Government Deems Marijuana Dispensaries ‘Essential’ During COVID-19 Shutdowns
By Carole C. Schriefer, J.D.
On March 17, 2020, amid Coronavirus shutdowns, multiple cities and state health departments have declared medical marijuana dispensaries essential to health care. Many cities are closing or considering closing business and retail operations to stop the spread of the virus. Other “essential” businesses that will remain open include pharmacies, grocery stores, and financial institutions.
As of this date (3/23/2020), Florida still has not joined the ones declaring them to be essential.
“Marijuana is Essential Medicine for Many.”
After residents were told to stay home, a number of cities, including Colorado, revised their position in other states and deemed cannabis “an essential medicine,” allowing stores to stay open. Read Colorado’s Essential Business Order and Public Health guidance.
San Fransico’s Mayor London Breed announced adjustments to the city’s public health order clarifying that dispensaries and marijuana deliveries are critical. “In terms of the cannabis dispensaries, the Department of Public Health [in California] today clarified that since cannabis has medical uses, dispensaries will be allowed to operate as essential businesses, just as pharmacies are allowed to do,” she added.
According to the New York State Department of Health, “In the event nonessential businesses are forced to shut down due to COVID-19, registered organizations in the medical marijuana program will be considered essential and allowed to remain open because they are considered medical providers.” Read the guidance issued by the state of New York.
Following right along, Illinois’ Department of Financial and Professional Regulation issued new, temporary guidelines, relaxing where medical marijuana sales can take place in order to “help reduce contact between individuals.” The state will allow medical dispensaries to sell cannabis “on the dispensary’s property or on a public walkway or curb adjacent to the dispensary.” Read the temporary guidance issued by Illinois.
In addition, other states, such as Michigan, Massachusetts, and Washington have issued bulletins relaxing regulations regarding delivery and in-store transactions in order to limit contact between patients and vendors.
What Will Florida Do?
The question is, will Florida and other states continue to follow suit if necessary? On March 16, 2020, Florida’s Gov. Ron DeSantis enacted Emergency Order 20-002 to temporarily allow qualified physicians to use telemedicine. However, so far, there has not been any guidance issued specifically on medical marijuana dispensaries. View Florida’s Emergency Order 20-002.
Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.
The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly help to complete and submit the applications for renewals, registration, permitting, and/or licensing, complying with Florida law. We also represent health facilities, health clinics, and pharmacies facing proceedings brought by state regulators or agencies.
To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Sources:
Booker, Brakkton. “Amid Coronavirus, San Francisco, New York, Deem Marijuana Businesses ‘Essential’.” NPR. (March 17, 2020). Web.
Reisman, Sam. “Medical Pot Deemed ‘Essential’ Amid COVID-19 Shutdowns.” Law360. (March 17, 2020). Web.
Smith, Jeff. “Medical cannabis businesses increasingly deemed ‘essential’ during coronavirus pandemic.” Med Biz Daily. (March 18, 2020). Web.
About the Author: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456. Its main office is in the Orlando, Florida area.
KeyWords: Florida medical marijuana center regulations and legislation, Florida medical marijuana treatment center representation, medical marijuana regulation attorney, medical marijuana lawyer, legal representation for medical marijuana issues, Florida health care business application attorney, health law defense attorney, health lawyers for marijuana distributors in Florida and Colorado, legal counsel for marijuana growers and distributors in Florida and Colorado, Florida health facility legal representation, Florida health facility defense attorney, health facility defense lawyer in Florida and Colorado, The Health Law Firm reviews, reviews of The Health Law Firm Attorneys, Florida and Colorado administrative hearing defense legal representation, administrative hearing defense attorney in Colorado and Florida, administrative hearing defense lawyer in Florida and Colorado, Florida and Colorado medical administrative regulation attorney, formal administrative hearing defense attorney in Colorado and Florida
“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.
Florida Prosecutors Want Telehealth Suspect to Remain in Jail For $424 Million Fraud Scheme
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 19, 2020, federal prosecutors in New Jersey federal court pushed to keep a suspect involved in a $424 million telemedicine scheme in jail. Authorities called him an “unrepentant conman” who carried out one of the largest health care fraud schemes in U.S. history and is likely to flee the country if released.
Telehealth Fraud & Illegal Kickback Scheme.
The defendant, who owns telehealth companies, has been locked up for nearly 11 months since he was charged last year with running an international fraud and kickback scam. He allegedly paid doctors to order unnecessary orthotic braces for Medicare beneficiaries and solicited bribes and kickbacks from brace suppliers in exchange for patient referrals.
Prosecutors say he went to great lengths to hide his scheme, including lying to obtain legal opinion letters bolstering his claim that he ran legitimate companies that profited from patient subscription fees. In reality, he was concealing the fact that most of those payments were kickbacks from brace suppliers.
Is He a Flight Risk?
In an opposition brief, prosecutors said that there aren’t any suitable bail conditions for the suspect, given his risk of flight and the danger he poses to the community. According to the government, he has a long history of deception and scheming involving foreign businesses, residences, and assets, including a $1 million yacht. Additionally, he claimed to control several foreign bank accounts and once told a cooperating witness that if the government started investigating him, he would flee to Venezuela.
The defendant argued that he’s not a flight risk because he has no criminal history and has close ties to his South Florida community.
Florida’s Involved in a Major Fraud Case, Shocker!
Another scenario that seems to be right out of a Carl Hiaasen or Tim Dorsey novel. Why does Florida continue to attract and protect the assets fo fraudsters, conmen, and deadbeats? Does it go back to our history of being the wintering ground for carnies and traveling circuses?
In 2019, the defendant was charged along with 23 other individuals in a crackdown on telehealth fraud schemes in New Jersey, Pennsylvania, South Carolina Texas, Florida, and California, involving over $1.2 billion in losses.
Given his close community ties and its reputation, it comes as no surprise that getting doctors to sign off on fraudulent prescriptions was a part allegedly played by telehealth company owners in Florida. Click here to view the indictment.
For years, Florida has been the home to health care fraudsters and ranked number one in terms of fraud cases. So, it’s not shocking that three Florida telehealth executives were also charged in what appears to be the biggest case in the takedown.
Click here to learn more about this case.
Therefore, to prevent flight and protect the public, prosecutors requested that the Court deny the
defendant’s motion to revoke the detention order and keep him detained. Click here to read the opposition brief.
To read about a similar telehealth case in Florida, click here to read my prior blog.
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, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions.
The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 or visit our website at www.TheHealthLawFirm.com.
Sources:
Bishop, Stweart. “Feds Push To Keep Telehealth Fraud Suspect Locked Up.” Law360. (March 19, 2020). Web.
Godoy, Jody. “Execs, MDs Charged In $1.2B Medicare Fraud Scheme.” Law360. (April 9, 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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.
KeyWords: Registered agent for telehealth provider, telehealth provider investigation defense lawyer attorney, telemedicine representation, Florida telemedicine defense lawyer, telehealth expansion, representation for telehealth investigations, representation for telemedicine investigations, Florida Department of Health (DOH) representation, DOH defense lawyer, representation for DOH investigations, representation for Agency for Health Care Administration (AHCA) investigations, AHCA defense lawyer, AHCA investigation attorney, health care defense attorney, health care compliance defense lawyer, Florida health care attorney, representation for health care professionals, defense lawyer for health care providers, doctor lawyer, reviews of The Health Law Firm, The Health Law Firm attorney reviews, Medicare audit defense attorney, Medicare inspection defense lawyer, Medicare subpoena defense lawyer, Medicare search warrant defense attorney, legal representation on Medicare fraud investigation, legal representation for Medicare fraud inspection, Medicare overpayment demand defense attorney, Department of Justice Health and Human Services subpoena defense attorney, legal representation for Department of Justice (DOJ) Health and Human Services subpoena, RAC audit defense attorney, ZPIC audit defense lawyer, Medicare fraud defense attorney, health care subpoena defense attorney
The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., a Florida professional service corporation, since 1999, and is also a registered service mark.
Copyright © 2020 The Health Law Firm. All rights reserved
Healthcare Workers: Is Exposure to COVID-19 Causing Illness, Disability, or Death, Covered Under Workers’ Comp?
By Amanda I. Forbes, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.” (Reference: World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)
Click here to view the classification by the WHO on our website.
Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment. For example, Section 440.151(2), Florida Statutes, states:
Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.
Section 440.151(2), Florida Statutes, (emphasis added). Many other states have similar requirements to those of Florida.
Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus. Therefore, as COVID-19 meets the criteria as an “occupational disease.”
Moreover, Section 440.151(1)(a), Florida Statutes, states:
Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.
Section 440.151(1)(a), Florida Statutes.
It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.): The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.
In addition, per Section 440.151(1)(c), Florida Statutes states:
Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.
Section 440.151(1)(c), Florida Statutes, (emphasis added).
With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:
If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.
Section 440.09(3), Florida Statutes (emphasis added).
Workers Compensation Benefits for Healthcare Professionals.
As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.
By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician (EMT). Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.” Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.
Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.
We want to emphasize that this is merely our preliminary opinion based on limited analysis and research. It is provided for informational purposes only. It does not constitute the provision of legal advice. Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.
For more information and more examples of employment compensation benefit cases for health care professionals, click 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, Durable Medical Equipment suppliers, medical students and interns, 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 student professors and clinical staff. We represent 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, in 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 Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. 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.
“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.
Question: Is Exposure to COVID-19 For Nurses and Other Healthcare Workers, Causing Illness, Disability, or Death, Considered an Employment-Related Injury Under Workers’ Comp Coverage?
By Amanda I. Forbes, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.” (Reference: World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)
Click here to view the classification by the WHO on our website.
Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment. For example, Section 440.151(2), Florida Statutes, states:
Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.
Section 440.151(2), Florida Statutes, (emphasis added). Many other states have similar requirements to those of Florida.
Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus. Therefore, as COVID-19 meets the criteria as an “occupational disease.”
Moreover, Section 440.151(1)(a), Florida Statutes, states:
Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.
Section 440.151(1)(a), Florida Statutes.
It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.): The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.
In addition, per Section 440.151(1)(c), Florida Statutes states:
Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.
Section 440.151(1)(c), Florida Statutes, (emphasis added).
With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:
If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.
Section 440.09(3), Florida Statutes (emphasis added).
Workers Compensation Benefits for Healthcare Professionals.
As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.
By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician (EMT). Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.” Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.
Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.
We want to emphasize that this is merely our preliminary opinion based on limited analysis and research. It is provided for informational purposes only. It does not constitute the provision of legal advice. Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.
For more information and more examples of employment compensation benefit cases for health care professionals, click 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, Durable Medical Equipment suppliers, medical students and interns, 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 student professors and clinical staff. We represent 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, in 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 Authors: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. 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.
“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.
Will a Death from COVID-19 be Considered “Accidental Death” for Life Insurance Policies or a Death from “Accidental Causes?”
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Almost all life insurance policies, including term policies, pay a “double indemnity,” that is, double the limits of coverage if a death occurs from “accidental causes” as opposed to “natural causes.” A question arises, given the COVID-19 pandemic, of whether a death caused by the novel corona versus would be considered a natural death or an accidental death. Fortunately, there is some guidance on this issue.
One reason it is important to distinguish between “accidental death” and “natural death” is that:
There is no pandemic exclusion for life insurance. General life insurance covers pandemics, assuming you were truthful about your travel plans and exposure to illness during the application process. . . . . An accidental death & dismemberment policy is more limited and covers deaths only when they’re accidental. It generally doesn’t [usually] cover deaths caused by illness and disease.
Nat’l Ass’n of Ins. Comm’rs, COVID-19 & Ins. (2020), https://content.naic.org/sites/default/files/inline-files/Insurance%20Brief%20-%20Covid-19%20and%20Insurance.pdf. (Emphasis added).
Definition of “Accidental Death”
According to Black’s Law Dictionary, an “accidental death” is defined as: “A death that results from an unusual event, one that was not voluntary, intended, expected, or foreseeable.” Accidental Death, Black’s Law Dictionary (4th pocket ed. 2011). Likewise, Ballentine’s Law Dictionary states than an “accidental death” is:
One that occurs unforeseen, undesigned, and unexpected. 29 Am J Rev ed Ins § 1166. One which occurs by accident, that is, was not designed or anticipated, albeit it may occur in consequence of a voluntary act.
Accidental Death, Ballentine’s Law Dictionary (3rd ed. 1969).
Under the above two definitions, definitions that are usually considered to come from the common law, death from the COVID-19 virus would be considered to be an “accidental death.”
Look to State Insurance Laws for Definitions.
One should also immediately look at the state’s insurance statutes to see if their state’s law defines “accidental death” in terms of insurance coverage. As an example, Florida law provides such definitions in Chapter 627 of Florida Statues which deals with insurance contracts.
Section 627.429(5)(c), Florida Statutes, is of particular note. Regarding death from HIV, for example, it states:
Except for preexisting conditions specifically applying to sickness or medical condition of the insured, benefits under a life insurance policy shall not be denied or limited based on the fact that the insured’s death was caused, directly or indirectly, by exposure to the HIV infection or a specific sickness or medical condition derived from such infection. This paragraph does not prohibit the issuance of accidental death only or specified disease policies.
Section 627.429(5)(c), Florida Statutes (emphasis added).
This is significant because the Human Immunodeficiency Virus (HIV) is a very slow-acting disease that harms one’s immune system by destroying the white blood cells that fight infection. Death may not occur for years, even decades from an infection. Whereas, COVID-19 is a fast-acting respiratory virus. If death from HIV could be considered an “accidental death,” than death from COVID-19 certainly could be classified as “accidental death,” as well.
Legal Arguments for “Accidental Death”
If you have a death in your family and there is life insurance coverage on that person, you should not accept the insurance company’s determination that the death is from “natural causes” as opposed to “accidental death.” Challenge this decision, in court, if necessary.
A death caused by the COVID-19 virus is clearly “from an unusual event.” I doubt that anyone would even contest this issue. It is also clearly “one that was not voluntary, intended, [or] expected.” Again, the novel coronavirus pandemic has taken the world by surprise. How can anyone in their right mind argue that it was truly “expected.” “Foreseeable” would be an objective test as to whether this was something “reasonably foreseeable.” It does not appear, from the shock and unreadiness displayed by state and national governments and health officials, that this event was truly reasonably foreseeable.
I did not foresee it, did you? If 99.999% of the populace did not foresee it, how can it be argued that it is reasonably foreseeable? At the very least, this is a jury question and the foregoing should be argued to the jury. If the average reasonable man (the man who is a legal fiction) did not foresee this pandemic and the deaths that result, how can it not be an “accidental death”? It seems that any jury would be hard-pressed to find other than an “accidental death.”
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, Durable Medical Equipment suppliers, medical students and interns, 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 student professors and clinical staff. We represent 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, in 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: 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.
“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.
Dermatologist in Florida Agrees to Pay $1.74 Million To Settle Medicaid FCA Suit
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 13, 2020, a Florida dermatologist and cosmetic surgeon agreed to pay $1.74 million to resolve allegations that he violated the False Claims Act (FCA). United States Attorney Maria Chapa Lopez announced that Dr. Thi Thien Nguyen Tran and Village Dermatology and Cosmetic Surgery, L.L.C. agreed to settle the case involving allegedly inflated Medicare claims. The settlement concludes the qui tam (whistleblowers) civil lawsuit originally filed in the United States District Court for the Middle District of Florida.
Inflated Claims to Medicare Claimed in Suit.
According to the settlement agreement, from 2011 through 2016, Dr. Tran and Village Dermatology billed for 14,000 tissue transfers, which should have been billed as lower-level wound repairs. These submissions allegedly resulted in inflated claims that Medicare paid at rates higher than it should have paid. The exaggerated claims that were submitted to Medicare were for wound repairs related to Mohs surgery, a common, in-office procedure for dermatologists.
Qui Tam, Whistleblower Provisions.
The suit was originally filed under the qui tam, or whistleblower, provisions of the False Claims Act. This law, originally enacted during the Civil War, allows a private citizen to sue on behalf of the United States for false claims the government paid; if successful in recovering money, the whistleblower shares in the recovery. The Act also allows the United States to intervene and prosecute the action. According to the DOJ, the whistleblowers in this suit will receive over $305,000 of the proceeds from the settlement it made with Dr. Tran and Village Dermatology.
This case just shows that even physicians can and should bring such claims and be rewarded for their whistleblowing activities.
To read the press release issued by the DOJ, click here.
Read about a recent case involving FCA allegations by reading one of my prior blogs here.
False Claims Act Cases Can Often be Settled Early and Greater Penalties, Including Prison, Avoided.
This case shows that getting an experienced attorney involved early in the proceedings can lead to a monetary settlement on a case for a much lower price than if it were unnecessarily and aggressively defended. False Claims Act cases carry with them the threat of a possible criminal prosecution which can result in years in prison for a physician. They could also result in civil monetary penalties in the millions of dollars. This is because the government is allowed to pursue treble dames, plus $11,500 (adjusted for inflation), plus attorneys fee and costs, for each claim. Thus, if a physician has only 100 possibly false claims that Medicare paid for $100 each, this could result in over $1,150,300.00, plus attorney fees and costs for them. 1,000 false claims, over $11 million in possible penalties.
If the physician can retain the services of an experienced health lawyer who can negotiate down the amount sought by the government millions of dollars in penalties, legal fees and lost time from medical practice may be achieved. On the other hand, in the right case, if a physician is not guilty of any false billings, these cases can be identified early and a cohesive, organized defense planned early.
Contact Health Law Attorneys Experienced with Qui Tam, Whistleblower Cases, and False Claims Act Violations.
Attorneys with The Health Law Firm represent dermatologists and other physicians, nurse practitioners and other nurses, and health professionals who need to defend a False Claims Act case, or who desire to file a False Claims Act (whistleblower or qui tam) case. However, the attorneys of The Health Law Firm also defend physicians, medical groups, and health facilities who have been sued in False Claims Act (whistleblower or qui tam) cases or have had administrative or civil complaints filed against them to recover civil monetary penalties. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com
Sources:
Pederson, Joe. “Villages doctor agrees to pay $1.7 million to settle False Claims Act Liability after inflating Medicare claims.” Orlando Sentinel. (March 13, 2020). Web.
“Villages doctor agrees to pay $1.7 million to settle False Claims Act after inflating Medicare claims.” MSN News. (March 16, 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.
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Copyright © 2020 The Health Law Firm. All rights reserved
Insurer Braces for Possible Lawsuits Over Rejected Pandemic Business Interruption Claims
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 14, 2020, several companies announced they are considering a class action lawsuit against Hiscox Insurance over its failure to pay business interruption claims relating to the coronavirus lockdown. Hiscox, sold policies before COVID-19 hit. The policies allegedly stated that they would cover claims related to businesses being forced to shut owing to a notifiable disease. Business owners have reportedly filed claims with Hiscox and other commercial insurance companies, only to be told that their policies don’t cover the losses related to the pandemic.
It’s All in the Details.
The company’s policy wording says business interruption claims can be made if a public authority makes the business premises unusable due to “an occurrence of any human infectious or human contagion disease.”
Hiscox claims the policy’s coverage would only be triggered by “certain specific events at, or local to, the premises.” The insurer said its policies were not designed to cover the extraordinary circumstances caused by the pandemic. In a statement, the company said, “We understand that these are incredibly difficult times for businesses affected by COVID-19. At Hiscox, we strive to pay claims that are covered by the policies fairly and quickly. However, general business interruption policies across the industry, including Hiscox’s, were not designed to cover these extraordinary circumstances. Like terrorism and flood, which have government-backed insurance schemes, pandemics like coronavirus are simply too large and too systemic for private insurers to cover,” it added.
Business Interruption Insurance Specifics.
Business interruption insurance usually provides protection against the closure of business because of damage to property. Multiple “non-damage” extensions can be added to standard policies, including those for denial of access because of communicable disease. A communicable disease extension or addendum will typically cover losses arising from closure resulting from an outbreak of a virus or bacteria on-site or nearby.
Many policies’ word also includes a defined list of diseases covered under the terms of the policy, which range from the SARS virus to smallpox. Others are less specific, offering coverage for any “notifiable disease” outbreak required by law to be reported to authorities. Additionally, sometimes communicable disease policy addendums contain exclusions, which state that an outbreak must have occurred on the business premises or within a defined vicinity.
The Problem With Policies?
The difficulty is that in the majority of cases, these policies cite “direct physical loss or damage” as a requirement to be triggered. Unfortunately, a quarantine, travel ban, shelter-in-place orders, or pandemic might make it impossible for a business to keep its doors open, but unfortunately may not constitute obvious “physical damage.” So, if the wording fits, as far as the insurance company is concerned, it’s not their problem!
Hiscox denied the claims made against them and responded that the clause was designed to cover losses “solely and directly” from restrictions imposed by a public authority. It would not apply in this case because losses would have still occurred even if businesses had not been closed, because of the government-imposed lockdown.
Legal Issues For Insurance Policies.
There are several important points to remember when dealing with insurance policies and claims made to an insurer.
First, insurance is governed by state law, so interpretations and policy coverage requirements may differ from state to state. Always check your state’s insurance laws and the cases that interpret them to see if the issue is governed by them.
Second, your insurance policy is a contract between you and the insurance company. Read the contract and see what it states. If it is vague or there is a doubt after you read it, you may have a good case. See the next step below.
Third, the insurance company wrote the policy. The insurance company had complete control over the wording of the policy. It was up to the insurance company to be definite and specific in what was covered or not covered. If there is doubt in the coverage that is provided in the policy, the courts will usually interpret this against the insurance company so as to provide coverage to the insured for the loss.
Fourth, when there is a problem with an insurance claim or a denied claim, immediately retain the services of one of the many attorneys who are experienced in suing insurance companies. These attorneys usually know what they are doing and will not charge you unless they obtain a recovery for you.
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
Sources:
Croucher, Martin. “Insurers Face Legal Tests Over Rejected Pandemic Claims.” Law360. (April 17, 2020). Web.
Croucher, Martin. “Hiscox Could Face Class Action Over COVID-19 Response” Law360. (April 14, 2020). Web.
Cox, Josie. “Coronavirus has exposed Britain’s insurance industry as a shambles.” The Guardian. (March 18, 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.
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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 © 2020 The Health Law Firm. All rights reserved.
