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The Collateral Effects of a Criminal Case on a Health Care Licensee

Criminal charges against a health care professional can have serious consequences. Learn more about the impact of a criminal charge on Florida licensed health professionals. For further information, visit our website.

What is the Effect of a Plea of Nolo Contendere for a Florida Licensed Health Professional?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), a plea of nolo contendere is treated the same as a plea of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

What Is the Effect of an Adjudication or Finding of Adjudication Withheld?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), an adjudication or finding of adjudication withheld (or “adjudication deferred” in some jurisdictions) is treated the same as a finding of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

When must a Licensed Health Professional Report Guilty Pleas (Nolo Plea or Guilty Plea) and Convictions (Adjudication Withheld or Finding of Guilty) to the Florida Department of Health?

Any guilty plea (as defined above as a nolo plea or guilty plea) or any adjudication of guilt (as defined above as adjudication withheld or finding of guilty) of any crime must be reported by the health professional to his or her professional licensing board (or the Department of Health when there is no board) within thirty (30) days of the conviction or finding. Section 456.072(1)(x), Florida Statutes.

In Florida, all health professionals licensed or regulated under Chapter 456 of Florida Statutes, are required to report to their professional board (or the Florida Department of Health if there is no professional board in their profession) any convictions or findings of guilty of criminal offenses, in any jurisdiction. Unfortunately, pursuant to Florida Statutes, a plea of nolo contendere must be reported just as a plea of guilty to an offense (a plea of not guilty does not need to be reported). A finding of guilty or a finding of adjudication withheld (also called a “withhold” or “deferred adjudication” in some jurisdictions) must also be reported (a finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

Licensed practitioners who also are required to have a profile with the Department of Health (e.g., physicians licensed under Chapters 458, 459, 460 or 461), must submit an update to their profile, including criminal convictions, within fifteen (15) days of the “final activity that renders such information a fact.” Section 456.042, Florida Statutes.

For example, a doctor of medicine (M.D.), licensed pursuant to chapter 458, Florida Statutes, must submit an update to the physician’s profile within fifteen (15) days. A registered respiratory therapist, on the other hand, doesn’t have a profile. The registered respiratory therapist would have to report a matter qualifying with the above within thirty (30) days to his or her board, the Board of Respiratory Care. (A finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

As with any such important legal matter, we recommend reporting in a typed, professional letter, via a reliable method of delivery which provides tracking and delivers you a receipt. We do not consider e-mail to be reliable or susceptible of verification or tracking. We usually recommend reporting such matters via U.S. Express Mail, with a return receipt requested. Be sure to keep copies of the correspondence, the receipt of mailing and the return receipt, to document reporting and delivery dates, and to prove receipt.

Always consult the latest versions of the Florida Statutes and the Rules of the Department of Health and your professional board to make sure you have the correct information. We recommend retaining a health attorney familiar with the Department of Health and its regulatory processes, as such a report will usually require the Department of Health to commence an investigation of the health professional, even if the health professional is located in another state.

Which Crimes May Result in an Automatic Bar to Licensure?

Senate Bill 1984, effective July 1, 2009, amended various section of Florida Statutes, including sections of Chapter 456. These amendments prohibit the Department of Health from granting a new license to or granting the renewal of a license to a health professional because of a guilty plea or conviction of certain offenses. This is also grounds for revocation of the health professional’s license.

Generally, as set forth in Section 456.0635(2)(a), Florida Statutes these are:

Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a felony under:

Chapter 409 (the Medicaid Program)
Chapter 817 (Fraud)
Chapter 893 (Drugs)
21 U.S.C. Sects. 801-970 (Food and Drugs); or
42 U.S.C. Sects. 1395-1396 (Medicare, Medicaid, and Social Security)

unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application. (Sect. 456.0635(2)(a), Fla. Stat.)

Additionally, grounds for discipline against the existing license of health professional includes:

Any misdemeanor or felony relating to Medicaid fraud: “Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. Sect. 669, Sects. 285-287, Sect. 371, Sect. 1001, Sect. 1035, Sect. 1341, Sect. 1343, Sect. 1347, Sect. 1349, or Sect. 1518, or 42 U.S.C. Sects. 1320a-7b, relating to the Medicaid program.” (Sect. 456.072(1)(ii), Fla. Stat.
Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud. (Sect. 456.072(1)(ll), Fla. Stat.

Defense Strategies and Avoidances

Plead to some offense or offenses other than the ones listed above.
Avoid a felony conviction; misdemeanors do not prohibit licensure or renewal, but may result in disciplinary action.
Avoid any offenses that sound like “health fraud,” “Medicaid fraud” or “Medicare fraud.”
Violations of other states’ laws don’t count; just Florida’s and federal listed above (caveat).
Attempt to obtain pre-trial diversion, pre-trial intervention or drug court.
Attempt to avoid having to enter a guilty plea or nolo plea.
Attempt to include in settlement agreement/plea bargain agreement/stipulation that client may apply to have record sealed immediately upon completion of requirements and State will not object.
Advise client to immediately apply for sealing of record when all requirements of probation are met.
Obtain input from a board certified health lawyer or other “expert” as to the disproportionate effect (all of the collateral consequences) that a “conviction” may have on the licensed health professional.

What Are the Collateral Effects of “Conviction” of above Offenses?

A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until entire licensure case is complete.
Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.
Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic. This will usually be physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), podiatrists, clinical psychologists and clinical pharmacists.
Mandatory report to the National Practitioner Data Base (NPDB) (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.
Must be reported to and included in the DOH profile that is available to the public online (for those having one), and remains for at least ten years.
Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).
The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
If the above occurs, the provider is also automatically “debarred” or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration’s (GSA’s) debarment list.
The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.
The certified health professional’s certify organization will act to revoke his or her certification.
Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.
Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.
Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.

The Health Law Firm2011-10-24T16:05:53-04:00June 1st, 2018|Categories: Health Care Industry, The Health Law Firm Blog|Tags: attorney, criminal charges, florida, health care, medical license, nursing license|1 Comment

Trial Court Must Hold Evidentiary Hearing to Determine Disputed Facts in Public Records Act Suit

Edited by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law

An interesting summary of a Florida appellate case from Florida’s First District Court of Appeal recently came across my desk. Florida has a very broad Public Records Act and Sunshine Act. We are often involved in suing state agencies for force disclosure of documents and information.

The following is from a summary that was originally published in the newsletter of the Florida Bar’s Administrative Law Section.

Clay Cnty. Ed. Ass’n u. Clay Cnty. Sch. Bd., 144 So. 3d 708 (Fla. 1st DCA 2014).

After requesting various public records related to the Clay County School Board’s operation, and receiving only some of the responsive documents, the Clay County Education Association (CCEA) filed a petition for a writ of mandamus with the circuit court to compel production of the records. In unsworn defenses to the complaint, the school board stated that it had already produced the documents, did not have the information in the requested format, or that the requested documents did not exist. The circuit court granted the school board’s motion to dismiss the complaint, and the CCEA appealed.

The First District Court of Appeal reversed, finding that CCEA’s petition for writ of mandamus was legally sufficient. The complaint alleged a violation of a clear legal right and breach of an indisputable legal duty, thereby showing a prima facie basis for relief.

The appellate court also concluded that the circuit court erred by failing to hold an evidentiary hearing to resolve disputed issues of fact, which CCEA requested. The school board’s defenses likewise created issues of fact that should have been grounds for a priority bearing under section 119.01, Florida Statutes.

Additional Comments.

This case is important for several reasons. It took place in the First District Court of Appeal. Since most Florida agencies are located in Tallahassee, most Public Records Act cases are filed there. Additionally this shows that the Florida Appellate Courts will require trial courts to actually have evidentiary hearings and trials when there are facts in contention between the parties, which is good for citizens.

Contact The Health Law Firm Attorneys Experienced in Administrative Law.

The attorneys of The Health Law Firm represent clients in administrative and civil litigation (both state and federal) throughout the state and in other states as permitted by their rules. We also represent clients in cases involving the Florida Public Records Act, the Sunshine Act, the Federal Freedom of Information Act (FOIA) and the Privacy Act. Our attorneys are available to provide emergency hearing coverage, administrative hearing representation, emergency board representation (Board of Medicine, Board of Dentistry, Board of Nursing, Board of Osteopathic Medicine, Board of Pharmacy, Board of Psychology, Board of Licensed Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling and other professional boards), as well as the Agency for Health Care Administration, emergency deposition coverage and other litigation coverage on short notice. Should you need local counsel or just coverage for a hearing or deposition, we are available; contact us.

Source: The original case summary discussed above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of the Florida Bar.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

The Health Law Firm2015-02-13T09:00:42-05:00June 1st, 2018|Categories: Administrative law, The Health Law Firm Blog|Tags: Administrative Hearing, administrative law, appellate case, attorney, complex litigation, defense, evidentiary hearing, First District Court of Appeal, FOIA, Freedom of Information Act, health care litigation, health law, lawyer, Privacy Act, production of records, public records act, Sunshine Act, writ of mandamus|0 Comments

Responding to a Medicare Audit – Practice Tips

Although you may speak of a “routine” Medicare audit, there is really no such creature. This is like saying you have a “routine IRS audit.” The fact is that there is some item you have claimed as a Medicare provider or the amount of claims Medicare has paid in a certain category that has caused you or your practice to be audited.

Having too many claims for level five CPT codes might, for example, cause you to be audited. Having multiple claims submitted for the same date of service, may cause you to be audited. Submitting claims for CPT codes outside of your medical speciality area, might cause you to be audited. Having the dollar amount of claims greater than the average for a similar health practitioner in the same geographical area of the country, may cause you to get audited. Having a greater number of claims submitted than the average for a similar health practitioner in the same geographical area of the country, may cause you to get audited. Filing claims for services that are on the Office of Inspector General’s (OIG) annual work list may cause you to be audited.

“Routine” audits, those that do not involve some suspicion of false billings or fraudulent activities, should, nevertheless, be treated extremely seriously and the physician, group or health provider being audited should give the matter personal attention. Examples of some contractors that may be involved in “routine” audits include DelMarva Foundation, Palmetto GBA, Cigna GBA, or First Coast Service Options, Inc.

However, if the audit letter or audit notice is from a Zone Program Integrity Contractor (ZPIC), such as SafeGuard Services, LLC, or AdvanceMed, the matter is very serious and should not be treated as a routine audit. If the “audit” comes in the form of a subpoena, then it is extremely serious. If any FBI agent or OIG special agent is involved in it, then it is extremely serious. In any of these three cases, an experienced health attorney should be retained immediately.

Even on a “routine” audit, given the possible consequences, we recommend you immediately retain the services of an experienced health attorney to guide you through the audit process, to communicate with the auditors, and to be prepared if it is necessary to challenge the audit findings.

These are some of the items actions we recommend you take and which we take in representing a physician or other health provider in responding to a Medicare audit.

1. All correspondence from Medicare, or the Medicare contractor, should be taken seriously. Avoid the temptation to consider the request from Medicare, or the Medicare contractor, just another medical records request. Avoid the temptation to delegate this as a routine matter to an administrative employee.

2. Read the audit letter carefully and provide all the information requested in the letter. In addition to medical records, auditors often ask for invoices and purchase orders for the drugs and medical supplies dispensed to patients for which Medicare reimbursed you.

3. Include a copy of the complete record and not just those from the dates of service requested in the audit letter. Include any diagnostic tests and other documents from the chart that support the services provided. Many practices document the medications and immunizations given to the patient in a separate part of the chart and not in the progress notes; all documents, the complete record, should be provided to the auditor. Remember that even other physicians records obtained as history, including reports, consultants and records from other physicians or hospitals, should also be included. Consent forms, medical history questionnaires, histories, physicals, other physicians’ orders, all may be a crucial part of the record and should be included. If hospital or nursing home discharge orders or other orders referred the patient to you, obtain these to provide to the auditors.

4. Make sure all the medical records are legible and legibly copied. If the record is not legible, have the illegible record transcribed and include the transcription along with the hand-written or illegible records. Make sure than any such transcriptions are clearly marked as a transcription with the current date it is actually transcribed. Label it accurately. Do not allow any room for there to be any confusion that the newly transcribed part was part of the original record.

5. If your practice involves taking or interpreting x-rays or other diagnostic studies, include these studies. They are part of the patient’s record. If the x-rays are digital, they can be submitted on a compact disc (CD).

6. Never alter the medical records after a notice of an audit. However, if there are consults, orders, test reports, prescriptions, etc., that have not been filed into the chart, yet, have these filed into it, as you normally would, so that the record is complete. Altering a medical record can be the basis for a fraud claim including criminal penalties.

7. Make sure each page of the record is copied correctly and completely. If the copy of the record has missing information because it was cut off, the original needs to be recopied to ensure it includes all the information. Don’t submit copies that have edges cut off, have bottom margins cut off, are copied slanted on the page, or for which the reverse side is not copied. Reduce the copied image to 96% if necessary to prevent edges and margins from being cut off.

8. Make color copies of medical records when the original record includes different colored ink of significance. Colors other than blue and black rarely copy well and may be illegible on standard photocopiers.

9. Include a brief summary of the care provided to the patient with each record. The summary is not a substitute for the medical records, but will assist an auditor that may not be experienced in a particular specialty or practice area. Make sure that any such summaries are clearly marked as summaries with the current date they are actually prepared. Label it accurately. Do not allow any room for there to be any confusion that this new portion was part of the original record.

10. Include an explanatory note and any supporting medical literature, clinical practice guidelines, local coverage determinations (LCDs), medical/dental journal articles, or other documents to support any unusual procedures or billings, or to explain missing record entries. See item 9 immediately above.

11. When receiving a notice of a Medicare audit, time is of the essence. Be sure to calendar the date that the records need to be in to the auditor and have the records there by that date. Note: the due date is not the last date on which you can mail the records but rather is the date that the records must be at the auditor’s office.

12. Any telephone communication with the auditor should be followed up with a letter confirming the telephone conference.

13. Send all communications to the auditor by certified mail (or express mail), return receipt requested so you have proof of delivery.

14. Properly each copy of each medical record you provide and page number everything you provide the auditors, by hand, if necessary. Medical record copies often get shuffled or portions lost or damaged during copying, storage, scanning or transmission.

15. Keep complete, legible copies of all correspondence and every document you provide. When we provide records to a Medicare auditor, we make a complete copy for the auditor, for the client, for us (legal counsel) and two for your future expert witnesses (to challenge any audit results) to use.

16. Consult an experienced health law attorney early in the audit process to assist in preparing the response.

The above check list is by no means comprehensive. Nor do we mean to suggest that you should respond on your own. The above is illustrative of the many actions that should be taken to help protect your interests when you are subjected to a Medicare audit.

Visit our website at www.TheHealthLawFirm.com for more information on Medicare audits, ZPIC audits, health care subpoenas, Medicare and Medicaid search warrants and Medicare and other federal administrative hearings.

The Health Law Firm2011-10-24T16:42:37-04:00June 1st, 2018|Categories: Health Care Industry, In the Know, Medicare, The Health Law Firm Blog|Tags: attorney, florida, health law, medical, medicare, medicare audit|0 Comments

Guilty Plea to Research Misconduct Results in 4 1/2 Year Prison Sentence

By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Dong-Pyou Han, a former Iowa State University scientist was sentenced to four-and-a-half (4 ½) years in prison on Wednesday July 1, 2015, for falsifying his research results concerning the effectiveness of an experimental HIV vaccine. A plea agreement also required Han to pay $7.2 million in restitution to the National Institutes of Health (NIH), which funded the research. Han was testing the experimental HIV vaccine on rabbits. He spiked the rabbit blood with human antibodies to make it falsely appear the experimental vaccine caused the rabbits to develop antibodies to HIV.
Click here to the entire AP article.

What is Research Misconduct?

“Research misconduct” is intentional fabrication, falsification, or plagiarism during the course of clinical research. It is not honest differences of opinion or differences in the interpretation of data. In Han’s case, the test results were fabricated in order to fraudulently secure millions of dollars in grants from the NIH.

Click here to read one of our blogs on the ABCs of IRBs. For more resources, visit the Research Misconduct Website at National Institutes of Health.

Han’s Attorney Requests Probation, Not Prison.

According to an AP article, Han was represented by a federal public defender who asked the court to sentence Han to probation rather than prison. The public defender argued that Han already lost his ability to work as a scientist and would most likely be deported to his native South Korea. Instead, the judge in this case sentenced Han to four-and-a-half years (4 ½) in prison.

Prison Sentences Unusual for Research Misconduct Cases.

Research misconduct investigations do not often result in prison sentences. Most often, the sanction imposed on a scientist found to have committed research misconduct is a requirement to retract published articles, research or reports, and the loss of their research positions. When NIH funding is involved, a prohibition on conducting any future NIH-funded research for a period of time is also often imposed. A finding of research misconduct usually ends the research career of a scientist or physician. However, when the fraud is blatant or when it involves a large amount of grant money, criminal prosecution may follow.

Contact Health Law Attorneys Experienced with Research Misconduct.

The attorneys of The Health Law Firm provide legal representation to doctors and other scientists involved in research in addition to representing healthcare providers in numerous other matters.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever heard of research misconduct? Do you think the scientist received a fair punishment for his research misconduct? Please leave any thoughtful comments below.

Sources:

Pitt, David. “Ex-Iowa State Scientist Gets Prison for Faking HIV Research” Associated Press. (July 1, 2015). From:

http://abcnews.go.com/Technology/wireStory/iowa-state-scientist-prison-faking-aids-research-32161935

About the Authors: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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.

KeyWords: research misconduct, attorney, research fraud defense, misconduct in science, clinical investigation fraud defense attorney, National Institutes for Health, NIH, fraud defense lawyer, medical investigation, clinical research fraud, clinical trials, grant fraud, institutional review board investigation, IRB, misconduct in science committee, MISC, defense counsel, data falsification, researcher’s attorney

Nurses: Insuring Your Legal Protection

Though many nurses pursue a career in nursing hoping that they will never face disciplinary charges, any number of events not in a nurse’s control can lead to an investigation or administrative action. Nurses need to make sure they are covered if this ever occurs, with appropriate insurance.

The primary reason that a nurse should purchase a professional liability insurance policy is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a nurse.

License defense coverage pays the legal fees and costs associated with defending a nurse when an investigation is initiated that may result in action against her nursing license or disciplinary action against the nurse. Coverage is usually available from the time the nurse receives written notice that an investigation by a state agency has been initiated. It will also cover formal complaints made against the nurse, informal hearings before the Board of Nursing, and formal administrative hearings before an administrative law judge.

Such investigations, complaints, and administrative action may be opened based on events including patient complaints, hotline calls, Code 15 reports, nursing home and home health agency surveys, abuse investigations by the Department of Children and Families (DCF), newspaper articles, copies of lawsuits, and many other sources. It is far more likely that a nurse will be involved in one of these types of actions than being sued for nursing negligence.

Professional liability policies, which provide coverage for licensure defense, will usually provide compensation to the nurse for her out-of-pocket expenses (travel, postage, etc.) that she herself incurs, as well as lost wages because of working time missed for hearings, depositions, etc. However, the maximum coverage available under such policies for licensure defense is usually limited. to between $10,000 and $15,000. This amount will usually be sufficient to provide for most of the legal fees and costs involved in defense of such a case.

Does Vicarious Liability Actually Absolve the Nurse From Liability?

The assumption that vicarious liability or the legal doctrine of respondeat superior protects a nurse against a medical negligence claim is a mistaken one. If the employer provides legal representation, the attorney representing the nurse will almost always be the same attorney representing and being paid by the hospital or employer.

In many circumstances, the nurse may conclude that her interests are contrary to those of the hospital or employer, which could result in the attorney hired by the hospital withdrawing from further representation of the nurse. Additionally, it may be necessary for the nurse to raise evidence showing that the injury was caused by another nurse or hospital employee, in order to defend herself. It is doubtful that an attorney representing the employer or hospital would raise this defense since it would prove liability against the employer hospital.

Many employers will not provide legal representation if the matter involves licensing or disciplinary action against the nurse. This could force the nurse to fund all the fees and costs associated with her defense. However, some larger corporations with good risk management programs will provide the nurse with legal representation for such matters.

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

As previously mentioned, a number of different proceedings may be covered by the licensure defense coverage provided in professional liability insurance. These proceedings may include an investigation by the Department of Health based on a patient complaint or Code 15 report; an abuse investigation (abuse of a child, abuse of a developmentally disabled or vulnerable person, or abuse of an elderly person) by the Department of Children and Families (DCF); allegations of nursing negligence or abuse being investigated by a state “surveyor” by the Agency for Health Care Administration (AHCA); an investigation into allegations of Medicaid over-billing or fraud; an investigation by the Agency for Health Care Administration or on the Attorney General’s State-wide Medicaid Task Force; and allegations of improper Medicare billing or fraud.

A nurse might be involved in a Medicaid fraud investigation, for example, in the case of an Advance Registered Nurse Practitioner (ARNP), Certified Registered Nurse Anesthetist (CRNA) or Certified Nurse Midwife (CNM) who has her own provider identification number and is allowed to bill as part of a group practice or independently. This might also occur, for example, in the case of a nurse working for a home health agency which receives its reimbursement for the nurse’s services from Medicare or Medicaid.

Cost of Professional Liability Coverage is Minimal

Nurses can purchase liability coverage rather inexpensively. For example, an excellent insurance policy providing coverage for nurses is available through the Nurses Service Organization (N.S.O.) for less than $100 per year. Professional liability coverage provided by this type of insurance represents a bargain at these rates.

Focusing on Protecting the Nurse’s Individual Interests

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

Important Considerations When Purchasing Liability Protection

When deciding on which professional liability insurance to purchase, the nurse should inquire as to the extent of coverage for licensing in disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the nurse in almost any type of administrative action. This might include, for example, defense of a discrimination complaint filed against the nurse with the Florida Commission on Human Relations (FCHR) or the U.S. Equal Employment Opportunity Commission and for Medicare and Medicaid complaints. Other companies limit coverage to only actions that may result in disciplinary action against the nurse’s license. The nurse should always attempt to get the broadest coverage available for disciplinary defense and licensure defense coverage.

Additionally, the nurse should inquire as to whether or not she will be allowed to select her own attorney. Many insurance companies have contracts with certain law firms to provide legal services on their cases for a reduced fee. The insurance company may require you to use one of its own contracted attorneys, or even one of its in-house attorneys which it employs directly. Given the limited number of attorneys with experience at handling nursing law issues and trying malpractice cases, the nurse should attempt to obtain coverage through a company which allows her to choose her own attorney.

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

For more information about the legal needs of nurses visit www.TheHealthLawFirm.com.

The Health Law Firm2011-10-31T17:42:54-04:00June 1st, 2018|Categories: Health Care Industry, Insurance, Nurses, The Health Law Firm Blog|Tags: attorney, crna, florida, insurance, lawyer, nurses, professional liability insurance|1 Comment

Benchmark: DEA Conduct Resulted in Dismissed Charges

In light of the DEA‘s recent focus on Florida’s prescription drug trafficking problem, we wanted to discuss a former case in which the DEA‘s actions resulted in a favorable outcome for alleged drug dealers.

According to the Daily Journal, in 2004, U.S. District Judge Florence-Marie Cooper dismissed charges against three alleged methamphetamine dealers after an attorney to one of the defendants argued that the informant improperly relied on a “subinformant” to set up drug transactions in order for DEA agents to bust suspected dealers. According to the attorney, the informant used the intermediary to protect himself and the DEA from entrapment claims. Because of this, defense attorneys could not derive from the primary witness how the drug sale was arranged.

The attorney claimed that the subinformant contacted old friends and acquaintances in low-income areas and informed them of money to be made if they could find a large amount of methamphetamine for a prospective buyer. The informant posed as the buyer. By repeatedly calling these individuals to find a source for the methamphetamine transactions, the subinformant would turn the case over to the informant right before the transaction took place.

In this case, the DEA provided evidence only of the final interactions between the informant and the defendants. The attorney wanted to show that the entrapment actually occurred earlier, when the subinformant allegedly pressured the defendants to complete the methamphetamine deal.

In laying out the subinformant scheme in his discovery motion, the attorney cited phone records between the subinformant and the defendants in his case and in two other methamphetamine cases, U.S v. Parra, 03-CR- 121, and U.S. v. Corcuera, 03-CR-24. In the three cases, the subinformant had regular and frequent contact with the defendants, but the informant had very little or no contact with the defendants before the arrests.

Cooper agreed that the informant used an underling to keep the defense from analyzing the details of the drug deal. According to Cooper, using an intermediary to do the actual work assigned to the informant, allows the DEA to protect itself from inspection and from any charges of improper conduct.

“A law enforcement agency must not be allowed to shield itself from accountability by hiring someone outside of law enforcement who is free to violate citizens’ rights.” U.S. v. Alvarez, 02-CR-355.

With a subinformant, there is no requirement to monitor their actions. The DEA doesn’t tape, keep records or provide discovery for subinformants. The DEA has a history of failing to regulate its informants, including the nationwide Andrew Chambers scandal. An internal investigation launched by the DEA in 2000 revealed that Chambers repeatedly lied under oath over a 16-year period in which he earned almost $2 million to help bust drug felons.

However, even if informants were regulated it wouldn’t prevent subinformants from negotiating the transactions that entrap individuals.

These investigative measures by the DEA are also being used in operations directed at Florida pain clinics. In an effort to rid the state of pill mills, the DEA is using every tool to bust clinics, physicians and pharmacists that might be involved in a suspicious pain clinic.

For more information about legal matters concerning pain clinics, visit www.TheHealthLawFirm.com.

The Health Law Firm2011-11-04T14:57:56-04:00June 1st, 2018|Categories: Health Care Industry, In the News, Pain Management, Pharmacy, The Health Law Firm Blog|Tags: attorney, dea, florida, informants, pain clinic, pill mills|0 Comments

Florida’s Pill Mills Still a Target

Last week, the DEA announced the results of enforcement efforts directed at Florida’s illegal prescription drug distributors.

According to the DEA, more than 100 individuals have been arrested in operations targeting pill mills in Florida, and the DEA, as well as Florida law enforcement, will continue to investigate and prosecute pain clinics, pharmacies and physicians who are contributing to Florida’s prescription drug trafficking epidemic.

Operation Pill Nation I, initiated in February 2011 in South Florida, has resulted in the arrest of 47 people, including 17 doctors and five clinic owners, and the seizure of more than $18.9 million in cash and assets. Furthermore, over 70 doctors, six pharmacy owners and five DEA Registered Controlled Substance Distributors have been stripped of their DEA registrations.

Operation Pill Nation II has resulted in enforcement actions against 22 individuals and one pharmacy allegedly involved in the illegal distribution of prescription drugs.

The DEA also announced the addition of a third Tactical Diversion Squad in Florida. Based in Orlando, this new group will be responsible for investigating prescription drug diversion in Central Florida.

According to the Orlando Sentinel, this new squad was created solely to investigate the illegal use and distribution of prescription drugs in the Orlando area. Currently, the Orlando squad is investigating doctors and pharmacies, their first case involves a Winter Park pharmacy.

Howell Branch Road’s The Medicine Shoppe is under investigation. It’s pharmacist is accused of providing more than 15,000 oxycodone pills that were illegally distributed.

Coinciding with the DEA’s announcements, was the investigation of Tampa pill mills. DEA agents, and Florida state and local law enforcement executed six search warrants and served two immediate suspension orders to a doctor and a pharmacy in Tampa. Immediate suspension orders revoke authority to dispense or prescribe controlled substances.

Earlier this year, the DEA commissioned a pill mill hotline in Florida. This 24-hour pill mill tip line and e-mail address allow the public to provide information on suspicious pain clinics. Additionally, laws targeting pill mills were passed that makes it much more difficult to dispense narcotics at a clinic. However, the DEA’s raids will continue in order to eradicate Florida’s pill mill problem.

For more information on Florida pain clinics and the laws and legal matters that impact them, visit www.TheHealthLawFirm.com.

George Indest is an attorney, board certified by the Florida Bar in Health Law, who represents health care professionals and providers, including pain management clinics and pain management physicians.

The Health Law Firm2011-11-04T16:10:45-04:00June 1st, 2018|Categories: Health Care Industry, In the News, Pain Management, Pharmacy, The Health Law Firm Blog|Tags: attorney, dea, florida, orlando, pain clinic, pill mills|0 Comments

Doctor or Nurse, Please, Please, Please: Talk to an Attorney Before You Talk to an Investigator

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. In Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators“), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Let me state this as succinctly and clearly as possible. If you are being investigated, you will not be better off making a statement. You will not be better off explaining your side of the story. The investigator is not your friend. The investigator is not on your side. All you are doing is falling for a trick and helping the government to make a case against you.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense. It may have other witnesses (who may not be around at the time of any hearing or trial). It may have a lot of physical evidence or documents. But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this. You would be surprised at how many health professionals believe that they can just talk their way out of the situation; in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. They do not have to be. They will not be the ones making the final decision against you. Theirs is the job of putting together the case against you. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting lies than a polygraph expert is. Furthermore, in most cases, you will be the very last person to be interviewed. Therefore, they will already know just about everything that can be used against you. If your statement contradicts in any way what others have told them, they will know you are the one who is lying. However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.” “I will have my lawyer contact you.” “I cannot say anything until I talk to my lawyer.” “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?” Please don’t fall for this trick, either. This is America. Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them. There is a good reason why they do this.

Far too often the health professional only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidance and avoid this type of mistake?

For more information about investigations and other legal matters, visit www.TheHealthLawFirm.com.

The Health Law Firm2011-11-11T17:21:25-05:00June 1st, 2018|Categories: Department of Health, Health Care Industry, Medicaid, Medicare, Nurses, The Health Law Firm Blog|Tags: attorney, dea, dentist, doh, fdle, investigation, investigators, license, nurse, physician, psychologist|0 Comments

Florida’s Strike Force Raids Pain Management Physicians

Florida is reported to have one of the worst prescription drug abuse problems in the country. Because of this issue, pain management physicians have been under increasing scrutiny and attack by federal and state agencies. If you are a pain management physician or you work in a pain a management clinic, you need to be aware of the measures that state and federal agencies are taking against doctors who practice pain management and the owners of pain management clinics.

A news release sent out by the Florida Department of Health (DOH) this summer discusses “inspections” of physicians’ offices across the state, allegedly to ensure compliance with Florida’s new prescription drug law (House Bill 7095). However, many of these may be more aptly termed as “raids.” These raids, under the guise of being inspections, have resulted in a massive quantity of narcotics being seized from clinics and physicians’ offices by the Strike Force. It is claimed that no search warrants are necessary as the Strike Force states it is performing an “administrative inspection.” The pain management physicians targeted by these inspections are identified based on their purchasing, prescribing and dispensing levels.

Often these “inspections” will include Department of Health Investigators, Florida Department of Law Enforcement Special Agents, local police and law enforcement agents, and Drug Enforcement Administration (DEA) Special Agents.

Our primary concern and warning to the physician or owner is to not talk to any investigators or inspectors, but call your personal attorney immediately. Have the investigator or inspector talk to your attorney. All communications should be with and through your attorney.
If you are requested to “voluntarily” relinquish (give up) your DEA registration or your medical license or other professional license, do not do this. It will not help you and it will make every aspect of your case more difficult to defend.
Do not make any statement (oral or written) or allow yourself to be interviewed.
Obtain the complete names, addresses, titles and agencies for each agent there. Obtain their business cards (which they should have).
Do not volunteer up any documents, items or information.

To read more about inspections from the document released by the Florida Department of Health click here.

If your office has been “inspected” and you need legal representation, you may call and speak to one of our health attorneys at (407) 331-6620 or (850) 439-1001.

The Health Law Firm2011-12-19T14:24:24-05:00June 1st, 2018|Categories: Department of Health, Health Care Industry, Pain Management, Pharmacy, The Health Law Firm Blog|Tags: attorney, doh, florida, inspections, pain management, physicians, raids|0 Comments

National Practitioner Data Bank (NPDB) Update

On March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act (PPACA). This legislation made many reforms to the American health care system and with it came many changes that will affect both health care providers and consumers alike. One such change brought about by this legislation was the elimination of the independent Health Integrity and Protection Data Bank (HIPDB), and its merger with the National Practitioner Data Bank (NPDB). This will not affect the purpose of the federal government’s clearing house for disciplinary and malpractice information, but will forever change how the information is disseminated.

To understand the changes, one must first know the history of the NPDB. The NPDB was established by Title IV of Public Law 99-660, of the Health Care Quality Improvement Act of 1986. Its purpose was to improve the quality of health care by encouraging State licensing boards, hospitals and other health care entities, and professional societies to identify and discipline those who engage in unprofessional behavior. The NPDB has been expanded and revised a number of times, but its greatest expansion came on January 28, 2010, when the U.S. Department of Health and Human Services issued a final rule implementing Section 1921 of the Social Security Act.

Prior to this the NPDB dealt only with licensure and malpractice reports of physicians, dentists, and health care entities. This new regulation expanded the information collected and disseminated through the NPDB to include reports on all licensure actions taken against all health care practitioners.

Like the NPDB, the HIPDB was created to improve the quality of healthcare in America. The HIPDB was formed under the Health Insurance Portability and Accounting Act of 1996 (HIPAA) and specifically focused on combating fraud and abuse in health insurance and health care delivery, and promoting quality care. The HIPDB collected reports made by federal and state licensing agencies, federal and state prosecutors, and federal and state government agencies that had excluded a practitioner, provider or supplier from their health plan.

The NPDB and the HIPDB were created to provide a resource for state licensing boards, hospitals, and other health care entities to assist them in their investigations of the qualifications of the healthcare practitioners they sought to license or hire. These two data banks served this purpose independently of each other until the passing of PPACA on March 23, 2010.

Section 6403 of PPACA requires the Secretary of Health and Human Services (HHS) to maintain a national health care fraud and abuse data collection program for reporting certain adverse actions taken against health care providers, suppliers, and practitioners, and to submit information on the actions to the NPDB. Section 6403 further requires the Secretary to establish a process to terminate the HIPDB and ensure that the information formerly collected in the HIPDB is transferred to the NPDB.

What does this mean to you? Specifically, the NPDB has now become one large, all encompassing central data bank for all reports made against all health care professionals, whether the report deals with fraud, abuse, licensure actions, or malpractice. The HIPDB has been eliminated as an independent data bank and in its place the Secretary of Health and Human Services has implemented a process in which all fraud and abuse reports will be collected and transferred to the NPDB. Additionally, all information that was previously held in the HIPDB has been transferred to the NPDB.

For more information about the National Practitioner Data Bank and how it might impact you and your practice, visit www.TheHealthLawFirm.com.

The Health Law Firm2011-12-23T14:36:48-05:00June 1st, 2018|Categories: In the News, The Health Law Firm Blog|Tags: attorney, doctor, florida, national practitioner data bank, npdb, physcian|0 Comments