The Health Law Firm Blog

Emotional Support Animals and Protecting Your License, Pitfalls and Tips, Part 2 of 2

By Amanda I. Forbes, J.D.; and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

This is part 2 of 2 in a blog series regarding Emotional Support Animals (ESA) support letters being prepared by counselors and therapists. There are serious pitfalls that exist for the unwary mental health professional and, in part 1, we provided a number of tips on how to avoid these. Click here to read part 1.

The ACA has identified specific potential risks to animals, clients, the public, and counselors which everyone involved in this area of practice should be familiar with.

Potential Risks to Animals:

1. Neglect or other abuse; poor mental health on the part of the client may prevent adequate animal care or may promote neglect or abuse.

2. Undue stress may occur to the animal from constant work during accompaniment, including being placed in stressful environments.

3. The animal may suffer undue stress from being handled by a person who does not have specialized training.

4. The animal may suffer an illness, undue stress, or injury from public interactions.

Possible Risks to Clients:

1. Inadequate treatment of a mental health disorder.

2. Injury or property damage from an inadequately trained or socialized animal.

3. Zoonotic infection or disease.

4. Animal allergies in the client, the client’s family, and the client’s associates.

5. Potential fraud or legal concerns if an ESA is misrepresented as a service animal.

6. Financial and emotional burdens due to potential behavior problems associated with inadequately trained and socialized companion animals.

7. Misconception that a relationship with an ESA replaces or substitutes for professional mental health care or human relationships (especially the latter).

Potential Risk to the Public:

1. Injury or emotional damage from inadequately trained animals.

2. Untrained or improperly socialized animals may be more likely to be stressed out or aggressive in public.

3. Unsocialized animals may be disruptive and interfere with normal activities such as group functions, public travel, public dining.

4. Maladaptive interactions with other animals (especially toward service animals)

5. Zoonotic infection or disease from animals.

6. Animal allergies and phobias (yes, some regular people have phobias against dogs, cats, snakes, weasels, alligators, and monkeys).

7. They may contribute to public skepticism, which hurts those with valid helper animals (e.g., someone who has a full-size alligator that she claims is her emotional support animal and takes it everywhere she goes).

8. The more unsuitable the animal, the greater the risk (i.e., exotic pet, undomesticated or wild animal).

9. When more fraudulent animals have greater public access, the more public risk is incurred.

Risks to the Counselor Who Certifies or Approves an Emotional Support Animal:

1. Liability for adverse client outcomes due to inadequate or substandard treatment.
2. Potential provider role conflicts: Forensic v. Counseling.
3. Potential liability for injury/illness caused by the animal to the client or others.
4. Potential charges of fraud if an inadequate evaluation is done to demonstrate the need for the animal, or if performed in the absence of actual supporting facts, or if performed for a fake client who is just making up everything.
5. Disciplinary action taken against your professional license by your licensing board for any of the above.
6. Ethical considerations for inadequate education about ESAs and their role in comprehensive treatment. Potential to be called to testify if the ESA is challenged or if an incident occurs.

Click here for more information.

An additional potential risk that the ACA did not address was the possibility of disciplinary action against your license by your professional board. The reasons for such an action could possibly be from a failure to establish a proper client relationship prior to writing an ESA recommendation letter. It is important to keep these potential risks in mind when determining whether to write an ESA recommendation letter.

Don’t forget to read part 1 of this blog series for more information.

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

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, social workers, and family therapists in Department of Health (DOH) investigations, FBI investigations, and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

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 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 in Health Law by The Florida Bar and is licensed in Louisiana, Florida, and the District of Columbia. He is President and Managing Partner of The Health Law Firm. 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.

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Copyright © 2020 The Health Law Firm. All rights reserved.

Certifying Emotional Support Animals and Protecting Your License, Part 1 of 2

By Amanda I. Forbes, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified in Health Law

In today’s stress-filed world if you are a mental health counselor or other professional counselor, it is likely that you will encounter a client seeking to obtain an Emotional Support Animal (ESA)
designation letter from you. Providing such a letter may cause you to face complaints, licensing, and disciplinary actions driven by hostile landlords, homeowners associations, and business establishments that do not want any sort of animals on their premises. Often cases wind up in civil litigation. The client may also try to retaliate against you, should the client be the victim of legal problems because of attempting to keep an ESA and not understanding the legal ramifications.

However, you, as an experienced, licensed mental health professional must know what to do and not to do to protect your license and your career.

This is part 1 of 2 in a blog series regarding Emotional Support Animals. Stay tuned for part two. We also intend to do a follow-up blog series on working animals and how they are legally distinguished from ESAs.

Here are some tips to keep in mind should you decide to provide an ESA recommendation letter:

1. You must develop and document a properly established therapist-client relationship with the client prior to writing a recommendation–do whatever you would normally do for any other client seeking your help who walks in the door.

2. Confirm the actual, true identity of the client to be sure you know with whom you are dealing. Request and obtain at least two different forms of photo ID, one including a driver’s license for the equivalent. Check and verify the name and address on the Internet or with directory assistance. (I have a personal rule of thumb: “If you can’t find a person on the Internet, then he is a fake and does not exist”).

3. Obtain the client’s complete mental health history and medical history, requesting and obtaining other treater’s records just as you would do for any other client/patient.

4. If the client has been referred to you by another provider, especially one in a different medical or health specialty, request a written referral documenting the need for the referral to you.

5. Adequately and thoroughly make and document any decision that an ESA will benefit the client and help in treating any mental health symptoms. Be thorough and document it.

6. Assign a code from the Diagnostic and Statistical Manual, ed. 5 (DSM-5 ), to the patient, or obtain one from the patient’s regular treating psychiatrist, psychologist, or mental health therapist.

7. The most important element involved is to show that there is an actual medical necessity for the client to have an ESA or that there will be a therapeutic benefit for the client to have the ESA. If you cannot justify and document this, then do not approve the request.

8. Evaluate the ESA, preferably by an in-person meeting or tele-health conference, and determine that it will benefit the client, be sure to document this evaluation and comment on the weight, height, aggressiveness, and character of the ESA. It is most helpful to have a form the ESA’s veterinarian will complete, sign, and return to you for confirmation of this information and, perhaps, an indication that the animal is suitable in character. Keep this in your record.

9. Thoroughly document the above in your chart on the client.

10. Have a thorough knowledge of your state’s laws and professional licensing board’s regulations concerning ESAs. You might review past disciplinary cases in which counselors have received discipline relating to ESAs in your state.

Warning About Organizations that Target Mental Health Counselors, Psychoanalysts, and Professional Counselors Who Approve Emotional Support Animals.

Those mental health counselors, social workers, professional counselors, and therapists who are involved in the certification or approval of emotional support animals and working animals should be advised that there are a number of organizations and individuals out there who seek out and target those who certify or approve such animals. These organizations and individuals see many cases of abuse and improper certifications being used. They see individuals who appear to have no real medical need for such an animal “purchasing” such certifications. They view them as a merely “privileged” individual who merely buys such certification for their pet just so that can take the pet everywhere and garner attention for themselves.

Sometimes these organizations and individuals even pretend to be a patient seeking certification of an emotional support animal or a working animal. They do often contact counselors using fake names and pretending to be fake patients to see how far the therapist will go without even having a real patient. Then they file a complaint with the therapist’s professional board in an attempt to have disciplinary action taken against their license.

Therefore, it is imperative that you follow the tips mentioned in this article.

Guidance from the American Counseling Association:

The American Counseling Association (ACA) published a position paper titled: Emotional Support Animals-Human Animal Interactions in Counseling Interest Network Position Statement.

In that position paper the ACA stated:

As Licensed Professional Counselors, the assessment of DSM-5 diagnoses for human clients is within the scope of practice; however, the added practices of animal behavior, behavior assessment or Human-Animal Interventions are (most often) not. Emotional Support Animal may, in some specific circumstances, provide benefits to humans to minimize identified symptoms often associated with a DSM 5 diagnoses; however, because of the potential risks and unanticipated outcomes, the HAIC strongly suggests that counselors abstain from writing letters for persons seeking counseling or assessments for the sole purpose of obtaining an ESA recommendation letter.

Click here to read the ACA letter in full.

However, if the counselor already has an existing treating relationship with a client and the counselor is considering writing an ESA recommendation letter, then the ASA recommends:

[T]he counselor must have a thorough knowledge of the local, state, and federal laws and policies surrounding ESAs and appropriate knowledge, skills, and attitudes with the subject of therapeutic human-animal interactions before writing such a letter.

Click here to learn more.

The ACA also cautions:

The ACA’s Code of Ethics C.2.e Consultations on Ethical Obligations includes “taking reasonable steps with other counselors, the ACA Ethics and Professional Standards Department, or related professionals when they have questions regarding their ethical obligations or professional practice.” This may include working with animal trainers, behaviorists, or veterinary behaviorists to ensure that the clinician remains within their scope of practice. Since there is no overarching licensing or accrediting body for this matter, nor are there federal or state mandates at this time, the onus is on the clinician to ensure ethical practice.

https://www.unh.edu/sites/default/files/departments/student_accessibility_services_/aca.final_version_esa14556_002.pdf. (Emphasis added).

Don’t forget to read part 2 in this blog series to learn more.

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

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, social workers, and family therapists in Department of Health (DOH) investigations, FBI investigations and other types of investigations of health professionals and providers. To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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 (850) 439-1001 or Toll-Free: (888) 331-6620, and visit our website at www.TheHealthLawFirm.com.

Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim
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Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

Dental Law, Dental Law Blog, Dentist Defense attorney, Dentistry Law, Health Law, In the News, Insurance

Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

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

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

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. 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 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 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.

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House Committee Advances Medical Marijuana Bill to Expand Research

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

On September 9, 2020, a U.S. House of Representatives committee advanced a bill to expand access to marijuana for research purposes. The House Committee on Energy and Commerce voted unanimously by voice vote in favor of HR 3797, the Medical Marijuana Research Act of 2019. The bill would: “amend the Controlled Substances Act to make marijuana accessible for use by qualified marijuana researchers for medical purposes, and for other purposes.”

HR 3797 – Medical Marijuana Research Act.

The amendment to existing federal law would allow researchers to use “marijuana products available through State-authorized marijuana programs” until there are federally-approved suppliers who can meet the demand of the federal researchers. More specifically, there will be no limit on the number of entities that could be federally approved to cultivate and distribute cannabis for research purposes. Additionally, the Secretary of Health and Human Services would be required to submit a report to Congress that includes a review of cannabis research and a note on whether cannabis should be rescheduled on the drug schedules that are used to decide what drugs are controlled substances.

The amendment also takes care of a problem in the law it amends to prevent government law enforcement officials from interfering with the sale or distribution of research marijuana.

Advancement in Cannabis Cultivation.

Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, (NORML) said in a statement that the amendments to the law advanced by the bill were “necessary and long overdue.”

“Rather than compelling scientists to access marijuana products of questionable quality manufactured by a limited number of federally licensed producers, federal regulators should allow investigators to access the cannabis and cannabis-infused products that are currently being produced in the legal marketplace by the multitude of state-sanctioned growers and retailers,” Armentano said.

George F. Indest III, President and Managing Partner of The Health Law Firm also stated: “This is a law that is necessary and long overdue.” He urged everyone to contact their U.S. Representative and Senators and ask them to vote in favor of it.

The next step for the bill is a vote on the House floor; however, it is unclear whether this will happen and when it will happen, given everything that is occurring at present.

To read HR3797 in full, click here.

EVERYONE SHOULD WRITE THEIR U.S. CONGRESSIONAL REPRESENTATIVE AND THEIR TWO SENATORS AND REQUEST THAT THEY SUPPORT THIS BILL.

Click here to go to our Marijuana Law Blog page and read my prior blog on this subject to learn more.

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 draft and complete the applications for registration, permitting, and/or licensing while complying with Florida law. We can also represent doctors, pharmacies, and pharmacists facing proceedings brought by state regulators or agencies.

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:

Reisman, Sam. “House Committee Advances Medical Marijuana Research Bill.” Law360. (September 9, 2020).

Rashidian, Nushin. “Key House Committee Advances Cannabis Research Bill.” Cannabis Newswire. (September 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 Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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How to Find the Right Attorney for Your Irregular Behavior Case Before the USMLE or ECFMG

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

If you have received a letter from the United States Medical Licensing Examination (USMLE) Secretariat or the Educational Commission for Foreign Medical Graduates (ECFMG) accusing you of “irregular behavior,” this is very serious stuff. You need an experienced lawyer to assist you. But how do you find one? This blog will provide several tips on how to locate an experienced effective attorney who will really provide the legal assistance you need.

You Don’t Need a Philadelphia Attorney to Represent You.

First, there are only a handful of attorneys in the United States who have handled more than one of these cases. Even if you find one, this does not mean he or she is really experienced and will really advocate your position before the Committee for Individualized Review (CIR) or the ad hoc committee which is appointed to hear your case. You don’t need an attorney who is actually in Philadelphia, Pennsylvania (where the USMLE and the ECFMG have offices and where such hearings are usually held), to represent you. Most of the work is actually done before the hearing.

What you do need is someone who is experienced and knows how to properly prepare you for the nerve-wracking hearing you will have. The attorneys of our firm routinely do this.

What to Look for in an Attorney Before You Select One.

1. First, make sure that the attorney you select actually has ample experience in actually appearing before the committee and representing individuals and has done this multiple times in the past. Ask how many hearings.

2. Second, Look for an attorney who is board certified by their state bar association in the legal specialty of health law. Many states now have such certifications, including Florida, Pennsylvania, and Texas. Board certification in a legal specialty is like board certification in a medical specialty. It is the mark of attaining a higher degree of expertise and excellence. An attorney who is certified in health law will understand the medical issues involved in your case, the impact this can have on your future as a physician and other aspects a criminal law attorney or civil litigation attorney will not.

3. Third, check out the background of each attorney before you hire one. Google them and review everything you can find. Check with the state licensing board or state bar association for adverse actions.

4. Ask the attorney how the attorney exactly how the attorney will prepare you for the hearing. When we prepare an individual for a hearing, we review everything from the physical layout of the hearing room, to exactly how the actual hearing will be conducted, to whom the members of the hearing committee will be. We review how to speak and answer questions effectively and the types of questions that may be asked of you. All of this helps you to be better prepared and less nervous when appearing at the hearing.

5. Ask the attorney if the attorney uses expert witnesses in these cases. In many cases, no expert witness is required. However in some cases experts such as computer technicians, forensic document examiners or handwriting experts, polygraphers (lie detector analysts), statistics experts, or other experts should be hired to provide an expert report for the committee to consider.

6. Find out if the attorney will meet with you in person a week or two prior to the hearing to help prepare you. We always do this. If you cannot come to our office in the Orlando, Florida area (which most people do), we will meet with you via Zoom, Skype, video chat, or just telephonically if necessary.

7. We recommend that you select an attorney who is not a solo practitioner. An attorney who has several attorneys in his firm in the same area of specialty will have additional back up if it is needed. If you hire an attorney who is alone by himself, illness, accidents, family emergencies, and other unforeseen events can cause you to be without legal representation at the last minute.

8. Often the cheapest attorney is not the best one for you. Remember the old saying that “you get what you pay for.” Cheaper is not always better. However, paying the most may not ensure that you get the most effective legal counsel. You must do your homework, finding out the information above.

Contact Us for an Initial Consultation on Your Irregular Behavior Case.

Contact our firm and we will be happy to discuss your irregular behavior case with you before you decide on hiring an attorney.

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

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

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

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

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“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

Florida Department of Health Claims Orchid Nursery Has No Constitutional Protection In Pot Licenses

George Indest Headshot By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On August 27, 2020, the Florida Department of Health (DOH) argued to the United States Eleventh Circuit Court of Appeals that a Florida nursery can’t claim the 14th Amendment to the U.S. Constitution protects its right to marijuana licenses. The DOH urged the appellate court to uphold the dismissal of Louis Del Favero Orchids’ suit because, it claimed, the U.S. Constitution doesn’t cover a property interest in a business that is illegal under federal law. This seems to be a rather hypocritical argument in that the counter-question could be “How can the state of Florida issue licenses for or control a business that is illegal under federal law?”

Is the Law Constitutionally Protected?

The would-be medical pot nursery operator has been fighting since 2016 to get one of the state’s few medical marijuana licenses. It has been involved in ongoing litigation in state court over Florida’s medical marijuana licensing process.

The nursery claims that the U.S. Constitution protects a property right to the licenses even if Congress has outlawed marijuana because the right itself is created by state law. In its suit, Louis Del Favero Orchids said that the property right itself originates in Florida state law, specifically, the law that legalized medical marijuana. Federal law can only determine “whether a given property interest rises to the level of a protected property interest,” the nursery argued in its brief.

According to the nursery’s brief, it sought damages and an injunction requiring the state of Florida to grant the company a hearing on its application for a medical marijuana license. You can read the nursery’s brief here.

Property Right in the “Process of” the Issuance of a Medical Marijuana License?

The Florida nursery filed its case first in federal court in June 2019. But in November 2019, the federal judge threw out the suit, deciding that the company had a property interest in the pot license under state law, but not under the 14th Amendment to the U.S. Constitution. The lower court decided that if Congress has legislated that marijuana is against the law, then it can’t be property protected by the U.S. Constitution. As a result, this decision, the nursery quickly appealed the ruling to the Eleventh Circuit.

In the brief it filed in the Court of Appeals, the Florida DOH urged the Eleventh Circuit to uphold the district court’s decision. It argued that not only is the right to a medical pot license not protected by the 14th Amendment, but there’s no property right in the process of medical marijuana licensure, the DOH told the court.

Click here to read the Florida DOH’s brief in full.

What the case does not discuss is the fact the Florida Constitution contains a provision identical to the 14th Amendment of the U.S. Constitution, in its Article 1, Section 9, which states: “Due process.—No person shall be deprived of life, liberty or property without due process of law. . . .” However, if the federal court’s decision stands, then this would be a matter solely based on Florida law and not one for the federal courts.

To learn more about their ongoing litigation in Florida involving medical marijuana issues, click here.

Click here to go to our Marijuana Law Blog page and read my prior blog on this subject to learn more.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

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:

Jones, Diana. “No Constitutional Right To Pot Licenses, Fla. Tells 11th Circ.” Law360. (August 27, 2020). Web.

Jones, Diana. “Nursery Tells 11th Circ. Pot License Constitutionally Protected.” Law360. (June 29, 2020). Web.

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Dentists, What Should You Do If You Or Your Staff Tests Positive For COVID-19 at Your Practice?

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

You or a member of your staff has a confirmed case of COVID-19. What now? Your primary concern is for the individual affected. However, as a health professional operating a professional practice, you also have a duty to your employees and to your other patients. You have to be concerned about any patients with whom your infected staff might have had contact. These steps and protocols, all from prominent government agencies, are meant to help guide you if you or someone in your practice tests positive for COVID-19.

Follow these steps below to help ensure the health and safety of others and to reduce the likelihood of additional transmissions:

• The Centers for Disease Control and Prevention (CDC) recommends that employees who were exposed to the infected staff member should be quarantined for 14 days, keep track of their symptoms, and contact their own healthcare provider if the symptoms progress.

• Your entire dental office and facility, especially the waiting areas, restrooms, and treatment areas, should receive a “deep cleaning.” These should be regularly cleaned and sanitized or sterilized as the case may be. Click here for additional information on the proper ways to do so.

• According to the CDC, the Dental Healthcare Provider (DHP) should ensure that environmental cleaning and disinfection procedures are followed consistently and correctly after each patient. However, according to the CDC, the DHP does not need to attempt to sterilize a dental operatory between each patient.

• Sterilization protocols do not vary for respiratory pathogens. According to the CDC, the dental professional should perform routine cleaning, disinfection, and sterilization protocols, and follow the recommendations for “Sterilization and Disinfection of Patient-Care Items” present in the Guidelines for Infection Control in Dental Healthcare Settings.

• The Dentists should have and implement sick leave policies for any infected staff. These should be flexible, non-punitive, and consistent with public health guidance.

• As part of routine practice, dentists should also monitor themselves for fever and symptoms consistent with COVID-19 regularly.

• The dentists should screen all staff at the beginning of their shift for fever and symptoms consistent with COVID-19. One person, such as the receptionist, might be assigned to this task. Equipment that does not require actual physical contact, such as an infrared thermometer, should be used. The dentists in the practice should be required to undergo this screening, as well.

For additional information, guidance, and resource documents on this topic, please visit our Health Law Articles and Documents page. Be sure to visit our blog page regularly to stay updated on the latest news, policies, and health law topics!

We continue to receive inquiries from healthcare practitioners requesting information regarding health law matters during this time of uncertainty. We are here for you! If you have additional questions in the COVID-19 crisis or any health law matter, please call our office at (407) 331-6620.

Additional Resources.

The following are additional resources dentists should consult on this issue:

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in the Department of Health (DOH) investigations, Department of Regulatory Affairs (DORA) investigations, Agency for Health Care Administration (AHCA) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Office of Civil Rights (OCR) HIPAA complaints and investigations, U.S. Department of Health and Human Services (HHS) subpoenas and investigations, state board of dentistry complaints and investigations and other types of investigations of health professionals and providers.

Our firm also routinely represents physicians, dentists, orthodontists, medical groups, clinics, pharmacies, home health care agencies, nursing homes and other health care providers in Department of Health (DOH), Department of Regulatory Affairs (DORA), and Agency for Health Care Administration (AHCA) inspections, audits, and recovery actions, as well as Medicare and Medicaid investigations, audits and recovery actions.

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

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About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, and Achal A. Aggarwal, M.B.A., J.D. 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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19:42 18 Aug 20

Prompt, professional and detailed legal advice! Thank you.

Deepak Goel

17:54 09 Jul 20

Thank you! The Healthy Law Firm was able to clear up a major misunderstanding between my residency program and myself.... Thank you to Attorney Aggarwal for giving us updates during major steps of my case without being asked! I hope I don't have to use them again but if I do, I'd HIGHLY RECOMMEND!read more

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Professional, responsive, and knowledgeable staff. Would definitely recommend

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21:19 30 Jun 20

I am a resident physician and had a work related problem. I contacted The Health Law Firm. They were extremely... knowledgeable and genuinely caring. I am very grateful for their help and for the assistance they provided.read more

Andrew A

20:21 03 Jun 20

The Health Law Firm played a pivotal role in changing the outcome of my career and life. They conducted themselves in a... professional, methodical, and compassionate manner throughout my case. In particular, Mr. Aaggarwal was exemplary from the very first consultation to our final meeting. He has an incredible knack for quickly processing and retaining convoluted details, allowing him to get straight to work on my case and work efficiently throughout, giving me great value for the costs. He cared deeply about my case but also cared about me as a person and recognized the challenges of coping with circumstances that involve an attorney. Mr. Indest was also highly valuable, as his years of experience showed from his deep knowledge and insights of the process. He was also passionate about this case, caring about my outcome as much as I did. Overall, I would highly recommend The Health Law Firm if you want the most comprehensive legal guidance. Even my initial consultation was invaluable in its own right.read more

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16:17 31 Oct 19

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NAVA HAJIABADI

15:54 13 Sep 19

I would not recommend this firm.

Kelly Smith

19:12 08 Sep 19

I worked with a close friend to reach out to this law firm for her case. Horrible! After initially being told that... the lawyer would "take" her case, she paid the $300 fee for a 1 hour phone consultation that lasted 30 minutes. When she picked up the phone for the consultation, the lawyer sounded very confused, and it seemed that he had not reviewed the files that she and I had sent him about her case. He was unprepared, rude, antagonistic, disrespectful, judgmental, and arrogant about an issue that he clearly was very unfamiliar with. He spoke with disdain when referencing people in the health profession. He then told us (after already taking my friend's consultation fee) that she likely did not have a case, which is still dubious considering that people have sued and won similar cases. I would not recommend this law firm at all! Find someone who respects all help professionals and who will not just take your consultation fee and run after barely reviewing your case. There are much better attorneys and law firms out there that will defend youread more

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Thanks for referral P.S. you might want to reevaluate your after hours answering service staff member. She hung up on me

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19:18 25 Apr 19

I own a plastic surgery practice as well as a direct primary care practice in Orlando. I have been on the hunt for a... firm like the Health Law Firm for a very long time, after having some poor experiences with other healthcare focused law firms in the area. Lance O. Leider is exactly the lawyer I was looking for. He is knowledgeable, efficient and concise, all traits that are extremely important when you are hiring somebody who works by the hour. He gets to the point and gets you the answers and assistance you need, when you need it. I am happy to have them in my corner and as a resource for my practices.read more

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05:05 13 May 18

I am so glad that I contacted this law firm for assistance. I had a phone consultation with Lance Leider about a... professional issue. He was extremely knowledgeable and put me at ease right away. My situation worked out very well for me and it could have been different had I never consulted this highly experienced attorney. I recommend this firm to anyone who may need advice to protect their professional license which is the most important asset we possess. Many thanks to you, Lance and your friendly and professional staff.read more

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