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Hey, Health Care Professionals…Why Can’t We Be Friends?!

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

Every year, our firm sponsors and attends various medical industry events. Needless to say, our law firm table is not the most popular hangout spot. If we had a penny for every time we have heard “Yikes, an attorney! I hope I never need you.” we could close our doors and all retire.

The feeling is akin to being the last kid picked for teams in gym class. So we ask ourselves: why are we attorneys shunned by health care professionals? Why won’t anyone make eye contact with us at meetings and events? Why is there a negative stigma attached to the phrase “law firm?”

We found the answer.

It’s Not Us. It’s You.

Before you take great offense to such a bold statement, hear me out. Society as a whole seems to have a misconceived notion that a law firm’s services are solely for reactive purposes. Meaning, you need defensive legal assistance. In these reactive situations, lawyers defend their clients to make the most out of an unfortunate situation. I frequently hear, “well nothing has gone wrong yet, so why do I need an attorney?” Here’s the secret: We can do much more than help you when something has gone wrong.

To reap the maximum potential from your profession, you should be utilizing “legal checkups” instead of burying your head in the sand. First, it’s more cost effective to hire a lawyer proactively BEFORE something goes wrong. When you are proactive about your legal needs, you have time to be selective in choosing the right lawyer for your needs. You can build a foundation before you invest in your legal needs. Typically, if you are in need of a lawyer to reactively defend you, you’re already knee-deep and you won’t be afforded the opportunity to find the best attorney.

Taking The Initiative Legal Business Advice.

The benefits of proactively obtaining an attorney are often overlooked. Having an attorney available at any time for legal protection and business advice may not always cross a health care professional’s mind. I find this to be ironic. Health care professionals recommend patients to eat healthy, exercise often, take daily vitamins, and schedule regular checkups. All these suggestions are proactive measures to ensure a stable life, full of longevity. Doesn’t it grind your gears when patients overlook your expert advice until something goes terribly wrong? We can both agree that preemptive measures are necessary in health and health care business.

I am not a medical expert, therefore, I would not attempt to perform a surgical procedure or offer a diagnosis. Legal services are the same. Most health care professionals cannot draft a contract themselves or set up a partnership office flawlessly without experienced legal expertise.

Proactive Legal Help We Often See Overlooked.

Whether it be our firm or not, health care professionals and businesses need a trusted health law attorney readily available to ask for help when additional legal knowledge, experience, or judgment is needed. The following list outlines health care business legal services that are proactive in nature.

– Obtain a contract review, of any agreement, before you sign the dotted line. It is crucial to
have a lawyer experienced in health law review convoluted documents that may bind you to
terms and conditions that you should not be liable for.

– Hire an attorney to negotiate your employment contracts to ensure that you are fairly
compensated for your work.

– A health law attorney adept in assisting with a business restructuring is invaluable. Whether
you are opening or closing a medical office, taking part in a merger, or launching or dissolving
a partnership, these transactions are complex. It is not in your best interest to attempt any
business maneuver without the input of a trusted health law attorney who is familiar with your
professional business goals.

– A compliance assessment is an important proactive measure for health providers and
businesses. With the increase of federal and state oversight, it is wise to have a thorough
review and analysis of your business protocols and procedures on a regular basis. An
experienced health law attorney can help you avoid critical administrative pitfalls. These
assessments verify compliance in areas such as: Medicare/Medicaid billing claims, patient
record keeping, HIPAA and HITECH procedures, etc.

You know what they say, it’s better to be safe than sorry. Hiring an attorney is NOT solely for the purpose of negative occurrences or damaging mistakes. As a health care professional, it is crucial to work with a trusted health lawyer to advise you in your business decisions. Don’t rely on the notion that you don’t need a lawyer until you are in trouble. Heeding our warning, you could save yourself a lot of time and money.

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 or facility.

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 state 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, 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.

KeyWords: Proactive legal services, health law legal advice, health care professional legal help, corporate law, corporate health law, contract review, employment contract reviews, office reconstruction, medical office reconstruction, compliance assessment, partnership dissolutions, mergers, legal business advice, corporate law attorney, corporate lawyer, employment law, employment law attorney, contract negotiation, contract negotiation attorney, contract negotiation lawyer, health law, business law, legal business advice, legal advice, health care professional, attorney for health care professionals, representation for health care professionals, representation for health care facilities, health law defense lawyer, employment law representation, The Health Law Firm, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“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 © 2018 The Health Law Firm. All rights reserved.

Two Nursing Home Co-Conspirators Sentenced in $19 Million Fraud Kickback Scheme

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

On July 9, 2018, two co-conspirators in a $19.4 million healthcare fraud scheme involving a nursing home chain, American Senior Communities, were sentenced in Indiana federal court. Both pled guilty to various conspiracy and money laundering charges.

The Multi-Million Dollar Scheme.

Prosecutors allege that the men reached side deals with vendors who handled things like nurse call systems, food and medical supplies for the nursing home chain. According to the U.S. Department of Justice (DOJ), the kickback scheme generated nearly $19.4 million that the men spent on vacation homes, private planes, golf trips, Rolex watches, gold bullion and casino chips. Both were charged in 2016, along with two others for their roles in the same scheme. Read more about their involvement here.

The Sentencing.

The DOJ said Steven Ganote received a five-year sentence with two years of supervised release and was ordered to pay $7 million in restitution. Additionally, Joshua Burkhart was handed a four-month sentence with two years of supervised release and ordered to pay $420,000 in restitution. Each of the men is charged with one count of conspiracy to commit mail, wire and health care fraud, money laundering and conspiracy to violate the Anti-Kickback Statute (AKS).

To learn more about these types of illegal kickback schemes, click here to read one of my prior blogs on health care fraud.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues, Fraudulent Billing and Overbilling Now.

The attorneys of The Health Law Firm represent healthcare providers in cases of medical billing fraud, overbilling, Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

 

Sources:

Fowler, Haylay. “Nursing Home Schemer Sentenced In $19M Kickback Scheme.” Law360. (July 9, 2018). Web.

Kass, Dani. “Ex-Nursing Home Execs Indicted In $16M Kickback Scheme.” Law360. (October 12, 2016). 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 the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Medical billing fraud, fraudulent billing representation, fraudulent billing attorney, representation for overbilling, representation for submitting false claims, False Claims Act (FCA) violations, representation for submitting false claims, false claims lawyer, FCA defense attorney, Anti-Kickback Statute(AKS) violations, AKS representation, AKS attorney, representation for fraudulent reimbursement, representation for illegal kickback scheme illegal kickback scheme attorney, legal representation for health care professionals, health fraud defense lawyer, health law defense attorney, health law, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

Responding to a Medicare Audit – Practice Tips

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Colorado Surgeon Accused of Botching Multiple Robotic Arm Surgeries

CCS Blog LabelBy Carole C. Schriefer, R.N., J.D., The Health Law Firm and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Colorado surgeon allegedly faces 14 counts of unprofessional conduct associated with the use a robotic arm used during surgeries, according to the formal administrative complaint. The Colorado Medical Board filed the complaint on April 2, 2013, alleging that from 2008 until 2010, the surgeon cut and tore blood vessels, left sponges and other instruments inside of patients, injured patients through padding and positioning, subjected some patients to overly long surgeries and had to abort kidney donation procedures because of mistakes. The surgeon is also accused of not documenting the mistakes in patient charts.

According to the Colorado Board of Medicine’s administrative complaint, the surgeon was using the da Vinci robot, manufactured by Intuitive Surgical, Inc., for surgeries.

Click here to read the formal complaint from the Colorado Medical Board.

This complaint was filed around the same time as the U.S. Food and Drug Administration (FDA) launched a review of the robotic procedures.

A Number of Patients Speak Out On Surgeries.

The complaint lists 11 patient cases allegedly mishandled by the surgeon.

In one case, a 22-year-old woman wanted to donate a kidney to her brother. She was informed by the surgeon that the robot was the “gold standard” for kidney removals and transplants. During the surgery, the surgeon allegedly injured the patient’s aorta. To stop the bleeding, the surgeon allegedly converted to an open surgery, then aborted the kidney removal. After the attempted surgery, the patient allegedly went into post-operative distress and an X-ray showed a sponge that had been left inside the patient. The patient also alleges she was left with nerve damage after being improperly padded.

In another case, the surgeon allegedly used the robot on an 86-year-old man with metastatic cancer. The surgeon allegedly injured the patient’s aorta, and the robot arm moved when it should not have, causing another tear. The patient suffered kidney failure after the operation, and the family withdrew the patient’s life support.

Surgeon Suspended for Performing Robotic Surgeries.

In the complaint, the Colorado Medical Board is asking an administrative law judge to discipline the surgeon’s license to practice medicine. An article in The Denver Post states that the surgeon had his robotic-surgery privileges suspended for three months in 2010. The hospital would not say whether or not the surgeon received new training before allowing him to use the robotic arm after his suspension.

To read the entire article from The Denver Post, click here.

FDA and Other Medical Societies Leery of Robotic Procedures.

In March 2013, the FDA began interviewing surgeons about issues with the robotic surgery units, according to Fierce Health IT. The agency is allegedly trying to figure out why there has been an uptick in adverse event reports, including damaged organs and device failures, and whether these are a result of error or design problems.

For a list of other sources discussing possible adverse outcomes from robotic surgery, please see “references” below.

The American Congress of Obstetricians and Gynecologists and the Massachusetts Quality and Patient Safety Division are also warning health care professionals about the risks associated with robotic surgeries, according to Fierce Health IT. The American Congress of Obstetricians and Gynecologists said that these types of surgeries should not be the first or second choice for women undergoing routine hysterectomies. The Massachusetts Quality and Patient Safety Division sent a letter advising doctors of the safety concerns regarding robotic surgery.

Click here to read the entire article from Fierce Health IT.

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 health care professional, does your facility use robotic arm surgeries? Do you believe they are the safer option? Do you think the FDA should take a closer look at these machines? Please leave any thoughtful comments below.

Sources:

Booth, Michael. “Colorado Charges Doctor in Problem-Plagued Robo-Surgeries at Porter.” The Denver Post. (April 10, 2013). From: http://www.denverpost.com/breakingnews/ci_22998041/colorado-charges-doctor-botched-robo-surgeries-at-porter

Hall, Susan. “Robo-Surgery Mistakes Land Physician in Hot Water.” Fierce Health IT. (April 15, 2013). From: http://www.fiercehealthit.com/story/robo-surgery-mistakes-land-physician-hot-water/2013-04-15

Colorado Medical Board v. Warren J. Kortz, M.D. Case Number ME 2013. Formal Complaint (April 2, 2013). From:http://www.thehealthlawfirm.com/uploads/Colo%20v.%20Warren%20Kortz%20MD.pdf

Gold, Ashley. “Health Officials Warn Complications Robotic Surgeries.” Fierce Health IT. (March 26, 2013). From: http://www.fiercehealthit.com/story/health-officials-warn-complications-robotic-surgeries/2013-03-26

Hall, Susan. “OBGYN Group: Robotic Surgeries Not Best Choice for Routine Hysterectomies.” (March 15, 2013). From: http://www.fiercehealthit.com/story/obgyn-group-robotic-surgery-not-best-choice-routine-hysterectomies/2013-03-15

Garde, Damian. “FDA Echoes Questions Over Intuitives’s Surgical Robot.” Fierce Medical Devices. (March 1, 2013). From: http://www.fiercemedicaldevices.com/story/fda-echoes-questions-over-intuitives-surgical-robot/2013-03-01

Bird, Julie. Much of Robo-Surgery Marketing ‘Unsubstantiated.’” Fierce Health IT. (July, 24, 2012). From”
http://www.fiercehealthit.com/story/much-robotic-surgery-marketing-unsubstantiated/2012-07-24

About the Authors: Carole C. Schriefer is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Physician Argues Definition of “Peer” at Formal Administrative Hearing

peer reviewFACTS: The Agency for Health Care Administration (“AHCA”) is responsible for administering Florida’s Medicaid program and conducting investigations and audits of paid claims to ascertain if Medicaid providers have been overpaid. With regard to investigations of physicians, section 409.9131, Florida Statutes, provides that AHCA must have a “peer” evaluate Medicaid claims before the initiation of formal proceedings by AHCA to recover overpayments. Section 409.9131(2)(c) defines a “peer” as “a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice.” Section “109.9131(2)(a) deems a physician to be in “active practice” if he or she has “regularly provided medical care and treatment to patients within the past two years.”

Alfred Murciano, M.D., treats patients who are hospitalized in Level III neonatal intensive care units and pediatric intensive care units in Miami-Dade, Broward, and Palm Beach County hospitals. His practice is limited to pediatric infectious disease. He has been certified by the American Board of Pediatrics in two areas: General Pediatrics and Pediatric Infectious Diseases. AHCA initiated a review of Medicaid claims submitted by Dr. Murciano between September 1, 2008, and August 31, 2010, and referred those claims to Richard Keith O’Hern, M.D., for peer review. Dr. O’Hern practiced medicine for 37 years, and was engaged in a private general pediatric practice until he retired in December of 2012. During the course of his career, he was certified by the American Board of Pediatrics in General Pediatrics, completed a one-year infectious disease fellowship at the The University of Florida, and treated approximately 16,000 babies with infectious disease issues. However, he was never board certified in pediatric infectious diseases, and at the time he reviewed Dr. Murciano’s Medicaid claims, Dr. O’Hern would have been ineligible for board certification in pediatric infectious diseases. In addition, Dr. O’Hern would have been unable to treat Dr. Murciano’s hospitalized patients in Level III NICUs and PICUs.

After Dr. O’Hern’s review, AHCA issued a Final Agency Audit Report alleging Dr Murciano had been overpaid by $l,051.992.99, and that he was required to reimburse AHCA for the overpayment. In addition, AHCA stated it was seeking to impose a fine of $210,398.60.

OUTCOME: Dr. Murciano argued at the formal administrative hearing that Dr O’Hern was not a “peer” as that term is defined in section 409.9131(20)(c). The ALJ agreed and issued a Recommended Order on May 22, 2014, recommending that AHCA’s case be dismissed because it failed to satisfy a condition precedent to initiating formal proceedings. While recognizing that AHCA is not required to retain a reviewing physician with the exact credentials as the physician under review, the ALJ concluded Dr. O’Hern was not of the same specialty as Dr. Murciano.

On July 31, 2014, AHCA rendered a Partial Final Order rejecting the ALJ’s conclusion that Dr. O’Hern was not a “peer.” In the course of ruling that it has substantive jurisdiction over such conclusions and that its interpretation of section 409.9131(2)(c), Florida Statutes, is entitled to deference, AHCA stated that it interprets the statute “to mean that the peer must practice in the same area as Respondent, hold the same professional license as Respondent, and be in active practice like Respondent.” AHCA concluded that “Dr. O’Hern is indeed a ‘peer’ of Respondent under the Agency’s interpretation of Section 409.9131(2)(c), Florida Statutes, because he too has a Florida medical license, is a pediatrician and had an active practice at the time he reviewed Respondent’s records. That Dr. O’Hern did not hold the same certification as Respondent, or have a professional practice identical to Respondent in no way means he is not a ‘peer’ of Respondent.” AHCA’s rejection of the ALJ’s conclusion of law regarding Dr. O’Hern’s “peer” status caused AHCA to remand the case back to the ALJ to make the factual findings on the claimed overpayments that were not made in the Recommended Order because of the ALJ’s conclusion that Dr. O’Hern did not qualify as a “peer.”

On August 18, 2014, the ALJ issued an Order respectfully declining AHCA’s remand. AHCA then filed a Petition for writ of Mandamus in the First District Court of Appeal, asking the court to direct the ALA to accept the remand and to enter findings of fact and conclusions of law with regard to each overpayment claim. The court assigned case number 1D14-3836 to AHCA’s Petition, and the case is pending.
Source:

AHCA v. Alfred Murciano, M.D., DOAH Case No. 13-0795MPI (Recommended Order May 22, 2014), AHCA Rendition No. 14-687-FOF-MDO (Partial Final Order July 31, 2014)
About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 36, No. 2 (Dec. 2014), a publication of the Administrative Law Section of The Florida Bar.

Florida Doctor Arrested for Drug Sales and Other Criminal Charges

Drug trafficking charges against a medical doctor are not a new concept, especially in Florida. Recent pill mill busts throughout the state have resulted in an omnipresent DEA, always on the lookout for illegal drug sales by pharmacies, pharmacists, pain management clinics and physicians. However, the recent arrest of a Central Florida doctor extends beyond the run of the mill “pill mill” bust, as the accusations in this case involve sex with a minor and delivering a controlled substance to a minor.

According to Florida Today, this Central Florida doctor was arrested Tuesday following a raid by the Florida Department of Law Enforcement. This is his second arrest after he was charged with possession of marijuana and drug paraphernalia in August.

Tuesday’s arrest resulted from evidence of the doctor’s sexual relationship with a high school student. The doctor was arrested in 2009 after being caught during a traffic stop with bags of marijuana in his car and allegedly having a sexual relationship with the 16-year-old passenger. Although charges were not filed after the girl recanted her evidence and claimed the marijuana was hers, that didn’t put an end to a steady stream of younger girls going into the clinic. According to residents of the area surrounding the clinic, girls were frequently seen going to see the doctor dressed in revealing attire. Aside from teenage patients, residents reported often seeing a line out to the street for people waiting to get into the clinic, a possible indicator of drug trafficking.

Although his medical license has been suspended, this Florida doctor has yet to receive broader drug trafficking charges, despite his huge prescription distribution numbers. According to the Florida Department of Law Enforcement, this doctor prescribed 250,000 oxycodone pills in the first eight months of 2011. Compared to the entire state of California, which had 300,000 oxycodone prescriptions in the last six months of 2010, it is evident that this Florida doctor had a major painkiller operation. The Florida Department of Law Enforcement is calling him one of the worst offenders in the state of Florida. Upon further investigation, this doctor and anyone who may have assisted him in the drug trafficking of oxycodone may be charged for this offense.

While the possibility of drug trafficking charges is enough to scare any physician, other criminal charges can be equally damaging, especially depending on how the accused individuals plea to the charges. A health professional’s plea of nolo contendere, which may seem like the safe route, is actually treated the same as a plea of guilty for all purposes. There are ways to defend criminal charges (like the ones against the aforementioned Florida doctor) that can result in a more favorable outcome (e.g., attempting to obtain pre-trial diversion, pre-trial intervention or drug court), but legal advice should be sought from an attorney who frequently represents health care providers before any actions are pursued. To learn more about criminal charges against doctors and other health professionals see this recent post or visit our website at www.TheHealthLawFirm.com.

Healthcare Providers Service Organization (HPSO) Attorneys, Lawyers and Defense Council in Florida

10 Indest-2008-7By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Often we learn after the fact that a health professional such as a mental health counselor, psychologist, or pharmacist has received Healthcare Providers Service Organization (HPSO) insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

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

If you have HPSO Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it. Contact us, and we will help you.

Don’t Worry About Legal Bills While Your Case is Going On.

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

Contact Experienced Health Law Attorneys That Will Work with Insurance Companies.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. We will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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

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

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

10 Indest-2008-7Edited by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law

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

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

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

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

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

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

Additional Comments.

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

Contact The Health Law Firm Attorneys Experienced in Administrative Law.

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

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

 

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

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

Indest

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

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

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

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

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

Contact Experienced Health Law Attorneys.

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

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. We will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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

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

The Ins and Outs of Florida’s 2015 Legislative Session for Health Care Providers

10 Indest-2008-7George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law

Committees are busy in Tallahassee as the 2015 Legislative Session is set to begin on March 3, 2015. For Florida physicians and other health care providers, now is the time to review the legislative bills that could affect you and your practice. There are many bills pending that could impact the future of medical practice and health care delivery in Florida.

On the table are some recognizable bills from last year, as well as a few new ones. To stay up to date on the 2015 Legislative Session as it relates to health care, check this blog regularly.

Bills Up for Consideration.

The two most profiled issues from the 2014 Legislative Session are back.

– House Bill (HB) 547 and the companion Senate bill (SB) 614 would give nurse practitioners the ability to prescribe controlled substances. It would also expand their scope of practice, which would exempt them from the requirement that certain medical acts be performed or supervised by a physician. To learn more on this bill, click here for our previous blog.

– HB 545 and the companion Senate bill SB 478 defines what is determined to be telemedicine or telehealth. These bills call for coverage in Medicaid programs. Lawmakers state an agreement has been made to require health care providers to be licensed in Florida to provide telemedicine in the state. House and Senate leaders have expressed confidence they will reach an agreement this year on telemedicine. Click here to learn more on telemedicine in Florida.

Each bill could dramatically change the landscape of the practice of Florida medicine.

Keep an Eye on These Additional Bills.

Other pending bills that could impact the delivery of health care in Florida, include:

– SB 516 addresses insurance coverage and reimbursement issues for emergency services;

– HB 279 would allow pharmacy interns to administer vaccinations to adults;

– HB 281 and SB 532 would allow licensed physician assistants under physician supervision to order controlled substances in the hospital setting; and

– HB 515 and SB 710 revise the scope of physical therapists and prohibit individuals with doctorates in physical therapy to present themselves as a doctor without informing the public of his or her actual profession as a physical therapist.

In Conclusion.

The 2015 Legislative Session is packed with bills that, if approved, will affect physicians, physician assistants, nurses, and other health care providers. As a health care provider, knowing the ins and outs of these bills can save you from the headache and possible fines that could come from non-compliance. We urge you to become involved with these issues. If you would like to know more, you can contact your local medical society. Again, we will stay on top of the progress of these bills, so check this blog regularly.

Contact Experienced Health Law Attorneys.

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

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

Sources:

Stone, Rick. “PAs, Nurse Practitioners Could Get Prescribing Authority.” Health News Florida. (February 11, 2015). From: http://health.wusf.usf.edu/post/pas-nurse-practitioners-could-get-prescribing-authority?utm_source=Health+News+Florida+eAlert+subscriber+list&utm_campaign=e231ee3f8a-Friday_February_13_20152_13_2015&utm_medium=email&utm_term=0_8d22eaa6f6-e231ee3f8a-249582973

Saunders, Jim. “Telemedicine Deal Likely in 2015, Legislators Say.” Orlando Sentinel. (February 3, 2014). From: http://www.orlandosentinel.com/news/politics/os-florida-telemedicine-deal-20150203-story.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.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

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