense legal counsel, legal representation for healthcare business litigation matters, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, representation for EEOC complaints, workplace retaliation defense lawyer, healthcare employment law defense lawyer, nurse attorney, legal representation for nurses, legal representation for complaints against nurses

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

 

 

New Comprehensive Privacy Legislation Announced: The SAFE DATA Act

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

On September 17, 2020, Republican members of the Senate Commerce Committee introduced sweeping federal privacy legislation. The proposed law is called the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The Act is a combination of bills previously introduced in the Senate: the Consumer Data Protection Act, Filter Bubble Transparency Act, and the Deceptive Experiences to Online Users Reduction Act. It hasn’t passed, yet, so let’s wait and see.

HAH! You thought you had learned all of the acronyms and abbreviations because you know what HIPAA, HITECH, FERPA, USCDPA, and FOIA mean. Let’s see how long it takes you to remember what this one stands for.

Details of the New SAFE DATA Act.

This proposed legislation has three main components if passed into actual law. It:

1. Provides consumers with more choice and control over their data (allegedly),
2. Directs business to be more transparent and accountable (allegedly), and
3. Strengthens the FTC’s enforcement power (allegedly).

The Act would provide consumer rights, such as access, notice, deletion, opting-out, correction, and a right to data portability. It also prohibits covered entities from discriminating against consumers who utilize some of the proposed rights. It will prohibit organizations from denying goods or services to individuals because they have exercised any of their rights as set forth in the bill.

Implementation of the bill would be financed through a $100 million appropriation to the Federal Trade Commission (FTC) to enforce its provisions. Therefore, the FTC would gain the authority to obtain injunctions and impose other sanctions for violations.

Incorporating Other Privacy Bill Provisions.

The SAFE DATA Act incorporates three main bill provisions into the proposal.

First, it includes the Filter Bubble Transparency Act (don’t ask). It requires a notice on public-facing websites that use algorithmic ranking systems

Second, it contains provisions from the Deceptive Experiences To Online Users Reduction (“DETOUR”) bill (ouch!). This provision makes it unlawful for an online service with more than 100 million authenticated users to use a user interface to impair user autonomy.

Third, like the United States Consumer Data Privacy Act (CDPA), the proposal requires companies to obtain affirmative, express consent from the customer before processing or transferring individuals’ sensitive data.

According to Julie Brill, former Commissioner of the FTC, a comprehensive privacy law would also address consent and collection issues related to COVID-19 health data, while at the same time promoting racial equality and prohibiting data discrimination. Boy, that’s great; who knew this was likely to be accomplished in our lifetimes.

View the proposed Safe Data Act in full.

You may also read one of my prior blogs to learn more about HIPAA privacy rights violations and medical confidentiality.


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.

Sources:

Cox, Ayeisha. “Lawmakers Introduce the SAFE DATA Act.” American Health Lawyers Association (AHLA). (October 2, 2020). Web.

Traylor. Christian. “Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?” JD Supra. (September 29, 2020). Web.

Panakal, Dominic Dhil. “Senate Republicans Stitch Together Safe Data Ideas into New Bill.” The National Law Review. (September 24, 2020).

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 © 2020 The Health Law Firm. All rights reserved.

Yale University Agrees to Pay $87,500 to Settle Allegations It Underpaid Female Doctors

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

Yale University agreed to pay $87,500 to resolve discrimination allegations with the U.S. Department of Labor. The discrimination alleged that the Ivy League school paid four women cardiologists significantly less than their male colleagues from October 2016 to September 2017. While not admitting the allegations, the university agreed to the settlement which will reportedly cover the difference in pay for the women affected, the Office of Federal Contract Compliance Programs (OFCCP) said.

Alleged Pay Discrimination.

The OFCCP first detected the pay disparities during a routine compliance audit of the university’s medical school, the agreement said. The agency found that in 2016, Yale University paid four female cardiologists less than similarly situated male physicians at the School of Medicine’s Cardiovascular Medicine Section.

According to the settlement, Yale hired the doctors as part of the university’s “acquisition of community practices and hospitals associated with the Yale-New Haven Hospital System.” In 2018, Yale allegedly cut the women doctors’ employment category and moved them to a new faculty category. OFCCP claims that the medical school category is supposed to have a uniform compensation structure in place. Click here to read the settlement agreement in full.

In response to the allegations, a Yale was quoted as saying: “The conciliation agreement involves only four employees out of a workforce of over 16,000. OFCCP admitted that it found no pay disparities as to any but these four employees, who held roles in an employment category that has not existed for over two years.”

To read the press release issued by the Department of Labor, click here.

Additionally, read my recent blog on a previous discrimination lawsuit against Yale.

What does this show us? That at least in federal programs and in educational institutions and medical programs receiving federal funds, discrimination is prohibited and action will be taken to remedy it.

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

At the Health Law Firm, we provide legal services for physicians, including residents, and fellows, as well as medical students. We also represent other health professionals, clinical professors, dentists, psychologists, psychiatrists, mental health counselors, and other healthcare providers. We represent health facilities, medical groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, physicians, including those involved in clinical research, complaints, and investigations.

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:

Ottaway, Amanda. “Yale Settles OFCCP Claims That It Underpaid Female Doctors.” Law360. (October 5, 2020). Web.

Smith, Paige. “Yale University Settles DOL Claims of Pay Bias Against Women (1).” Bloomberg Law. (October 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in 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 © 2020 The Health Law Firm

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