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OSHA Issues Series of Citations for COVID-19-Related PPE Violations

By Carole C. Schriefer, J.D.

On September 14, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a citation against a healthcare system in Louisiana. Christus Shreveport-Bossier Health System is facing fines for failing to safeguard its employees with the appropriate personal protective equipment (PPE) during the coronavirus pandemic. OSHA has proposed $13,494 in penalties, the maximum allowed by law.

OSHA’s Investigation for COVID-19 Exposure Risk.

After receiving reports of employee exposure, OSHA opened a coronavirus–related investigation. The agency found that the health system violated workplace safety protocols and put employees at risk of COVID-19 exposure.

In a press release, OSHA stated, “emergency facility employees often shared used protective gowns or did not have protective gowns to wear while treating patients.” Click here to read the press release in full.

Christus Health had 15 business days from receipt of the citation and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings. In a statement, Katy Kiser, a spokesperson for Christus Health, said, “We are actively contesting the citation and the penalty. We have worked hard to secure the PPE we have needed to get us through many phases of the pandemic and maintain a local contingency supply of at least ten days. To date, we have experienced no gaps in PPE supply during pandemic response.”

COVID-19 Citations for Several Different Health Systems.

After receiving criticism that it was not adequately investigating COVID-19 complaints, OSHA announced it would ramp up enforcement. As a result, the agency said it would also issue fines against New Jersey-based Bergen New Bridge Medical Center and Hackensack Meridian Health. The two healthcare systems were cited for failing to provide appropriately fit respirator masks to its home healthcare employees. Additionally, after providing respirators, they didn’t provide adequate training and compliant medical evaluations.

Click here for more on this story.

To read OSHA’s Enforcement Response Plan for Coronavirus Disease memo that was released in May, 2020, click here.  For additional resources, visit OSHA’s COVID-19 response page on their website here.

Click here to read one of our recent blogs on this topic and learn more.

Health Care Providers Can and Should File Complaints with OSHA for Workplace Violations.

What these cases show is that health professionals whose employers fail to provide proper safety equipment, PPE, and other job-related protections, can file OSHA complaints. OSHA’s main purpose for existing is to protect employees from unsafe working environments. Although the fines OSHA assesses may be small, if the employer is fined, this may provide the basis for a workers compensation claim, a law suit, a union complaint or all of three of these.

Furthermore, if the employer retaliates against the employee for filing an OSHA complaint, then the employee has a valid cause of action against the employer, regardless of any other rights, under OSHA’s “whistle blower protection” provisions.

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

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

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

Sources:

Campbell, Braden. “OSHA Ramps Up Physical Inspections, COVID Case Reporting.” Law360. (May 19, 2020). Web.

Kutner, Max. “OSHA Fines La. Health System Over COVID-19 Violations.” (September 14, 2020). Web.

Shinkman, Ron. “OSHA fines 3 hospital systems for PPE violations.” Healthcare Dive. (September 15, 2020). Web.

About the Author: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456 or Toll-Free: (888) 331-6620. Its main office is in the Orlando, Florida area.

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

 

 

OSHA Issues Citations to Health Care Systems Over COVID-19 PPE Violations

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

On September 14, 2020, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a citation against a healthcare system in Louisiana. Christus Shreveport-Bossier Health System is facing fines for failing to safeguard its employees with the appropriate personal protective equipment (PPE) during the coronavirus pandemic. OSHA has proposed $13,494 in penalties, the maximum allowed by law.

OSHA’s Coronavirus-related Investigation.

After receiving reports of employee exposure, OSHA opened a coronavirus–related investigation. The agency found that the health system violated workplace safety protocols and put employees at risk of COVID-19 exposure.

In a press release, OSHA stated, “emergency facility employees often shared used protective gowns or did not have protective gowns to wear while treating patients.” Click here to read the press release in full.

Christus Health had 15 business days from receipt of the citation and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings. In a statement, Katy Kiser, a spokesperson for Christus Health, said, “We are actively contesting the citation and the penalty. We have worked hard to secure the PPE we have needed to get us through many phases of the pandemic and maintain a local contingency supply of at least ten days. To date, we have experienced no gaps in PPE supply during pandemic response.”

A Series of COVID-19 Citations for Different Health Systems.

After receiving criticism that it was not adequately investigating COVID-19 complaints, OSHA announced it would ramp up enforcement. As a result, the agency said it would also issue fines against New Jersey-based Bergen New Bridge Medical Center and Hackensack Meridian Health. The two healthcare systems were cited for failing to provide appropriately fit respirator masks to its home healthcare employees. Additionally, after providing respirators, they didn’t provide adequate training and compliant medical evaluations.

Click here for more on this story.

To read OSHA’s Enforcement Response Plan for Coronavirus Disease memo that was released in May 2020, click here.  For additional resources, visit OSHA’s COVID-19 response page on their website here.

Click here to read one of our recent blogs on this topic and learn more.

Health Providers Can and Should File Complaints with OSHA.

What these cases show is that health professionals whose employers fail to provide proper safety equipment, PPE, and other job-related protections, can file OSHA complaints. OSHA’s main purpose for existing is to protect employees from unsafe working environments. Although the fines OSHA assesses may be small, if the employer is fined, this may provide the basis for a workers compensation claim, a lawsuit, a union complaint, or all of three of these.

Furthermore, if the employer retaliates against the employee for filing an OSHA complaint, then the employee has a valid cause of action against the employer, regardless of any other rights, under OSHA’s “whistleblower protection” provisions.

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

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

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

Sources:

Campbell, Braden. “OSHA Ramps Up Physical Inspections, COVID Case Reporting.” Law360. (May 19, 2020). Web.

Kutner, Max. “OSHA Fines La. Health System Over COVID-19 Violations.” (September 14, 2020). Web.

Shinkman, Ron. “OSHA fines 3 hospital systems for PPE violations.” Healthcare Dive. (September 15, 2020). Web.

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

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

 

 

Woman Posing as Nurse For Six Years Sentenced to Prison For Health Care Fraud, Identity Theft, and Wire Fraud

 

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

Medical lawsuit. Arrest for medical crime concept. Handcuff near stethoscope on blue background top view.On September 23, 2020, a Tennessee woman who posed as a nurse working at several medical facilities was sentenced to more than four years in prison. In December 2019, she pled guilty to wire fraud, healthcare fraud, identity theft, and practicing nursing without a license.

How a Phony Nurse Gained Employment.

According to a news release from the U.S. Attorney’s Office, the woman posed as a registered nurse, despite not having a nursing degree or a nursing license, and having no nursing experience. To accomplish the fraud, she obtained the license numbers of real nurses with similar first names. She admitted to providing fraudulent information on job applications to gain employment. She was employed by at least eight different health care providers between September 2012 and November 2018. She also falsely claimed that she held nursing degrees from two educational institutions, Walters State College and Carson Newman University.

This is a long time, six years, to get away with health fraud. Usually, we only see things like this in Florida. However, in the past few years, Florida seems to be seeing fewer and fewer fake doctors, nurses, and health professionals. Perhaps the crackdown by the Florida Department of Health on the unlicensed practice of health professions has had some impact on this.

Continuing Lies & Fraudulent Behavior.

While posing as a nurse, the fake R.N. worked in various medical settings, including nursing homes, rehabilitation and assisted living facilities, a doctor’s office, and home health agencies. She rendered nursing care to numerous patients, dispensed prescription medications, and gained access to patients’ sensitive and private medical information, the U.S. Attorney’s Office said. Furthermore, the woman made false entries in patients’ medical records and submitted or caused the submission of at least $500,000 in false claims to public and private health care benefit programs.

The phony nurse performed procedures that she was, of course, unqualified to perform. She failed to act or to notify others of the necessary procedures for patients and failed to chart and document patient care. According to the written plea agreement, at least one patient required re-admittance to the hospital and an additional three-day hospital stay due to her inept care.

The Tennessee Bureau of Investigation Director David Rausch is quoted in the media as having stated: “Our Medicaid Fraud Control Division remains committed to working with our federal partners to ensure healthcare fraud and identity theft cases like this one are addressed and investigated thoroughly.”

Judge Clifton L. Corker of the U.S. District Court for the Eastern District of Tennessee sentenced her to 51 months in prison, followed by three years of supervised release. She was also ordered to repay $700,000 in restitution to her employers.

To read the DOJ’s press release about this case in full, click here.

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

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists, and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.
To contact The Health Law Firm, please call (407) 331-6620 or (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

“Morristown woman posed as nurse for 6 years at 8 health care providers.” ABC 6 Local News. (December 12, 2019). Web.

Starks, Ariel. “Fake nurse sentenced to 51 months in prison, ordered to repay employers $700,000.” WVLT 8 Local News. (September 23, 2020). Web.

Bonvissuto, Kimberly. “Nurse imposter who worked in assisted living sentenced for wire fraud, healthcare fraud, identity theft.” McKnight’s Senior Living. (September 25, 2020). Web.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources.

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


Contact Health Law Attorneys Experienced in Representing Dentists.

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

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

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

 

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Headshot of The Health Law Firm's attorney George F. Indest IIIAbout the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, and Achal A. Aggarwal, M.B.A., J.D. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

By |2020-08-06T12:46:15-04:00September 1st, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Colorado Board of Pharmacy Must Give DEA Patient Identifying Data Says Federal Judge

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clashing Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

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

The Health Law Firm’s attorneys routinely provide legal representation to mental healthcare professionals, nurses, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for nurses in Board of Nursing investigations and complaints, DORA investigations and complaints, and Department of Health (DOH) investigations and complaints. We defend in state and federal administrative hearings, investigations, and litigation. We also represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 and visit our website at www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

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

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

By |2020-06-03T16:55:58-04:00August 12th, 2020|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Question: What Should You, as a Dentist, Do If You Or One of Your Employees Tests Positive For the COVID-19 Coronavirus?

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

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

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

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

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

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

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

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

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

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

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

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

Additional Resources.

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


Contact Health Law Attorneys Experienced in Representing Dentists.

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

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

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

 

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Headshot of The Health Law Firm's attorney George F. Indest IIIAbout the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, and Achal A. Aggarwal, M.B.A., J.D. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

By |2020-07-28T12:15:48-04:00July 28th, 2020|Categories: Dental Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Colorado Judge Says Board of Pharmacy Must Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations and Audits.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clashing Over Patient Privacy and Data.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Court’s Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

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

The Health Law Firm’s attorneys routinely provide legal representation to nurses, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for nurses in Board of Nursing investigations and complaints, DORA investigations and complaints, and Department of Health (DOH) investigations and complaints. We defend in state and federal administrative hearings, investigations, and litigation. We also represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 and visit our website at www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

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

KeyWords: DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer, DORA defense attorney, Department of Health defense attorney, Florida Board of Pharmacy defense legal representation, legal defense for pharmacists, pharmacist defense lawyer, board of pharmacy defense lawyer, board of pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, board of pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney

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

By |2020-06-03T16:48:48-04:00July 22nd, 2020|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Federal Judge Says Colorado Board of Pharmacy Must Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

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

The Health Law Firm’s attorneys routinely provide legal representation to nurses, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for nurses in Board of Nursing investigations and complaints, DORA investigations and complaints, and Department of Health (DOH) investigations and complaints. We defend in state and federal administrative hearings, investigations, and litigation. We also represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 or (970) 416-7456 and visit our website at www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

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

KeyWords: DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer, DORA defense attorney, Department of Health defense attorney, Florida Board of Pharmacy defense legal representation, legal defense for pharmacists, pharmacist defense lawyer, board of pharmacy defense lawyer, board of pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, board of pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney

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

By |2020-06-03T16:42:11-04:00July 1st, 2020|Categories: Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

CO Board of Pharmacy Ordered to Give DEA Patient Data

Attorney Carole C. SchrieferBy Carole C. Schriefer, J.D.
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Audits and Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy & Data.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide legal representation to pharmacists, pharmacies, physicians and other health providers. We defend in state and federal administrative hearings, investigations, and litigation. We represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

About the Authors: Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

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. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer, DORA defense attorney, Department of Health defense attorney, Florida Board of Pharmacy defense legal representation, legal defense for pharmacists, pharmacist defense lawyer, board of pharmacy defense lawyer, board of pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, board of pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney

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

By |2020-06-03T14:53:03-04:00June 10th, 2020|Categories: Colorado Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Colorado Board of Pharmacy Ordered to Hand Over Patient Identifying Data to DEA

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On April 22, 2020, a federal judge ordered the Colorado Board of Pharmacy to give the U.S. Drug Enforcement Administration (DEA) prescription drug monitoring program data on two pharmacies that the DEA is investigating. The data includes patient identifying information of more than 14,000 patients. The state must turn over the data by May 15, 2020, according to the order.

Pharmacy Investigations.

Citing concerns about the two pharmacies’ handling of controlled-substance prescriptions, the DEA issued subpoenas under the Controlled Substances Act in 2019. The DEA requested the information as part of an investigation into whether the two unnamed pharmacies broke the law in dispensing opioids and other drugs.

Clash Over Patient Privacy.

The DEA’s requested information is kept under the state’s Prescription Drug Monitoring Program or PDMP. For controlled-substance prescriptions, Colorado pharmacies and pharmacists are required by state law to report information that includes the names of patients, their doctors, and pharmacies.

Colorado state officials refused to release the data citing patient privacy concerns. The DEA’s “overly broad, undifferentiated demand for access would violate the Fourth Amendment right to privacy guaranteed to more than 14,000 patients whose medical data is at issue,” the state said.

According to the order, the Colorado statute allows the prescription-monitoring data to be disclosed but only to specific recipients including in response to law enforcement subpoenas. However, the state argued that the Colorado statute only applies to a “bona fide investigation of a specific individual.”

To read about a similar case involving a DEA investigation into pharmacy prescription practices, click here to read my prior blog.

The Decision.

U.S. District Judge Raymond P. Moore denied Colorado’s objections to the DEA’s subpoenas for the prescription data including patients’ information such as names, birth dates, and addresses. The judge said the DEA has shown that the requested information is relevant and needed for the ongoing investigation of the two pharmacies, and no warrant is needed to obtain it. The order directs the Colorado Board of Pharmacy and Patty Salazar, Executive Director of the Colorado Department of Regulatory Agencies (DORA) to provide the data to the DEA no later than May 15, 2020.

To read the court’s order in full, click here.

For more information, click here to read the press release issued from the United States Attorney’s Office for the District of Colorado.

States Must Act to Protect the Integrity of Such Programs.

State prescription drug monitoring programs (PDMPs) were sold to pharmacists and physicians based on a promise that they were solely for the purpose of protecting patients from overdoses and preventing “doctor shopping” by dishonest, drug-seeking patients. Inherent in these programs was the promise that they would not be used for the purpose of prosecuting or charging physicians or pharmacists, in criminal proceedings or administrative proceedings, based on their contents. Most of the state laws that authorized the creation of PDMPs specifically forbid their use in such cases. This was required in order to get physicians and state medical societies to buy off on them.

Yet here we are. We see this over and over. the Federal government and federal agencies obtaining copies of these reports from the state and using them as direct evidence against physicians, pharmacists, nurse practitioners, and pharmacies, despite the prohibition of the state statutes.

Moreover, not only does this subvert the purpose behind creating such databases, but then it runs afoul of the Fifth Amendment of the U.S. Constitution and similar provisions of most state constitutions. The doctor or pharmacist is required by law to report the prescriptions to the PDMP, but then the federal agency turns right around and uses it as evidence against the individual who reported it.

The feds take the position: “We do not care why you, the state, authorized it or what its purpose was supposed to be. If we want to take that information and use it for something else, something that was specifically prohibited by the state, then we will do it.”

Until state pharmacy associations and medical associations do something to tighten up the state legislation that created the PDMPs, this situation is not likely to change. The feds will continue to use the state PDMPs to prosecute and to take administrative actions to revoke the DEA registrations of physicians, pharmacists, pharmacies, and other health professionals.

Consult With A Health Law Attorney Experienced in the Representation of Pharmacists and Pharmacies.

We routinely provide legal representation to pharmacists, pharmacies, physicians and other health providers. We defend in state and federal administrative hearings, investigations, and litigation. We represent health professionals in formal and informal administrative hearings. We have a great deal of experience in defending against DEA actions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants and other health professionals in investigations and at Board of Pharmacy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Zegers, Kelly. “Colo. Must Give DEA Pharmacy Data With Patient Info.” Law360. (April 20, 2020). Web.

Ingold, John. “Why the DEA is suing Colorado’s pharmacy board as part of an opioid investigation.” The Colorado Sun. (November 11, 2019). Web.

Pazanowski, Mary Ann. “Colorado Pharmacy Board Must Give DEA Patient-Identifying Info.” Bloomberg Law. (April 22, 2020). Web.

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

KeyWords: DEA order to show cause (OSC) defense lawyer, legal representation for administrative hearings, DEA hearing defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, DEA order to show cause (OSC) defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) investigation defense attorney, Drug Enforcement Administration (DEA) subpoena defense lawyer, Drug Enforcement Administration (DEA) inspection defense attorney, Drug Enforcement Administration (DEA) hearing defense attorney, Drug Enforcement Administration (DEA) order to show cause (OTSC) defense lawyer, DORA defense attorney, Department of Health defense attorney, Florida Board of Pharmacy defense legal representation, legal defense for pharmacists, pharmacist defense lawyer, board of pharmacy defense lawyer, board of pharmacy hearing legal representation, pharmacy license disciplinary charges defense attorney, legal representation for pharmacist, legal representation for pharmacy, pharmacy defense lawyer, pharmacy audit defense representation, pharmacy audit defense attorney, board representation for pharmacists, board representation for pharmacies, board representation for physicians, board of pharmacy investigation representation, legal representation for board investigations, The Health Law Firm, administrative hearing defense attorney

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

By |2020-06-03T14:43:22-04:00June 3rd, 2020|Categories: Pharmacy Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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