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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.

By The Health Law Firm|2024-03-14T10:00:27-04:00June 1, 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|Comments Off

$24 Million Medicaid Fraud Scheme Alleged by Connecticut Attorney General

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

Connecticut’s Attorney General, George Jepsen, alleges that 28 individuals, dental practices and corporations were involved in a $24 million Medicaid fraud scheme. He filed a civil action on May 31, 2012. It is the first case the state has initiated under the Connecticut False Claims Act. The Connecticut False Claims Act gives the state the ability to seek compensation for taxpayers from those who submit false claims for reimbursements they are not eligible to receive. To view the Connecticut False Claims Act, click here.

The complaint seeks restitution, treble damages and civil penalties as well as a permanent injunction against the unlawful acts and practices alleged in the complaint. To view the complaint, click here.

Accused Individual Allegedly Found Ways to Bill Medicaid for Services, Despite Being Excluded from Medicare and Medicaid Programs.

According to the complaint, one of the individuals involved in the alleged fraud scheme was previously convicted of a felony in another state for submitting false health care claims. He was then permanently excluded by the U.S. Department of Health and Human Services (DHHS) from participation in Medicare and Medicaid, as a result of his conviction. Any entity with which he serves as an employee, administrator, operator or in any other capacity, were also excluded from state healthcare programs.

The state alleges that, despite the exclusion, he established a number of dental practices in Connecticut that were operated by practicing dentists who billed Medicaid for services.

Allegedly, the excluded individual was actively involved in managing the practices and received millions of dollars in Medicaid reimbursements. The dental providers allegedly knew of the exclusion and did not disclose it on enrollment and re-enrollment forms for the Connecticut Medical Assistance Program.

Florida Has Similar False Claims Act.

Florida has a Medicaid False Claims Act similar to the one that Connecticut has. Florida’s Medicaid False Claims Act can be found here. However, in Florida, a separate provision of the state’s Medicaid law provides an award to a whistle-blower of up to 25% of any recovery. This is in Section 409.9203, Florida Statutes. In addition, Florida has a law that allows civil recovery for criminal acts such as Medicaid fraud, which is sometimes used by the Florida Attorney General and private individuals to recover money lost as a result of certain criminal conduct. For the Florida Civil Remedies for Criminal Actions law, click here.

As a general rule state false claims acts are modeled after the federal False Claims Act used to pursue Medicare fraud. For the federal Medicare Fraud False Claims Act, 31 U.S.C. § 3729, click here.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Fraud Cases.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicaid and Medicare investigations, audits, hearings and recovery actions. In addition The Health Law Firm represents health providers in Medicare exclusion actions and in being reinstated to the Medicare Program or being removed from the exclusion list.

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

Sources:

Rees, Nick. “Jepsen alleges $24M Medicaid fraud.” Legal Newsline. (June 4, 2012). From: http://www.legalnewsline.com/news/contentview.asp?c=236342

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.

By The Health Law Firm|2024-03-14T10:00:31-04:00June 1, 2018|Categories: Medicaid, The Health Law Firm Blog|Tags: Centers for Medicare & Medicaid Services (CMS), civil recovery for criminal actions, dental practice, dental services, dentist, dentist Medicaid fraud, Department of Health and Human Services, false claims act defense, fraud prevention, legal defense, medicaid, Medicaid exclusion, Medicaid fraud, Medicaid fraud defense attorney, medical groups, medical practices, medicare, Medicare defense attorneys and lawyers, Medicare exclusion, Medicare fraud, nurse, nursing, OIG exclusion, permanent exclusion, physicians, qui tam, state healthcare programs, whistle-blower|Comments Off

Beware of These Illegal Business Arrangements in Healthcare

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

Florida does not have a corporate practice of medicine prohibition like many other states do. In other words, a physician is allowed to work as an employee or independent contractor of a corporation or other business entity owned by nonphysicians However, there are a number of exceptions to this rule.

For dentists, optometrists and chiropractors there are specific statutory prohibitions on any member of that profession practicing his or her specialty while working for a group, practice or organization that is owned or controlled by one who is not a member of that profession. These laws, a different one for each specialty, make it a felony to do so, as well as grounds for discipline against the professional’s license. It is considered to be a separate felony offense for each day.

The main exceptions for these prohibitions include, for example, working for a hospital, working for a federal health care clinic, working for a not-for-profit charity health care clinic, and other limited exceptions.

There are All Treated the Same: Revoked License, Licensed in Another State But Not in Florida and Suspended License.

We have seen cases in which a dentist or chiropractor licensed in another state, but not in Florida, owned or operated a dental or chiropractic clinic in Florida. This would be prohibited, of course.

In other cases, we have seen health professionals who have had their licenses revoked continue to own and operate or even “lease out” their practices to others. The ownership or control of the practice by one with a revoked license would also be illegal.

We have seen cases in which a spouse or child of a deceased physician has continued to own and operate a clinic after the health professional died, when he or she was not a health professional. This is illegal from the day the health professional died and there is no “grace period.”

In the Cases of Health Care Clinics and Pain Management Clinics…

In cases in which a member of the profession is allowed to work for a group, practice, clinic, corporation or other business entity that is not owned by health professionals, then that organization (again, with certain exceptions) is required to obtain a health care clinic license from the Agency for Health Care Administration (AHCA). Professionals other than dentists, chiropractors and optometrists, could work, for example, for a corporation (corp.) or limited liability company (LLC) owned by an accountant and a businessman, as long as it had a valid health care clinic license. Owning, operating or working for an unlicensed health care clinic which would be required by Florida law to be licensed, is a felony offense.

If you are a physician, nurse practitioner, other licensed health professional, you need to check the business’s licensure status with AHCA to make sure it is current and valid, before going to work there.

Additional situations include pain clinics and other types of health practices which constitute “risky” areas of practice. If you are not aware of the almost daily occurrences of physicians getting busted, pharmacists getting arrested, and pharmacies and pain clinics being searched, closed and shuttered, you’re not reading the newspapers or watching TV. Usually pain clinics are required to be licensed as health care clinics by AHCA and as pain medicine clinics by the Department of Health (DOH). However, a regular medical practice is exempt from those requirements (with certain exceptions, of course).

We have encountered situations where a good physician is recruited into a very questionable practice setting by unscrupulous nonprofessionals who are merely using him or her. Everything is placed in the physician’s name. On paper it appears the physician is running a legitimate medical practice. However, behind the scenes, the physician actually controls nothing. It is clear that the whole setup is just a shell, a phony medical practice set up to skirt the law and avoid licensure.

We have seen medical practices and dental practices where a nonprofessional business person has control of all of the billings and collections, the employees, the bank accounts and all of the records. The physician does not have control of anything, not even the practice’s bank account. We have encountered several situations where the physician does not even have passwords to his/her own computers and software or keys to his/her own office. We believe that such situations are sham operations set up to avoid statutory requirements. A physician would be well warned to stay away from such situations.

Beware of Scams to Avoid the Law.

We have seen many cases where individuals, including lawyers and business people, have attempted to get creative to come up with schemes to try to get around the laws. Often there may be a legal way to create an arrangement between licensed health professionals and unlicensed business people, to accomplish their goals, especially related to financial arrangements.

However, we have also seen many such schemes that were clearly illegal and meant to just put a facade on an obviously illegal arrangement. When the criminal authorities start to investigate the behind-the-scenes people disappear, leaving the physician to pay the price. A physician or health care provider should have any such business arrangement reviewed in detail by a board certified health lawyer before he or she gets involved with it. If you are thinking about investing in such a practice or arrangement, then we strongly recommend that you obtain an opinion letter from a board certified health lawyer as to the legality of the situation or arrangement.

Do Not Let Anyone Else Use Your Billing Number or Medicare Provider Number.

We have also been consulted on a number of occasions by physicians who were contacted by business people starting clinics allegedly seeking a “medical director” for their clinic, offering the physician a large amount of money without having to perform any real work. However, they just need to use the physician’s Medicare number to bill with for a few months until their Medicare number is approved. Such enterprises usually turn out to be Medicare billing fraud schemes. The company uses the physician’s Medicare number to bill for hundreds or thousands of physician patient visits in patient’s homes, nursing homes or assisted living facilities (ALFs) that never occur. When Medicare stops paying and starts investigating, the ones behind the scheme disappear and leave the physician holding the bag.

Avoid such schemes. Avoid any situation where someone else “needs” to use your Medicare number for services that you are not actually performing yourself. If the deal sounds too good to be true, it probably is. You will wind up paying a heavy price later on if you fall for it,

There are Many Illegal Situations Which Carry Heavy Consequences.

Many of the above situations can result in criminal prosecutions. In addition, these are also usually grounds for discipline on a health professional’s license. In many cases, all fees collected while operating illegally must be refunded. In the case where pain management is involved, the penalties are much higher than in other situations. Where Medicare and Medicaid patients or billings may be involved, the risks of criminal prosecution and very large monetary penalties are much greater.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Comments?

What do you think about this blog? Please leave any thoughtful comments below.

“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.

By The Health Law Firm|2024-03-14T10:00:38-04:00June 1, 2018|Categories: Department of Health, Medical License, Medicare, The Health Law Firm Blog|Tags: administrative action, Agency for Health Care Administration (AHCA), chiropractor, defense attorney, defense lawyer, dentist, Department of Health (DOH), DOH investigation, licensed health care clinic, licensed health professional, licensing and regulatory, licensing issues, licensure cases, medical clinic, medical license, medical practice, Medicare billing fraud, Medicare billing number, Medicare fraud defense attorney, Medicare fraud defense lawyer, Medicare provider number, nurse, opinion letter, pain management clinics, physician, practice, practicing medicine without a license|Comments Off

The Doctors Company (TDC) Attorneys, Lawyers and Defense Council in Florida

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

Often we learn after the fact that a health professional such as physicians, dentist and other health professionals has received The Doctors Company (TDC) Insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have TDC Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it.
The Health Law Firm Will Work with You and Your Insurance Company.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses, dentists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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. 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, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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

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 © 1996-2012 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T10:00:47-04:00June 1, 2018|Categories: Administrative law, Insurance, The Health Law Firm Blog|Tags: administrative law, administrative proceedings, attorney, complaint against a health care professional, complaint against a health care provider, complaint against a physician, dentist, doctor, health attorney, health care lawyer, health care professional, health care provider, health law, health law attorney, insurance, investigation of a health care professional, investigation of a health care provider, investigation of a physician, legal bills, legal defense expenses, physician, professional discipline, professional liability insurance, The Doctors Company|Comments Off

Terrible Things That Can Happen after Discipline on Your Professional License or Resignation of a License after Notice of Investigation

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

Do you have a medical, pharmacy or nursing license in several different states? Do you have a license in more than one health profession? Have you been notified that an investigation has been opened against you? Are you thinking about resigning your professional license or voluntarily relinquishing such a license? Then you must be aware of the following.

First, you should never voluntarily relinquish or resign your license after you know that an investigation has been opened or that disciplinary action has been taken against you. Such a resignation is considered to be a “disciplinary relinquishment” and is treated the same as if your license had been revoked on disciplinary grounds.

Second, this will be reported out to other states, agencies, to the National Practitioner Data Bank (NPDB), to any certifying bodies for certifications you have and to other reporting agencies (such as the National Council of State Board of Nursing, the National Association of Boards of Pharmacy or the American Board of Internal Medicine). Other states and other professional boards will most likely initiate disciplinary action based upon the first one.

Protect Your License from These Adverse Actions.

The following is a list of some of the adverse actions that you can expect to be taken against you after discipline on your license or after you resign your professional license after receiving notice of investigation:

1. A mandatory report to the National Practitioner Data Base (NPDB) which remains there for 50 years. Note: The Healthcare Integrity and Protection Data Bank or HIPDB recently merged into the NPDB.

2. Must be reported to and included in the Department of Health (DOH) profile that is available to the public online (for those having one), and remains for at least ten years.

3. Any other states or jurisdictions in which the nurse has a license will also initiate an investigation and possible disciplinary action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states and all, even ones that were inactive or not renewed years ago, initiated action).

4. The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offenses require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.

a. If this happens, you are prohibited by law from working in any position in any capacity for any individual or business, including hospitals, nursing homes, home health agencies, physicians, medical groups, insurance companies, etc., that contract with or bill Medicare or Medicaid. This means, for example, you are prohibited from working as a janitor in a nursing home that accepts Medicare or Medicaid, even as an independent contractor.

b. If this happens, you are also automatically “debarred” or prohibited from participating in any capacity in any federal contracting, and you are placed on the U.S. General Services Administration’s (GSA) debarment list. This means you are prohibited by law from working in any capacity for any government contractor or anyone who takes government funding. This applies, for example, to prevent you from being a real estate agent involved in selling property financed by a government backed loan, prohibited from working for an electrical company that bids on contracts for government housing projects, working as a school teacher in a public school, etc.

c. If this happens, your state Medicaid Program is required to terminate you “for cause” from the state Medicaid Program. In many states, this is also grounds for revocation of your license.

5. Any profile or reporting system maintained by a national organization or federation (e.g., NURSYS profile maintained by the National Council of State Boards of Nursing, American Medical Association physician profile, or the Federation of State Board of Physical Therapy profile) will include the adverse action in it, generally available to the public.

6. If you are a nurse practitioner or other professional with clinical privileges at a hospital, nursing home, HMO or clinic, action will be taken to revoke or suspend the clinical privileges and staff membership if you have such. This may be in a hospital, ambulatory surgical center, skilled nursing facility, staff model HMO or clinic. This will usually be for physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), nurse midwives or certified nurse anesthetists (CNAs), podiatrists, clinical psychologist or clinical pharmacists.

7. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional’s contract or panel membership with that organization.

8. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional’s DEA registration if he or she has one.

9. Many employers will not hire you or will terminate your employment if they discover your license has been disciplined in another state.

What Should You Do?

– Don’t take the easy way out by immediately relinquishing your license if you are notified you are under investigation.

– Don’t hide your head in the sand by thinking the case will just go away on its own.

– Don’t take the easy way out. If you are innocent of the charges, request a formal hearing and contest the charges; defend yourself.

– Do not request an informal hearing or a settlement agreement in which you admit the facts alleged against you are all true. If you do this, you are “pleading guilty.”

– Do immediately seek the advice of an attorney who has experience in such professional licensing matters and administrative hearings. They are out there, but you may have to search for one. Do this as soon as you get notice of any investigation and especially before you have talked to or made any statement (including a written one) to any investigator.

– Do purchase professional liability insurance that includes legal defense coverage for any professional license investigation against you, whether it is related to a malpractice claim or not. This insurance is cheap and will provide needed legal assistance at the time when you may be out of a job and not have money to hire an attorney. Beware of the insurance policy that only covers professional license defense if it is related to a malpractice claim.

Professional Liability Insurance.

We strongly encourage all licensed health professionals and facilities to purchase their own, independent insurance coverage. Make sure it covers professional license defense under all circumstances. Make sure you have enough coverage to actually get you through a hearing. $25,000 coverage for just professional licensure defense is the absolute minimum you should purchase; $50,000 may be adequate but $75,000 or $100,000 may be what you really need in such a situation. For a few dollars more (and I do mean only a few) you can usually purchase the higher limits.

Also, I will repeat, make sure it covers your legal defense in an administrative disciplinary proceeding against your license, even if there is no malpractice claim filed against you or likely to be filed against you.

We also recommend that you purchase coverage through an insurance company that allows you to select your own attorney and does not make you use one that the insurance company picks for you.

Companies we have encountered in the past who provide an inexpensive top quality insurance product for professional license defense costs include: CPH & Associates Insurance, Nurses Service Organization (NSO) Insurance, Healthcare Providers Organization (HPSO) Insurance and Lloyd’s of London Insurance.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, nurses, pharmacists, pharmacies, dentists, mental health counselors, massage therapists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

“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 © 1996-2012 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T10:00:49-04:00June 1, 2018|Categories: Administrative law, Health Care Industry, Licensing issues, The Health Law Firm Blog|Tags: Administrative Hearing, and Lloyd's of London Insurance, CPH & Associates Insurance, defense attorney, defense lawyer, dentist, Department of Health and Human Services (HHS), Department of Health investigation, Department of Health investigation of a health care provider, disciplinary relinquishment, discipline on a health care professional’s license, exclusion from the Medicare Program, health care attorney, health care professional, health care professional license, Healthcare Providers Organization (HPSO) Insurance, investigation of a health care professional, investigation of a health care provider, List of Excluded Individuals and Entities, massage therapist, nurse, nurse excluded from the Medicare Program, Nurses Service Organization (NSO) Insurance, Office of the Inspector General (OIG), pharmacist, pharmacy, physician, professional licensing matter, resignation of a professional license, the health law firm, voluntary relinquishment, voluntary relinquishment of a health care provider’s license|2 Comments

Board of Dentistry Considers Adding Failure to Provide Dental Records to “Citation” Offenses

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

At the Florida Board of Dentistry meeting held on November 21, 2014, it discussed a proposed change to Rule 64B5-13.0046, Florida Administrative Code. The amendment would add a provision for failing to timely produce dental records to patients. This addition should help dentists avoid receiving permanent discipline on their records for a minor technical violation.

Considered was the addition of the following language to the existing Rule, listing citation-approved offenses:

Violation of subsection 466.028(1)(n), F.S., failure to timely make available to a patient or client, or to his legal representative or to the Department, if authorized in writing by the patient, copies of documents in the possession or under control of the licensee, which relate to the patient or client. Timely means less than 30 days from the receipt of the written authorization. The subject of the citation has 10 days from the date the citation becomes a final order to release the patient records. Failure to comply will result in a $1,000.00 fine.

Citation vs. Charge.

An administrative citation such as those discussed is not considered to be discipline, but an alternative to discipline. The dentist can accept the citation and pay the fine; therefore the citation will not be recorded on his/her record as discipline. For more on this issue, read my blog on citations against physicians and other health professionals.

This is a good development for dentists as it allows the resolution of minor technical violations of statutes and rules without the very undesirable effect of creating a disciplinary record. We sometimes jokingly refer to these as “speeding tickets” since they carry a fine but are not considered to be permanent disciplinary action.

Carefully Review and Promptly Respond in Citation Cases.

Take immediately action on any proposed citation you receive from the Department of Health (DOH). Consult immediately with a health attorney who is experienced at representing dentists in Board of Dentistry matters. Click here for a previous blog on why you should speak with an attorney first.

In most cases, you will probably be advised to accept the citation and pay the fine. If so, be sure to submit the signed agreement, ending it by a method that documents sending and receipt (such as certified mail, return receipt requested), and keep a copy of all documents you submit. Make sure it is received (not sent) by the due date. Call to make sure it was received.

For additional information on citations in disciplinary cases, click here.

In Limited Circumstances, You May Not Want to Accept the Citation.

In limited circumstances, it may not be advisable to accept a citation. This may occur if there is pending litigation involving the subject of the citation. If the wrong person is named in the citation, this may be another reason for not accepting it. If you did not commit the offense and you are sure you can prove this, you may also desire to not accept the citation. This is especially true if you have dental liability insurance coverage which pays for a legal defense in such administrative disciplinary cases involving professional license defense.

For more information on dental license defense, read this previous blog.

If You Do Not Accept the Citation, Be Prepared for an Administrative Complaint.

If you do not accept the citation within the limited time given (usually 30 days), or if you send back a statement regarding why it is unfair or why you did not commit the violation, this will usually be treated as a statement disputing material facts. In this event, the case will be treated as though you were requesting a formal administrative hearing. You will be given a regular formal hearing (trial) with an administrative law judge from the Division of Administrative Hearings (DOAH). For information on hearings in dental cases, click here.

Be Sure Your Staff Knows How to Treat Record Requests.

Be sure that when your office receives a request for a patient’s dental chart that the request is promptly reviewed by someone in management. Management must make sure the authorization or subpoena is valid (remember HIPAA) and that the record is provided in a timely manner. Paying attention to such requests may allow you to detect and act on potential dental medical malpractice claims or DOH complaints. You should have a written office policy on this that every employee has signed.

Remember you are not authorized to withhold a patient’s dental record because the patient has not paid a bill. You are not authorized to withhold the chart because you are angry at the patient or the patient has threatened to sue you. Be sure to provide the patient (or his/her representative) a copy of the record within 30 days. Keep a copy of the letter transmitting the copy in the chart and annotate the HIPAA medical information disclosure form in the record.

Comments?

What do you think of a citation versus a charge in regard to promptly getting patients their dental records? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website http://www.TheHealthLawFirm.com.

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.

By The Health Law Firm|2024-03-14T10:01:10-04:00May 15, 2018|Categories: Board of Dentistry, Dental Law, Dentist Defense attorney, Dentistry Law, Dentists|Tags: administrative citation, administrative complaint, Administrative Hearing, citation, defense attorney, defense lawyer, dental board, dental lawyer, dental records, dentist, dentist attorney, department of health, disciplinary action, disciplinary record, doh, doh complaint, Florida Board of Dentistry, Florida dentist, Florida laws, formal hearing, Informal hearing, license defense, patient records, requests for patient records|Comments Off

Florida Medicaid Audits Dental Claims

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

The Agency for Health Care Administration (AHCA) is auditing Medicaid claims submitted by dental providers in Florida. AHCA is auditing dental practices looking for claims that were not billed in compliance with the Florida Medicaid Dental Services Coverage and Limitations Handbook. AHCA’s audits are focused on claims that are billed too frequently, claims that are billed on the same date of service as a redundant code, and claims that have been unbundled when they should have been billed as part of a comprehensive code.

Specific Dental Codes Being Audited.

Dental providers that are the subject of these audits may not learn of the audit until they receive the Preliminary Audit Report. It is extremely important to immediately retain experienced health care counsel if you receive a Preliminary Audit Report so that a timely rebuttal with additional documents can be submitted. The audits are performed by the AHCA based entirely on the claims submitted by the provider.

Some of the specific procedure codes included in the audits are:

– D0120,
– D0272,
– D1110,
– D1120,
– D1203,
– D1330,
– D0150,
– D0210,
– D0330,
– D4355, and
– D4341.

Take Preliminary Audit Reports Seriously.

Every dental provider that receives a Preliminary Audit Report from AHCA has a limited time to respond to the audit. AHCA may also impose sanctions and assess costs against dental providers in these audits. Any dental provider that receives notice of an audit by the Agency should contact legal counsel experienced in these matters without delay.

Click here for a previous blog on tips for responding to an AHCA audit.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry 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 AHCA investigations, 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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever received a Preliminary Audit Report from the AHCA? Did you know how to respond? Please leave any thoughtful comments below.

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

Dentists Targeted for Billing Medicaid for Dead Patients; Okay to Treat Dead Patients, You Just Can’t Bill for It

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Two South Florida dentists are at the center of a fraud investigation after, among other things, allegedly billing Medicaid for unnecessary dentures for their patients, according to the Florida Attorney General’s Office. Married couple Marino Vigna and Beth Reinstein operate Sunrise Dental Clinic in Fort Lauderdale. They have not yet been arrested or charged, however, their billing practices are reportedly under investigation. According to the South Florida Sun Sentinel, the office of Florida’s Attorney General is focusing on the clinic’s submission of Medicare claims dating back to Jan. 1, 2010.

Hundreds of Elderly Patients Affected.

Vigna and Reinstein allegedly billed Medicaid for dentures for patients who had no need for false teeth. According to investigator Alexander Perez, many of the couple’s patients were “already deceased or unable to be interviewed due to physical and/or psychological disabilities.” Other alleged patients suffered from dementia and could not recall if they had previously received any services from Dr. Vigna.

Medicaid paid a $1,198 claim for a 100-year-old woman residing in a senior care facility. Vigna billed for the extraction of 11 teeth and upper and lower dentures. When investigators interviewed the woman’s son, it was revealed that she never had any teeth extracted by Vigna and her dentures were obtained 12 years ago in another state. Another alleged patient had no need for dentures as the patient had long been restricted to a liquid diet.

Other Fun Facts (Allegations).

The clinic reportedly billed for services provided to patients while Vigna and Reinstein were vacationing out of the country. The Bureau of Immigration and Customs Enforcement (ICE) confirmed that the couple were in the Netherlands, Bahamas, Paris and Sweden, on the dates in question. Red flags were raised as clinic employees revealed to investigators that the dental office closes when Vigna goes on vacation.

Furthermore, some patients reportedly treated by the clinic were deceased at the time of their services, yet the clinic still billed Medicaid.

How Much Did the Alleged Fraud Cost Medicaid?

At this time, an estimate of the total alleged fraud cost is not available. The Sun Sentinel revealed, however, that the clinic was reportedly paid nearly $10,000 for services provided to Medicaid patients who were allegedly treated while the couple was on vacation in 2012.

To learn more about the large crackdowns on Medicaid fraud and how it may affect you, read one of our past blogs here.

To read about the oversight of the integrity of the Medicaid program click here.

Editor’s Comments.

As I’ve always said, you can treat dead people as much as you want. Just don’t try to bill Medicare or Medicaid for the treatment.

Comments?

Do you think harsher punishments are the key to counteracting Medicaid fraud? Leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and Other Legal Proceedings.
Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Health Care Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

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

Sources:

Alanez, Tonya. (Aug. 12, 2015). “Dentists target of false-teeth inquiry.” Orlando Sentinel.

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.

KeyWords: dentist, dental clinic dental practice, Medicaid, Medicaid fraud, Medicaid investigation, Medicaid claims, fraudulent claims, health care fraud, Medicaid billing, Attorney General senior health care Medicaid reimbursements health law firm The Health Law Firm

“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.

By The Health Law Firm|2024-03-14T10:01:11-04:00May 15, 2018|Categories: Dental Law Blog|Tags: dentist, medicaid|1 Comment

Florida Board of Dentistry Proposes Change to Minimum Record Keeping Requirements for Dentists

By Christopher E. Brown, J.D., The Health Law Firm

On August 22, 2014, the Florida Board of Dentistry will meet to discuss implementing new requirements for record keeping. We believe that these changes are due to the Board’s concern over potential ambiguity with the current regulations, and due to the recent difficulty it had in disciplining Florida dentists for record keeping violations.

Read on for an outline of the proposed new requirements. Be sure to check this blog regularly. We will have a firm representative at this meeting and will post any updates.

Current Florida Rule.

Rule 64B5-17.002, Florida Administrative Code, provides the minimum record keeping requirements placed on Florida’s dentists. Currently, the rule requires a dentist to record the following information:

(a) Appropriate medical history;
(b) Results of clinical examination and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases;
(c) Any radiographs used for the diagnosis or treatment of the patient;
(d) Treatment plan proposed by the dentist; and
(e) Treatment rendered to the patient.

Outline of Proposed New Requirements.

The proposed rule change will amend the Rule 64B5-17.002, Florida Administrative Code, as follows:

(a) Appropriate medical history, including any current or previous medical conditions, surgeries, hospitalizations, medications, and legible blood pressure readings (when taken). The updating and review of the medical history must also be documented.
(b) Results of clinical examinations and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases.
(c) Any radiographs to include Cone Beam Computer Tomography (CBCT), and the results used for the diagnosis or treatment of the patient.
(d) Treatment plan and treatment options proposed by the dentist.
(e) Treatment rendered to the patient, including but not limited to the following, when applicable to the treatment performed:

(i) Type, amount, and mode of delivery (i.e., Mandibular block, Infiltration, etc.) of local anesthesia used;
(ii) Type and shade of restorative material used;
(iii) Preoperative and/or postoperative medications prescribed;
(iv) Medications delivered, administered, or provided to the patient during treatment or for use following treatment;
(v) Radiographs taken;
(vi) Impression material and type of impression taken (i.e., maxillary, mandibular, interocclusal, digital, etc.);
(vii) Medicaments, medications, sutures, irrigants, or bases applied to teeth or periodontal tissues;
(viii) Names or initials of all staff involved with clinical care of the patient;
(ix) Use of dental barrier or rubber dam;
(x) Tooth or arch treated identified by name, number or letter;
(xi) Working length, canals treated, identify untreated canals and reason left untreated, master apical file size, and obturation materials used during endodontic procedures; and
(xii) Unusual or unexpected events or reactions during or after the procedure including, but not limited to separation, breakage, retention, swallowing or aspiration, of any instrument or portion thereof.

In addition to the above changes, the Board is also seeking a number of other amendments to the rule, including additional requirements for record alterations and duties of dentists of record.

The complete proposed rule change can be found at: http://bit.ly/1vr4Cxw

Comments?

Did you know about these proposed changes? If imposed, how will the changes affect you? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

About the Author: Christopher E. Brown, J.D., 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.

Dentists and Dental Hygienists Beware: Know Who Actually Owns Your Clinic

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

Florida has long been a state that does not prohibit the corporate practice of medicine, unlike many other states. However, it does prohibit the corporate practice of dentistry. The key provision in Florida law that establishes this is Section 466.028, Florida Statutes, but the Florida Board of Dentistry has adopted administrative rules on this topic as well.

What this means is that any corporation (or other type of business entity) that owns or operates a dental practice, under Florida law, must be one solely owned by and controlled by dentists. In this context, the term “dentists” means those licensed to practice dentistry in the state of Florida with an active license. Someone licensed in another state or who has a suspended or revoked license in Florida would not meet that requirement.

Dentists Entering into Certain Types of Contracts Need to Be Sure That They Comply with the Law.

There may be certain types of contracts and agreements that a dentist or dental practice may legally enter into, especially ones that would provide administrative services or other types of non-professional services to the dentist. These might include for example, payroll services, staffing services (except for professional staff such as dental technicians), billing and collection’s services (provided the dentist retains final authority over such matters), marketing services, equipment leases (provided the dentist retains all control over the equipment), office leases, management services, or combinations of the above.

However, since any of these types of agreements may be worded so as to violate the law, a dentist should always have such an agreement reviewed in advance by his or her own experienced health attorney. The dentist entering into any such contract must make sure he or she complies fully with the law.

Section 466.028(1)(kk), Florida Statutes, states that it is unlawful for any non-dentists, including any professional corporation or business entity owned and operated by non-dentists, to influence or interfere with the professional judgment of the dentists.

Therefore, any contractual agreement entered into should not prohibit the dentist from exercising his or her own professional judgment at all times in treating patients.

Acts Prohibited by Law.

Acts specifically prohibited by the law include, allowing non-dentists or a business entity owned by non-dentists to:

(1) Employ a dentist or dental hygienist in the operation of a dental office;

(2) Control the use of any dental equipment or material while such equipment or material is being used for the provision of any dental services;

(3) Direct, control or interfere with a dentist’s clinical judgment; and specifically,

(4) Allowing any non-dentist or organization owned by a non-dentist to exercise control over:

(a) The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;

(b) The patient records of a dentist;

(c) Policies and decisions relating to pricing, credit, refunds, warranties and advertising; and

(d) Decisions relating to office personnel and hours of practice.

Violation of this Law is a Felony.

Any of these acts can result in disciplinary action against any licensed dental professional involved. More importantly, violation of this law is a felony which may result in criminal prosecution for any person involved. Consequently, contracts which violate the law are null and void.

Always have any contracts relating to the operation of your dental practice reviewed by an experienced board certified health lawyer before signing it. To read more on this topic, read one of our past blogs here.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) 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 visit our website at www.TheHealthLawFirm.com.

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By The Health Law Firm|2024-03-14T10:01:11-04:00May 15, 2018|Categories: Dental Law Blog|Tags: a defense lawyer, a dentist attorney, dental clinic contract lawyer, dental practice break-up, dental practice contract attorney, dental practice ownership, dentist, Florida dental law, Health Care Clinic license, non-dentist, ownership of dental clinic|2 Comments