Department of Health (DOH) | The Health Law Firm Blog

Question: Is Exposure to COVID-19 For Nurses and Other Healthcare Workers, Causing Illness, Disability, or Death, Considered an Employment-Related Injury Under Workers’ Comp Coverage?

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

In answering the question posed in the title of this blog, first, it should be noted that the World Health Organization (WHO) classifies COVID-19 as an “occupational disease.” (Reference: World Health Organization, “Coronavirus Disease (COVID-19) Outbreak: Rights, Roles and Responsibilities Of Health Workers. . . .”)

Click here to view the classification by the WHO on our website.

Most state workers’ compensation laws cover the worker for occupational diseases if the worker acquires it during the course and scope of their employment. For example, Section 440.151(2), Florida Statutes, states:

Whenever used in this section the term “occupational disease” shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public. “Occupational disease” means only a disease for which there are epidemiological studies showing that exposure to the specific substance involved, at the levels to which the employee was exposed, may cause the precise disease sustained by the employee.

Section 440.151(2), Florida Statutes, (emphasis added). Many other states have similar requirements to those of Florida.

Healthcare workers are at the front line of any outbreak response and as such are exposed to hazards that put them at an increased risk of infection with the COVID-19 virus. Therefore, as COVID-19 meets the criteria as an “occupational disease.”

Moreover, Section 440.151(1)(a), Florida Statutes, states:

Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee or, in case of death, the employee’s dependents shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease. Major contributing cause must be shown by medical evidence only, as demonstrated by physical examination findings and diagnostic testing. “Nature of the employment” means that in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations. In claims for death under s. 440.16, death must occur within 350 weeks after last exposure. Both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by clear and convincing evidence.

Section 440.151(1)(a), Florida Statutes.

It is important to note that COVID 19 or any other communicable disease (TB, H1N1, etc.): The employee has to test positive for the disease/contagion and it must be determined with a reasonable amount of certainty that their exposure to the virus occurred in the workplace and was not community-acquired.

In addition, per Section 440.151(1)(c), Florida Statutes states:

Where an occupational disease is aggravated by any other disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in anywise contributed to by an occupational disease, the compensation shall be payable only if the occupational disease is the major contributing cause of the injury. Any compensation shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants. Major contributing cause must be demonstrated by medical evidence based on physical examination findings and diagnostic testing.

Section 440.151(1)(c), Florida Statutes, (emphasis added).

With regard to emergency medical technicians (EMTs) or paramedics Section 440.09(3), Florida Statutes, states:

If an emergency medical technician or paramedic is appointed or employed full time by a municipality, the state, or any political subdivision, is certified under chapter 401.23, in an emergency situation in this state, any such activities would be considered to be within the course of his or her employment and an emergency medical technician or paramedic and covered by the employer’s jurisdiction or area of responsibility, such activities are considered to be within the course of employment. The provisions of this subsection do not apply if the emergency medical technician or paramedic is performing activities for which he or she is paid by another employer of contractor.

Section 440.09(3), Florida Statutes (emphasis added).

Workers Compensation Benefits for Healthcare Professionals.

As of March 26, 2020, Florida has not issued any order or legislation explicitly stating that healthcare professionals exposed to COVID-19 will be entitled to Workers Compensation benefits.

By way of example, In the City of Phila. v. Workers’ Comp. Appeal Bd. (Sites), 889 A.2d 129 (Pa. Commw. Ct. 2005), a claimant was successful in proving that his hepatitis C was caused by his exposure to blood that occurred while working as a firefighter and emergency medical technician (EMT). Similar to COVID-19, hepatitis C was also classified as a compensable “occupational disease.” Therefore, it is likely that a healthcare professional’s exposure to COVID-19 would result in viable workers’ compensation claim.

Federal workers’ compensation laws are similar to those quoted above. Therefore, federal health care providers and those working in federal facilities will also most probably be entitled to federal employment compensation (FECA) benefits under similar situations.

We want to emphasize that this is merely our preliminary opinion based on limited analysis and research. It is provided for informational purposes only. It does not constitute the provision of legal advice. Each state has different workers’ compensation laws and different case law, as does the federal government. Each individual set of circumstances may be different. Contact your local workers’ compensation plaintiff’s (claimant’s) attorney for advice and representation in your individual case.

For more information and more examples of employment compensation benefit cases for health care professionals, click here.

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

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

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

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

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

By The Health Law Firm|2020-05-07T15:47:57-04:00May 7, 2020|Categories: Medical Education Law Blog|Tags: administrative complaint, administrative law, Department of Health (DOH), Florida health law attorney, health care fraud defense attorney, legal representation for health care professionals, licensure defense attorney|0 Comments

Will a Death from COVID-19 be Considered “Accidental Death” for Life Insurance Policies or a Death from “Accidental Causes?”

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

Almost all life insurance policies, including term policies, pay a “double indemnity,” that is, double the limits of coverage if a death occurs from “accidental causes” as opposed to “natural causes.” A question arises, given the COVID-19 pandemic, of whether a death caused by the novel corona versus would be considered a natural death or an accidental death. Fortunately, there is some guidance on this issue.

One reason it is important to distinguish between “accidental death” and “natural death” is that:

There is no pandemic exclusion for life insurance. General life insurance covers pandemics, assuming you were truthful about your travel plans and exposure to illness during the application process. . . . . An accidental death & dismemberment policy is more limited and covers deaths only when they’re accidental. It generally doesn’t [usually] cover deaths caused by illness and disease.

Nat’l Ass’n of Ins. Comm’rs, COVID-19 & Ins. (2020), https://content.naic.org/sites/default/files/inline-files/Insurance%20Brief%20-%20Covid-19%20and%20Insurance.pdf. (Emphasis added).

Definition of “Accidental Death”

According to Black’s Law Dictionary, an “accidental death” is defined as: “A death that results from an unusual event, one that was not voluntary, intended, expected, or foreseeable.” Accidental Death, Black’s Law Dictionary (4th pocket ed. 2011). Likewise, Ballentine’s Law Dictionary states than an “accidental death” is:

One that occurs unforeseen, undesigned, and unexpected. 29 Am J Rev ed Ins § 1166. One which occurs by accident, that is, was not designed or anticipated, albeit it may occur in consequence of a voluntary act.

Accidental Death, Ballentine’s Law Dictionary (3rd ed. 1969).

Under the above two definitions, definitions that are usually considered to come from the common law, death from the COVID-19 virus would be considered to be an “accidental death.”

Look to State Insurance Laws for Definitions.

One should also immediately look at the state’s insurance statutes to see if their state’s law defines “accidental death” in terms of insurance coverage. As an example, Florida law provides such definitions in Chapter 627 of Florida Statues which deals with insurance contracts.

Section 627.429(5)(c), Florida Statutes, is of particular note. Regarding death from HIV, for example, it states:

Except for preexisting conditions specifically applying to sickness or medical condition of the insured, benefits under a life insurance policy shall not be denied or limited based on the fact that the insured’s death was caused, directly or indirectly, by exposure to the HIV infection or a specific sickness or medical condition derived from such infection. This paragraph does not prohibit the issuance of accidental death only or specified disease policies.

Section 627.429(5)(c), Florida Statutes (emphasis added).

This is significant because the Human Immunodeficiency Virus (HIV) is a very slow-acting disease that harms one’s immune system by destroying the white blood cells that fight infection. Death may not occur for years, even decades from an infection. Whereas, COVID-19 is a fast-acting respiratory virus. If death from HIV could be considered an “accidental death,” than death from COVID-19 certainly could be classified as “accidental death,” as well.

Legal Arguments for “Accidental Death”

If you have a death in your family and there is life insurance coverage on that person, you should not accept the insurance company’s determination that the death is from “natural causes” as opposed to “accidental death.” Challenge this decision, in court, if necessary.

A death caused by the COVID-19 virus is clearly “from an unusual event.” I doubt that anyone would even contest this issue. It is also clearly “one that was not voluntary, intended, [or] expected.” Again, the novel coronavirus pandemic has taken the world by surprise. How can anyone in their right mind argue that it was truly “expected.” “Foreseeable” would be an objective test as to whether this was something “reasonably foreseeable.” It does not appear, from the shock and unreadiness displayed by state and national governments and health officials, that this event was truly reasonably foreseeable.

I did not foresee it, did you? If 99.999% of the populace did not foresee it, how can it be argued that it is reasonably foreseeable? At the very least, this is a jury question and the foregoing should be argued to the jury. If the average reasonable man (the man who is a legal fiction) did not foresee this pandemic and the deaths that result, how can it not be an “accidental death”? It seems that any jury would be hard-pressed to find other than an “accidental death.”

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

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

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

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

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

By The Health Law Firm|2020-05-07T15:34:35-04:00May 7, 2020|Categories: Health Facilities Law Blog|Tags: administrative complaint, Administrative Hearing, Department of Health (DOH), DOH defense attorney, Florida health law attorney, health care attorney, health care fraud, health care fraud defense attorney, health care lawyer, health law defense attorney, health law firm, representation for healthcare professionals, reviews of The Health Law Firm|0 Comments

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.

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.

“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.

Licensed Health Professionals: Keep Up with Your Continuing Education Requirements

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

Those who are licensed by the Department of Health (DOH) must be sure they are maintaining their continuing education requirements by taking the required courses in a timely manner. We have attended at least one professional board meeting recently where there was concern expressed about licensees failing to meet their continuing education requirements. One estimate was that approximately sixty percent (60%) were deficient of one profession.

Failing to obtain the required courses during the time period set forth by statute and by board regulation can result in disciplinary action being taken against a licensee. Disciplinary action in one state can lead to disciplinary action commenced against a license held in another state, if the licensee holds multiple licenses.

Issues we continuously see among licensed health professionals arising out of continuing education:

1. Failure to take courses from a continuing education provider properly approved by the state board. When in doubt, ask, in writing.

2. Failure to take and complete all required courses and hours within the period of time established by the board.

3. Failure to take the exact subject matter courses required by law (such as HIV awareness, domestic violence, prevention of medical errors, etc.).

4. Failing to maintain documents proving that the provider took the courses (such as registration, payment receipt, course attendance certificate, etc.).

5. Failing to apply for or request an exemption from continuing education requirements at the time the grounds for them first arise (e.g. hardship, medical problems, not practicing).

6. Failing to respond to an audit of continuing education completion requirements (you will then be assumed to have not completed them and a DOH investigation will be opened).

7. Failing to respond in a succinct, organized manner, by letter, with proper documentation, sent to the correct address that auditor states, via certified mail, return receipt requested.

8. Assuming that the office manager, practice manager or administrative secretary is going to take care of such matters so you do not have to be concerned with them.

9. Arguing with or being demeaning to the auditor who requests information or who advises you that you are short of hours or courses.

10. Failing to immediately make up any missing hours or courses from prior periods, in addition to fully meeting all current continuing education requirements.

11. Failing to respond to citations, complaints or letters sent to you by the department of health regarding this matter.

Often consulting an experienced health law attorney on such matters can save a great deal of turmoil, mental anguish, cost and damage to your professional license and professional reputation.

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

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Comments?

Are you guilty of failing to meet your continuing education requirements? Do you think the continuing education classes are worth the time invested in them? Please leave any thoughtful comments below.

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.

“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|2013-01-04T14:47:00-05:00June 1, 2018|Categories: Department of Health, Licensing issues, The Health Law Firm Blog|Tags: continuing education requirements, Department of Health (DOH), Department of Health license, disciplinary action against a license, health care professional, health care provider continuing education, licensed health professionals, professional license|0 Comments

Osceola County Commissioners Vote to Regulate Pain Management Clinics

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

On October 8, 2012, the Osceola County, Florida, Commissioners unanimously approved an ordinance that will regulate pain management clinics, according to the Orlando Sentinel. The ordinance will take effect on October 31, 2012, and will be in effect for 10 years.

Click here to see the ordinance passed at the Osceola County Commissioner’s meeting.

This is part of the continuing efforts by law enforcement to cut down on prescription drug abuse that plagues the state.

Ordinance Details.

The ordinance spells out what constitutes a pain management clinic, prohibits cash-only payments and requires pain management clinics to provide the names of employees to the county.

The ordinance also requires that clinics participate in the Department of Health’s (DOH) Prescription Drug Monitoring Program. That means pain management doctors will have to track and provide monthly reports on how many prescriptions are issued for controlled substances, and provide certain patient data, such as age ranges, race and gender.

Anyone caught violating these rules will be punished with the loss of their business tax receipt.

Any hospital or physician engaged in short-term treatment of pain (90 days or less) is exempt from the ordinance.

Seminole County Might Be Next.

Seminole County, Florida, Commissioners were set to vote on a similar ordinance at their meeting on October 9, 2012, but heard arguments from doctors. The ordinance will now be considered next month, according to the Orlando Sentinel.

Click here to read the entire article from the Orlando Sentinel.

Don’t Risk Your License. Read These Tips for Pain Management Doctors to Stay Inside the Law.

On top of following the new ordinance, Osceola County doctors and any doctor working in pain management, should read this article on tips to protect themselves from drug-seeking patients.

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, pain management doctors, 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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a healthcare professional, what do you think of this ordinance? Please leave any thoughtful comments below.

Source:

Breen, David. “Osceola Ordinance Targets Pill Mills.” Orlando Sentinel. (October 9, 2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-osceola-pain-clinic-ordinance-20121009,0,2467210.story

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.

“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.

Boca Raton Compounding Pharmacy Shuts Its Doors After Receiving an Emergency Suspension Order

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

On October 26, 2012, the Florida Department of Health (DOH) issued an emergency suspension order (ESO) against a Boca Raton compounding pharmacy, according to a number of sources. The DOH in a press release called the conditions in the pharmacy so “deplorable” that nothing short of immediately shutting down the pharmacy would suffice.

Click here to read the press release from the DOH.

Rodent Feces, Dead Bugs and a Sink Full of Dirty Water all Found at Compounding Pharmacy.

On October 12, 2012, a state inspector arrived at the Boca Raton compounding pharmacy for an inspection. According to an article on Health News Florida, rodent feces, dead bugs and a sink full of dirty water were discovered. A film of powder covered surfaces in the drug-compounding area, where containers of drugs were open. Information on patients and prescriptions was missing, and drug labels were missing important information on the dose, lot number and prescribing physician.

Apparently the compounding pharmacy had been cited in past inspections for similar issues.

To read the Health News Florida article, click here.

All Compounding Pharmacies Are Now Under Pressure.

The compounding pharmacy can have a DOH hearing before final action is taken. The suspension is in effect until final disciplinary action, until the suspension is lifted or the case is appealed.

This inspection and ESO occurred in the wake of a nationwide outbreak of fungal meningitis linked to contaminated drugs made by a compounding pharmacy in Massachusetts. I previously wrote a blog on the Massachusetts compounding pharmacy shutting down. To read more click here.

It’s believed because of the meningitis outbreak, all compounding pharmacies are under the microscope.

Another Florida Compounding Pharmacy in Trouble Due to Fungal Growth.

I previously blogged about the problems encountered by Franck’s pharmacy in Ocala, Florida. It has been accused of distributing eye medications that contained a fungal infection. Click here for the first blog and here for the second blog I wrote on this.

Contact Health Law Attorneys Experienced in Representing Pharmacies and Pharmacists.

The Health Law Firm represents pharmacists and pharmacies in investigations, regulatory matters, licensing issues, litigation, inspections and audits. The firm’s 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.

Comments?

Do you think the Boca Raton compounding pharmacy was unfairly served with an ESO due to the meningitis outbreak? Or do you think it is better for the Florida DOH to be safe rather than sorry? Please leave any thoughtful comments below.

Sources:

Gentry, Carol. “State Finds Pharmacy Conditions ‘Deplorable,’ Suspends License.” Health News Florida. (October 26, 2012). From: http://wusfnews.wusf.usf.edu/post/state-finds-pharmacy-conditions-deplorable-suspends-license

Florida Department of Health. “Department of Health Takes Action Against Florida Pharmacy.” DOH. (October 26, 2012). Press Release From: http://newsroom.doh.state.fl.us/wp-content/uploads/newsroom/2011/08/102612RejuviESO.pdf

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.

“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.

Fake Occupational Therapist Accused of Working in a Number of Local Hospitals

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

A Kissimmee, Florida, man is accused of posing as an occupational therapist (OT) and working at various health care facilities in Central Florida, according to the Department of Justice (DOJ). On October 16, 2012, the DOJ announced that the phony OT was charged with three counts of mail fraud, five counts of wire fraud, and one count of aggravated identity theft.

Click here to see the press release from the DOJ.

Phony OT Worked in Hospitals Around Central Florida.

The fake OT allegedly took the license numbers of two legitimate OTs and stole the social security number of a North Carolina man. With this information and fabricated education credentials, the imposter received a temporary OT license from the Florida Department of Health (DOH).

According to the Orlando Sentinel, the man worked for a number of employers in Central Florida, including Florida Hospital, Lake Placid Health Care Center and a staffing agency, between 2009 and 2011.

To see the article from the Orlando Sentinel, click here.

Fake OT Faces Prison Time.

Pretending to be any kind of health professional can result in prison time and large fines.

In the case of the phony OT, if convicted, he faces a maximum penalty of twenty years in federal prison for each of the five counts of mail/wire fraud and two years in federal prison for the aggravated identity theft charge.

Other Odd Health Care Stories from the Area.

It seems to me that over the years the town of Kissimmee has had a disproportionately large number of phony health professionals practicing there. Just recently an individual was convicted of posing as a licensed physician assistant (PA.), seeing patients in a Kissimmee hospital. Click here to see a blog on that story.

Phony doctors, nurses, PAs, dentists; what gives? Perhaps the close proximity to Disney World’s Fantasy Land leads them to believe they are really health professionals. Or maybe it’s something in the water there. Let’s hope it’s not colloidal silver. (Note: inside Central Florida joke.) See link to Howey-in-the-Hills story. See link to “Papa Smurf” story.

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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of this story? With the recent phony doctor, dentist and other health professional stories lately do you think it has become too easy to obtain a fraudulent license from the DOH? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “Feds: Man Posed as Occupational Therapist, Worked at Local Hospitals.” Orlando Sentinel. (October 16, 2012). From: http://articles.orlandosentinel.com/2012-10-16/news/os-fake-therapist-indicted-20121016_1_occupational-therapist-local-hospitals-indictment-charges

Department of Justice. “Occupational Therapist Impersonator Charged With Mail Fraud, Wire Fraud, And Identity Theft.” Department of Justice. (October 16, 2012). From: http://www.justice.gov/usao/flm/press/2012/oct/20121016_Lewis.html

WESH.com. “Feds Say Fake Therapist Worked at Central Fla. Hospitals.” WESH.com. (October 16, 2012). From: http://www.wesh.com/news/central-florida/Feds-say-fake-therapist-worked-at-Central-Fla-hospitals/-/11788162/17015634/-/o4imk8/-/index.html

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.

“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.

Fake Pharmacist Sentenced to Prison for Working in Central Florida Pharmacies

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

On November 2, 2012, a former Altamonte Springs resident was sentenced to three and a half years in federal prison for fraudulently working as a Central Florida pharmacist from 2000 to 2009, according to the Department of Justice (DOJ).

Click here to read the press release from the DOJ.

I previously blogged about this story when the fake pharmacist pleaded guilty. Click here to read that blog.

Phony Pharmacist Worked at Central Florida Pharmacies Including CVS and Walgreens.

According to an article in the Orlando Sentinel, the man worked at pharmacies throughout Central Florida, including a CVS and a Walgreens. While working at one of the pharmacies, he allegedly gave a customer the incorrect medication, causing that person to suffer a stroke.

Man Will Spend Time in Prison and Must Change His Name.

Allegedly, the man fraudulently obtained a pharmacy license in September of 2000

from the Florida Department of Health (DOH) by using the name, date of birth, Social Security number and pharmacy education information of a licensed pharmacist in Arizona. In 2004 the man actually changed his legal name by fraud to the name of the licensed pharmacist.

Along with his prison sentence, the fake pharmacist was ordered to change his name back to his legal name.

Fun with Alliteration.

Pardon my alliteration, but I just love all of those “F” sounds like I used in the title for this blog. For comparison, see my blog on Franck’s Pharmacy fungus case.

Look for More Stories on Phony and Fraudulent Health Professionals to Come.

In the near future on this blog we will include additional articles on fake doctors and health professionals, some old, some new.

To see a recent blog on a fake dentist in Miami, click here. You can also read the story of a fake plastic surgeon in New York by clicking here.

Contact Health Law Attorneys Experienced with Representing Pharmacists and Pharmacies.

The attorneys of The Health Law Firm provide legal representation to pharmacists and pharmacies 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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of all the fake health provider stories? Please leave any thoughtful comments below.

Sources:

FBI.gov. “Pharmacist Impersonator Sentenced to Prison and Ordered to Change His Name.” FBI, Tampa Division. (November 1, 2012). From Press Release: http://www.fbi.gov/tampa/press-releases/2012/pharmacist-impersonator-sentenced-to-prison-and-ordered-to-change-his-name

Pavuk, Amy. “Fake Pharmacist Sentenced to Federal Prison.” Orlando Sentinel. (November 1, 2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-fake-pharmacist-prison-20121101,0,4565731.story
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.

“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.

Tightened Restrictions Placed on Pain Management Clinics in Seminole County

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

Seminole County, Florida, is the latest county to adopt tightened regulations for pain management clinics. On November 13, 2012, County Commissioners unanimously voted to adopt the ordinance enacting Chapter 186 of the Seminole County Code to establish regulations regarding pain management clinics.

Click here to read the entire Seminole County Ordinance.

County Commissioners hope these new regulations will aid law enforcement in fighting illegal pill mill operations in Florida.

Officials Believe Restrictions Will Help Prevent Overprescribing.

The ordinance requires clinics to get a license, produce monthly reports on how many prescriptions are issued for controlled substances and report patient information, such as a patient’s address. This only applies to practices where doctors issue prescriptions for painkillers such as oxycodone to more than 20 patients a day. It does not pertain to hospitals and other major medical facilities.

Anyone violating the regulations can be charged with a misdemeanor and lose his or her business license.

Restrictions Have Doctors Upset.

The Orlando Sentinel interviewed a Boca Raton doctor who specializes in pain management. The doctor reportedly believes the regulations are helping to curb drug overdoses, but stated the regulations also limit legitimate board-certified medical specialists. He believes many Florida doctors are ready to move out of the Sunshine State and go to another state with fewer regulations.

To read the Orlando Sentinel article, click here.

Other Cities and Counties in Central Florida That Have Voted to Regulate Pain Management Clinics.

At the end of October 2012, Osceola County Commissioners voted to adopt a similar ordinance. I wrote previously wrote about that story, click here to read that blog.

In addition to Osceola County, Winter Park, Sanford, Oviedo and Maitland have opted to enact ordinances that regulate pain management clinics’ location and operation.

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, pain management doctors, 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 (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

As a healthcare professional, what do you think of this ordinance? Have you thought about leaving Florida due to the new regulations? Please leave any thoughtful comments below.

Sources:

Comas, Martin. “Seminole Tightens Regulations for Pain Management Clinics.” Orlando Sentinel. (November 13, 2012). From: http://www.orlandosentinel.com/news/local/seminole/os-pain-management-clinics-seminole-20121112,0,7626282.story

Seminole County Government. “Ordinance Chapter 186.” Seminole County Government. (November 13, 2012). From: http://www.thehealthlawfirm.com/uploads/Pain%20Management%20Ordinance.pdf

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.

“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.

Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 1

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will concentrate on those licenses by the state DOH in this blog.

Overview.

What few people (even attorneys) know is that cases which involve discipline against a professional’s license are treated as “punitive” or “penal” cases. This means the standards applied to them, at least in Florida, are the same that are applied to criminal cases.

Therefore, if the statute that is being charged is unclear or ambiguous, the courts apply a “strict scrutiny” standard. If the language of the statute does not clearly prohibit the acts being charged or is unclear about being covered by the statute, then there should be a ruling in favor of the one charged.

Additionally, rights that apply in criminal cases, such as the right to have an attorney and the right to not be compelled to be a witness against oneself found in the Fifth Amendment of the U.S. Constitution, also apply to administrative cases involving discipline against a license holder.

The state has a higher burden of proof in an administrative licensure case, as well. The burden of proof that applies in a civil case, “preponderance of the evidence” (also described as the greater weight of the evidence, the preponderance of the evidence or more than fifty percent), does not apply in administrative discipline cases. Instead a higher burden, “clear and convincing evidence” applies. Therefore, if the evidence supports the license holder’s position, just as much as it supports the state’s case, the state loses.

How Constitutional Rights Are Involved.

The Fifth Amendment of the United States Constitution provides individuals protection against self-incrimination, stating:

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

Note that in Florida, as in most states, a professional license is considered to be a property right which cannot be taken by the state without due process of law.

Article I, Section 9 of the Constitution of Florida also provides similar protections stating:

No person shall be deprived of life, liberty or property without due process of law . . . or be compelled in any criminal matter to be a witness against oneself.

In addition, case law in Florida has upheld as a protected right the individual’s ability to practice a profession of choice if otherwise so qualified. To take away this right requires due process of law and reviewing courts will apply a strict scrutiny standard.

Under some states’ constitutions or state statutes there is a right to work or a right to practice the profession of one’s choice; this further lends credibility to an argument that agency actions which take away this substantial right should require a greater burden than that required in a mere civil case (i.e., preponderance of the evidence”). However, even without such a provision in the state constitution, a professional license (or the right to practice a profession) is a substantial right and to take it away should require a higher burden of proof (e.g., clear and convincing).

Supreme Court Gives More Protection In Cases That Are “Penal.”

The law is settled through U.S. Supreme Court cases that “penal statutes are to be construed strictly, Commissioner v. Acker, 361.U.S. 87, 80 S. Ct. 144, 4. L. Ed. 2d 127 (1959), Fed’l Comm. Comm’n v. Am. Broadcasting Co., 347 U.S. 284, 296. One “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362. See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410; Elliott v. RR Co., 99 U.S. 573, 576.

Penal statutes must be construed narrowly and are interpreted against the state. Any part or term that is vague will not be enforced or will be stricken. Warren v. State, 16 Fla. L. Week 1346 (Fla. 1991). Accord, Riley v. Georgia, 219 Ga. 345, 133 S.E. 2d 367 (Ga. 1963); State v. Morrison, 25 N.J. Super. 534, 96 A. 2d 723 (Essex Cty. Ct., N.J., 1953); U.S. v. Ortiz, 24 M.J. 164 (CMA 1987), at 168.

Florida Courts Apply Criminal Law Rights and Protections to Cases Involving Administrative Penalties.

The Florida Supreme Court has affirmatively extended the proscription against self-incrimination to any administrative proceeding of a “penal” character. This could be one in which the state seeks revocation or suspension of a license or one in which the state seeks a fine on a licensee. Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any administrative proceeding in which the state seeks to inflict a penalty against the license or the licensee would invoke these rights. An action to revoke a professional license is penal. So, too, is an action which results in the loss of income or a fine.

More to Come.

Be sure to check our blog regularly to learn more on the burden of proof in administrative cases involving discipline of professional licenses. Part two of this blog series will be posted soon.

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

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

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

“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.