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Veterans Urge Federal Court To Reconsider DEA Marijuana Classification

By Carole C. Schriefer, J.D.

On October 1, 2020, military veterans urged the U.S. Ninth Circuit Court of Appeals to reconsider the U.S. Drug Enforcement Administration’s (DEA) restrictive marijuana classification. The Iraq and Afghanistan Veterans of America (IAVA) said in an amicus curiae (friend of the court) brief that designating the drug a highly controlled substance has impeded medical research that could save lives.

Marijuana Claimed to Be a “Life-saving Treatment” for Veterans.

IAVA’s brief focused on suicide rates among returning soldiers. The group claimed the current status of marijuana on the drug schedules, listing it as a Schedule I drug, one without any medical use, under federal law inhibits studies to demonstrate its potential in the treatment of post-traumatic stress disorder (PTSD).

According to the IAVA’s brief, the Schedule I status of marijuana prevents the U.S. Department of Veterans Affairs (VA) and private practitioners from studying the benefits and risks of medical marijuana. This results in keeping life-saving treatment away from veterans suffering from PTSD who reside in states where they are not available.

The brief stated that 40% of veterans experience some form of PTSD that is not helped by treatments approved by the U.S. Food and Drug Administration. In 2019, IAVA conducted a survey showing that 20% of respondents used marijuana for medicinal purposes. Additionally, 90% of survey respondents support expanding clinical research for medical uses, and 90% would use it if it were an option.

To read IAVA’s amicus brief in full, click here.

Click here to read my recent blog on a proposed medical marijuana research bill.

Schedule I Drug.

Marijuana is listed as a Schedule I drug on the federal drug schedules. “Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.” Some examples of Schedule I drugs include heroin, LSD, and ecstasy. Anyone viewing these drugs objectively would come to the conclusion that marijuana is simply not like the others.

It Is High Time for a Change.

Many veterans have returned from overseas combat severely affected by PTSD and other mental disorders. There is simply not enough available care through the VA to take care of them all. Moreover, many of these suffer from illnesses making them paranoid or suspicious of even seeking such care. Many are homeless. Many are able to function, some normal and some almost normally, by self-medicating with marijuana.

As more and more states authorize medical marijuana, the federal government should acknowledge that there is some benefit to its use and reclassify it. It is simply common sense. Too long has the public labored under the unjust and unsupportable assumption that incorrectly categorizes it as a Schedule I drug. It needs to be moved to Schedule V or Schedule IV. Medical bills would go down, drug bills would go down, and legitimate physicians, even federal physicians, would be allowed to prescribe it.

Contact Experienced Health Law Attorneys for Medical Marijuana Regulatory Matters and Other Health Care Licensing Matters.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists, and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting, and/or licensing while complying with Florida law. We can also represent doctors, pharmacies, and pharmacists facing proceedings brought by state regulators or agencies. We represent health-related businesses and medical professionals in all types of licensing and regulatory matters, including state and federal administrative hearings.

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

Sources:

Reisman, Sam. “Veterans Urge 9th Circ. To Hear Challenge To DEA’s Pot Status.” Law360. (October 7, 2020). Web.

Jeager, Kyle. “Military Veterans Group Asks Federal Court To Hear Marijuana Case Challenging DEA Classification.” Marijuana Moment. (October 8, 2020). Web.

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

“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.

 

Going For an Evaluation With Your State Providers Health Program, Peer Assistance Program, Intervention Project for Nurses, or Professionals Resource Network? Tips on What NOT To Do!

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

So you are a physician, nurse or other health professional who has been accused of drug diversion, alcohol use at work, being impaired because of use of drugs or alcohol, or being positive on a drug test. You have been reported to the state board or to your employer who has now reported you to the Professionals Resource Network (PRN), the Intervention Project for Nurses (IPN), the state peer assistance program, or the providers health program. It has contacted you and you have agreed to go to an evaluation by one of the program’s trained evaluators.

Here are a few tips that may help you. These are based on the mistakes that our clients have made before contacting us or retaining us to advise and assist in such matters.

1. Stop drinking alcoholic beverages immediately upon learning that you are facing scrutiny. Do not begin drinking again until the entire case is completely resolved. (Hint: If you cannot stop drinking or do not want to stop drinking, then you are probably an alcoholic and should be in a recovery monitoring program.)

2. In most cases, you will be required to provide a urine sample, a blood sample, a nail sample and/or a hair sample. This may disclose your use of drugs and alcohol even many weeks or months after-the-fact. Be aware that this may occur.

3. Be on time to your evaluation. Being late for an important, career-affecting event may be the sign of a real problem or lack of adequate judgment. Plan ahead. Leave early. Prepare for the unexpected.

4. Do not take tranquilizers, mood stabilizers or other medications immediately prior to your appointment with

5. Dress and groom appropriately. If your clothes and your person are dirty and unkempt, this may be considered to be a sign of an underlying problem.

6. Answer any questions the evaluator asks briefly and concisely. Do not volunteer information not requested. This is not a confessional, you are not there to confess your sins. You should know that there are a number of “red flags” that psychologists and psychiatrists use against you to find that you have a significant problem that requires treatment and long-term monitoring. For example, if your parents divorced, this is a red flag and counts against you (yes, I have argued with a psychologist that over half the marriages in the U.S. wind up in a divorce). Having a relative with an addiction an alcohol problem or a mental disorder will also do this. Be careful about whom you say was an alcoholic if you haven’t seen the doctors’s diagnosis of it.

7. There are some things that the only way the evaluator will know of these is if you tell her. For example, if no one knows you were sexually abused by a relative when you were young, this is not the time or place to tell. You are not there for treatment. This is not your doctor or therapist.

8. There is no confidentiality in such an evaluation. Nothing you tell the evaluator is confidential;. And it can be used against you later.

Before going for such an evaluation, consult with an experienced health care attorney, one who is familiar with such matters and is familiar with the licensing issues for your profession. To learn more, read one of our prior blogs on this topic here.

Contact Experienced Health Law Attorneys in Matters Involving PRN or IPN.

The Health Law Firm’s attorneys routinely represent physicians, dentists, nurses and other health professionals in matters involving PRN or IPN. Our attorneys also represent health providers in Department of Health investigations, before professional boards, in licensing matters, and in administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 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., 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 © 2021 The Health Law Firm. All rights reserved.

Tips If You Are Having Academic, Disciplinary or Legal Problems with Your Residency Program

By Carole C. Schriefer, J.D.

Here are some tips to set the record straight on various inaccurate information I have heard from physicians in medical residency programs in representing them in appeals of disciplinary actions including suspension and terminations.

1. Nothing you tell your Program Director, advisor, mentors, attendings, senior resident, or co-resident is confidential. Go ahead and pour your heart out about all of your problems and concerns, but none of it is confidential, even if you said it was “in confidence.” What is confidential: what you tell your priest or religious adviser (preacher, rabbi, imam) and what you tell your own personal physician or psychotherapist (unless you have signed a waiver) that you have hired and you are paying. Anyone else, it is not confidential. So if you tell your program director you were raped when you were younger, not confidential. If you tell your senior resident you suffer from panic attacks, not confidential. You tell your attending that you had cancer ten years ago, not confidential. This applies no matter what “magic words” you attach to it.

2. Take and use whatever time period is offered to you to retain counsel and prepare. If you are given ten (10) days to file an appeal or a request for hearing, take the full ten (10) days. Do not file it on the same day. Otherwise, you are using up valuable preparation time that you cannot get back.

3. Make sure that whatever you are required to file is actually received by the due date indicated. If a request for a hearing must be filed within fifteen (15) days, that means that it must be received within the fifteen days. Check after you send it or deliver it to make sure it has been successfully received.

4. It is never too early to hire an attorney. Hire an attorney to represent and advise you at the first sign of trouble. However, you must be sure to hire an attorney who is experienced in representing residents and fellows in disputes with graduate medical education programs. An experienced attorney can help you prepare any written submissions you make, organize your response and any documents you care to submit, and otherwise assist you in identifying what is relevant and what is not relevant.

5. Always read your program’s graduate medical education (GME) manual, residency manual, due process policy or whatever handbook or manual contains your hearing and appeal rights. Be familiar with them and follow them.

6. If you are given remedial actions you must take, documents your completion of each one. Whether the requirement you must perform is in a corrective action plan (CAP), a remediation letter, or a probation letter, document your completion of it in writing and report it to whatever authority gave you the requirement. Send a courtesy copy (“cc”) to your program director.

7. Make sure any correspondence you send to anyone is complete, correct and in the form of a professional business letter. Make sure it meets all of the requirements of a professional business letter. This is especially true for rebuttals, appeals, hearing requests, etc. What, you don’t know what this is? Then go online and Google it. Your letter should look very similar to any letter you received from your program director or institution. Be sure it has all of your return contact information on it as well as a date. Do not start your letter with “Hi,” “Hello,” or “Good day.” Do place a reference (“Re:”) line or subject line on your letter that states what the subject of your letter is.

8. Do not be afraid to appeal, file a discrimination complaint or exercise any of your legal rights. Often I hear from residents, after they are already terminated from their program, that they are afraid to get a lawyer involved. I usually ask: “What are you afraid of? What is the worst that can happen? You have already been terminated.” Remember, also, that if your program retaliates against you for exercising any of your rights, that is illegal. The ACGME would like to hear about that and in almost all cases, you will then have a legal cause of action upon which you can sue the program.

Contact a Health Care Attorney Experienced in the Representation of Medical Resident Physicians, Fellows, Medical Students, Dental Students and Residents, Pharmacy Students and Residents, Mental Health Counselor Interns, and other health professionals. The attorneys of The Health Law Firm, also represent those applicants accused of irregular behavior by the National Board of Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), in responses, hearings and appeals, including on charges of “unprofessional conduct” and “improper behavior.”

The Health Law Firm and its attorneys have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters.

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

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

KeyWords: Irregular behavior defense lawyer, irregular conduct legal representation, graduate medical education (GME) defense attorney, resident physician legal representation, resident physician defense attorney, legal counsel for resident physician, international medical graduate attorney, graduate medical education defense lawyer, lawyer for medical students, medical resident physician attorney, residency program legal dispute lawyer, residency program litigation attorney, legal dispute with medical school lawyer, medical student legal counsel, disruptive physician attorney, impaired medical student legal counsel, impaired resident legal defense attorney, United States Medical Licensing Examination (USMLE) defense lawyer, USMLE defense attorney, National Board of Medical Examiners (NBME) defense counsel, Educational Commission for Foreign Medical Graduates (ECFMG) defense lawyer, ECFMG defense attorney, legal representation for USMLE investigations, legal representation for NBME investigations, legal representation for irregular behavior, irregular behavior defense attorney, irregular behavior defense counsel, health law attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Philadelphia attorney for ECFMG hearing, Philadelphia lawyer for NBME hearing, Philadelphia legal counsel for USMLE hearing

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

 

 

 

 

 

Eight Tips If You Are Having Academic, Disciplinary or Legal Problems with Your Residency Program

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

Here are some tips to set the record straight on various inaccurate information I have heard from physicians in medical residency programs in representing them in appeals of disciplinary actions including suspension and terminations.

1. Nothing you tell your Program Director, advisor, mentors, attendings, senior resident, or co-resident is confidential. Go ahead and pour your heart out about all of your problems and concerns, but none of it is confidential, even if you said it was “in confidence.” What is confidential: what you tell your priest or religious adviser (preacher, rabbi, imam) and what you tell your own personal physician or psychotherapist (unless you have signed a waiver) that you have hired and you are paying. Anyone else, it is not confidential. So if you tell your program director you were raped when you were younger, not confidential. If you tell your senior resident you suffer from panic attacks, not confidential. You tell your attending that you had cancer ten years ago, not confidential. This applies no matter what “magic words” you attach to it.

2. Take and use whatever time period is offered to you to retain counsel and prepare. If you are given ten (10) days to file an appeal or a request for hearing, take the full ten (10) days. Do not file it on the same day. Otherwise, you are using up valuable preparation time that you cannot get back.

3. Make sure that whatever you are required to file is actually received by the due date indicated. If a request for a hearing must be filed within fifteen (15) days, that means that it must be received within the fifteen days. Check after you send it or deliver it to make sure it has been successfully received.

4. It is never too early to hire an attorney. Hire an attorney to represent and advise you at the first sign of trouble. However, you must be sure to hire an attorney who is experienced in representing residents and fellows in disputes with graduate medical education programs. An experienced attorney can help you prepare any written submissions you make, organize your response and any documents you care to submit, and otherwise assist you in identifying what is relevant and what is not relevant.

5. Always read your program’s graduate medical education (GME) manual, residency manual, due process policy or whatever handbook or manual contains your hearing and appeal rights. Be familiar with them and follow them.

6. If you are given remedial actions you must take, documents your completion of each one. Whether the requirement you must perform is in a corrective action plan (CAP), a remediation letter, or a probation letter, document your completion of it in writing and report it to whatever authority gave you the requirement. Send a courtesy copy (“cc”) to your program director.

7. Make sure any correspondence you send to anyone is complete, correct and in the form of a professional business letter. Make sure it meets all of the requirements of a professional business letter. This is especially true for rebuttals, appeals, hearing requests, etc. What, you don’t know what this is? Then go online and Google it. Your letter should look very similar to any letter you received from your program director or institution. Be sure it has all of your return contact information on it as well as a date. Do not start your letter with “Hi,” “Hello,” or “Good day.” Do place a reference (“Re:”) line or subject line on your letter that states what the subject of your letter is.

8. Do not be afraid to appeal, file a discrimination complaint or exercise any of your legal rights. Often I hear from residents, after they are already terminated from their program, that they are afraid to get a lawyer involved. I usually ask: “What are you afraid of? What is the worst that can happen? You have already been terminated.” Remember, also, that if your program retaliates against you for exercising any of your rights, that is illegal. The ACGME would like to hear about that and in almost all cases, you will then have a legal cause of action upon which you can sue the program.

Contact a Health Care Attorney Experienced in the Representation of Medical Resident Physicians, Fellows, Medical Students, Dental Students and Residents, Pharmacy Students and Residents, Mental Health Counselor Interns, and other health professionals. The attorneys of The Health Law Firm, also represent those applicants accused of irregular behavior by the National Board of Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), in responses, hearings and appeals, including on charges of “unprofessional conduct” and “improper behavior.”

The Health Law Firm and its attorneys have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters.

To contact The Health Law Firm please call (407) 331-6620 or toll-free at (888) 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 the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

KeyWords: Irregular behavior defense lawyer, irregular conduct legal representation, graduate medical education (GME) defense attorney, resident physician legal representation, resident physician defense attorney, legal counsel for resident physician, international medical graduate attorney, graduate medical education defense lawyer, lawyer for medical students, medical resident physician attorney, residency program legal dispute lawyer, residency program litigation attorney, legal dispute with medical school lawyer, medical student legal counsel, disruptive physician attorney, impaired medical student legal counsel, impaired resident legal defense attorney, United States Medical Licensing Examination (USMLE) defense lawyer, USMLE defense attorney, National Board of Medical Examiners (NBME) defense counsel, Educational Commission for Foreign Medical Graduates (ECFMG) defense lawyer, ECFMG defense attorney, legal representation for USMLE investigations, legal representation for NBME investigations, legal representation for irregular behavior, irregular behavior defense attorney, irregular behavior defense counsel, health law attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Philadelphia attorney for ECFMG hearing, Philadelphia lawyer for NBME hearing, Philadelphia legal counsel for USMLE hearing

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

 

 

 

 

 

New Sweeping Privacy Legislation Announced: The SAFE DATA Act

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

On September 17, 2020, Republican members of the Senate Commerce Committee introduced sweeping federal privacy legislation. The proposed law is called the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The Act is a combination of bills previously introduced in the Senate: the Consumer Data Protection Act, Filter Bubble Transparency Act, and the Deceptive Experiences to Online Users Reduction Act. It hasn’t passed, yet, so let’s wait and see.

HAH! You thought you had learned all of the acronyms and abbreviations because you know what HIPAA, HITECH, FERPA, USCDPA, and FOIA mean. Let’s see how long it takes you to remember what this one stands for.

Details of the SAFE DATA Act.

This proposed legislation has three main components if passed into actual law. It:

1. Provides consumers with more choice and control over their data (allegedly),
2. Directs business to be more transparent and accountable (allegedly), and
3. Strengthens the FTC’s enforcement power (allegedly).

The Act would provide consumer rights, such as access, notice, deletion, opting-out, correction, and a right to data portability. It also prohibits covered entities from discriminating against consumers who utilize some of the proposed rights. It will prohibit organizations from denying goods or services to individuals because they have exercised any of their rights as set forth in the bill.

Implementation of the bill would be financed through a $100 million appropriation to the Federal Trade Commission (FTC) to enforce its provisions. Therefore, the FTC would gain the authority to obtain injunctions and impose other sanctions for violations.

Integrating Other Privacy Bill Provisions.

The SAFE DATA Act incorporates three main bill provisions into the proposal.

First, it includes the Filter Bubble Transparency Act (don’t ask). It requires a notice on public-facing websites that use algorithmic ranking systems

Second, it contains provisions from the Deceptive Experiences To Online Users Reduction (“DETOUR”) bill (ouch!). This provision makes it unlawful for an online service with more than 100 million authenticated users to use a user interface to impair user autonomy.

Third, like the United States Consumer Data Privacy Act (CDPA), the proposal requires companies to obtain affirmative, express consent from the customer before processing or transferring individuals’ sensitive data.

According to Julie Brill, former Commissioner of the FTC, a comprehensive privacy law would also address consent and collection issues related to COVID-19 health data, while at the same time promoting racial equality and prohibiting data discrimination. Boy, that’s great; who knew this was likely to be accomplished in our lifetimes.

View the proposed Safe Data Act in full.

You may also read one of my prior blogs to learn more about HIPAA privacy rights violations and medical confidentiality.


Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Cox, Ayeisha. “Lawmakers Introduce the SAFE DATA Act.” American Health Lawyers Association (AHLA). (October 2, 2020). Web.

Traylor. Christian. “Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?” JD Supra. (September 29, 2020). Web.

Panakal, Dominic Dhil. “Senate Republicans Stitch Together Safe Data Ideas into New Bill.” The National Law Review. (September 24, 2020).

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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 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.

Eight Legal Tips If You Are Having Academic, Disciplinary or Legal Problems with Your Residency Program

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

Here are some tips to set the record straight on various inaccurate information I have heard from physicians in medical residency programs in representing them in appeals of disciplinary actions including suspension and terminations.

1. Nothing you tell your Program Director, advisor, mentors, attendings, senior resident, or co-resident is confidential. Go ahead and pour your heart out about all of your problems and concerns, but none of it is confidential, even if you said it was “in confidence.” What is confidential: what you tell your priest or religious adviser (preacher, rabbi, imam) and what you tell your own personal physician or psychotherapist (unless you have signed a waiver) that you have hired and you are paying. Anyone else, it is not confidential. So if you tell your program director you were raped when you were younger, not confidential. If you tell your senior resident you suffer from panic attacks, not confidential. You tell your attending that you had cancer ten years ago, not confidential. This applies no matter what “magic words” you attach to it.

2. Take and use whatever time period is offered to you to retain counsel and prepare. If you are given ten (10) days to file an appeal or a request for hearing, take the full ten (10) days. Do not file it on the same day. Otherwise, you are using up valuable preparation time that you cannot get back.

3. Make sure that whatever you are required to file is actually received by the due date indicated. If a request for a hearing must be filed within fifteen (15) days, that means that it must be received within the fifteen days. Check after you send it or deliver it to make sure it has been successfully received.

4. It is never too early to hire an attorney. Hire an attorney to represent and advise you at the first sign of trouble. However, you must be sure to hire an attorney who is experienced in representing residents and fellows in disputes with graduate medical education programs. An experienced attorney can help you prepare any written submissions you make, organize your response and any documents you care to submit, and otherwise assist you in identifying what is relevant and what is not relevant.

5. Always read your program’s graduate medical education (GME) manual, residency manual, due process policy or whatever handbook or manual contains your hearing and appeal rights. Be familiar with them and follow them.

6. If you are given remedial actions you must take, documents your completion of each one. Whether the requirement you must perform is in a corrective action plan (CAP), a remediation letter, or a probation letter, document your completion of it in writing and report it to whatever authority gave you the requirement. Send a courtesy copy (“cc”) to your program director.

7. Make sure any correspondence you send to anyone is complete, correct and in the form of a professional business letter. Make sure it meets all of the requirements of a professional business letter. This is especially true for rebuttals, appeals, hearing requests, etc. What, you don’t know what this is? Then go online and Google it. Your letter should look very similar to any letter you received from your program director or institution. Be sure it has all of your return contact information on it as well as a date. Do not start your letter with “Hi,” “Hello,” or “Good day.” Do place a reference (“Re:”) line or subject line on your letter that states what the subject of your letter is.

8. Do not be afraid to appeal, file a discrimination complaint or exercise any of your legal rights. Often I hear from residents, after they are already terminated from their program, that they are afraid to get a lawyer involved. I usually ask: “What are you afraid of? What is the worst that can happen? You have already been terminated.” Remember, also, that if your program retaliates against you for exercising any of your rights, that is illegal. The ACGME would like to hear about that and in almost all cases, you will then have a legal cause of action upon which you can sue the program.

Contact a Health Care Attorney Experienced in the Representation of Medical Resident Physicians, Fellows, Medical Students, Dental Students and Residents, Pharmacy Students and Residents, Mental Health Counselor Interns, and other health professionals. The attorneys of The Health Law Firm, also represent those applicants accused of irregular behavior by the National Board of Medical Examiners (NBME), the United States Medical Licensing Examination (USMLE) Secretariat, and the Educational Commission for Foreign Medical Graduates (ECFMG), in responses, hearings and appeals, including on charges of “unprofessional conduct” and “improper behavior.”

The Health Law Firm and its attorneys have experience representing such individuals and those in graduate medical education programs in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation, and any other matters.

To contact The Health Law Firm please call (407) 331-6620 or toll-free at (888) 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 the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

KeyWords: Irregular behavior defense lawyer, irregular conduct legal representation, graduate medical education (GME) defense attorney, resident physician legal representation, resident physician defense attorney, legal counsel for resident physician, international medical graduate attorney, graduate medical education defense lawyer, lawyer for medical students, medical resident physician attorney, residency program legal dispute lawyer, residency program litigation attorney, legal dispute with medical school lawyer, medical student legal counsel, disruptive physician attorney, impaired medical student legal counsel, impaired resident legal defense attorney, United States Medical Licensing Examination (USMLE) defense lawyer, USMLE defense attorney, National Board of Medical Examiners (NBME) defense counsel, Educational Commission for Foreign Medical Graduates (ECFMG) defense lawyer, ECFMG defense attorney, legal representation for USMLE investigations, legal representation for NBME investigations, legal representation for irregular behavior, irregular behavior defense attorney, irregular behavior defense counsel, health law attorney, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, Philadelphia attorney for ECFMG hearing, Philadelphia lawyer for NBME hearing, Philadelphia legal counsel for USMLE hearing

“The Health Law Firm” is a registered fictitious business name and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

 

 

 

 

 

 

 

Florida Dentist’s COVID-19 Interruption Insurance Claim Dismissed by Judge

George Indest Headshot

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

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

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

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

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

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

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

KeyWords: healthcare employment law representation, legal representation for physicians, doctor defense legal representation, legal representation for healthcare professionals, complex health care litigation attorney, complex civil litigation attorney, complex healthcare litigation lawyer, complex medical litigation lawyer, representation for complex medical litigation, representation for healthcare business litigation matters, business insurance representation, business interruption insurance claims defense, COVID-19 business insurance claim representation, The Health Law Firm, reviews of The Health Law Firm Attorneys, The Health Law Firm attorney reviews, legal representation for physicians and health care professionals, attorney for physician suits against insurers, complex medical business litigation against health insurers

“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.

 

Senate Republicans Reveal Sweeping New Legislation: The SAFE DATA Act

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

On September 17, 2020, Republican members of the Senate Commerce Committee introduced sweeping federal privacy legislation. The proposed law is called the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The Act is a combination of bills previously introduced in the Senate: the Consumer Data Protection Act, Filter Bubble Transparency Act, and the Deceptive Experiences to Online Users Reduction Act. It hasn’t passed, yet, so let’s wait and see.

HAH! You thought you had learned all of the acronyms and abbreviations because you know what HIPAA, HITECH, FERPA, USCDPA, and FOIA mean. Let’s see how long it takes you to remember what this one stands for.

Details of the SAFE DATA Act.

This proposed legislation has three main components if passed into actual law. It:

1. Provides consumers with more choice and control over their data (allegedly),
2. Directs business to be more transparent and accountable (allegedly), and
3. Strengthens the FTC’s enforcement power (allegedly).

The Act would provide consumer rights, such as access, notice, deletion, opting-out, correction, and a right to data portability. It also prohibits covered entities from discriminating against consumers who utilize some of the proposed rights. It will prohibit organizations from denying goods or services to individuals because they have exercised any of their rights as set forth in the bill.

Implementation of the bill would be financed through a $100 million appropriation to the Federal Trade Commission (FTC) to enforce its provisions. Therefore, the FTC would gain the authority to obtain injunctions and impose other sanctions for violations.

Integrating Other Privacy Bill Provisions.

The SAFE DATA Act incorporates three main bill provisions into the proposal.

First, it includes the Filter Bubble Transparency Act (don’t ask). It requires a notice on public-facing websites that use algorithmic ranking systems

Second, it contains provisions from the Deceptive Experiences To Online Users Reduction (“DETOUR”) bill (ouch!). This provision makes it unlawful for an online service with more than 100 million authenticated users to use a user interface to impair user autonomy.

Third, like the United States Consumer Data Privacy Act (CDPA), the proposal requires companies to obtain affirmative, express consent from the customer before processing or transferring individuals’ sensitive data.

According to Julie Brill, former Commissioner of the FTC, a comprehensive privacy law would also address consent and collection issues related to COVID-19 health data, while at the same time promoting racial equality and prohibiting data discrimination. Boy, that’s great; who knew this was likely to be accomplished in our lifetimes.

View the proposed Safe Data Act in full.

You may also read one of my prior blogs to learn more about HIPAA privacy rights violations and medical confidentiality.


Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Cox, Ayeisha. “Lawmakers Introduce the SAFE DATA Act.” American Health Lawyers Association (AHLA). (October 2, 2020). Web.

Traylor. Christian. “Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?” JD Supra. (September 29, 2020). Web.

Panakal, Dominic Dhil. “Senate Republicans Stitch Together Safe Data Ideas into New Bill.” The National Law Review. (September 24, 2020).

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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 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.

Senate Republicans Announce Comprehensive Privacy Legislation: The SAFE DATA Act

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

On September 17, 2020, Republican members of the Senate Commerce Committee introduced sweeping federal privacy legislation. The proposed law is called the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act. The Act is a combination of bills previously introduced in the Senate: the Consumer Data Protection Act, Filter Bubble Transparency Act, and the Deceptive Experiences to Online Users Reduction Act. It hasn’t passed, yet, so let’s wait and see.

HAH! You thought you had learned all of the acronyms and abbreviations because you know what HIPAA, HITECH, FERPA, USCDPA, and FOIA mean. Let’s see how long it takes you to remember what this one stands for.

Details of the SAFE DATA Act.

This proposed legislation has three main components if passed into actual law. It:

1. Provides consumers with more choice and control over their data (allegedly),
2. Directs business to be more transparent and accountable (allegedly), and
3. Strengthens the FTC’s enforcement power (allegedly).

The Act would provide consumer rights, such as access, notice, deletion, opting-out, correction, and a right to data portability. It also prohibits covered entities from discriminating against consumers who utilize some of the proposed rights. It will prohibit organizations from denying goods or services to individuals because they have exercised any of their rights as set forth in the bill.

Implementation of the bill would be financed through a $100 million appropriation to the Federal Trade Commission (FTC) to enforce its provisions. Therefore, the FTC would gain the authority to obtain injunctions and impose other sanctions for violations.

Integrating Other Privacy Bill Provisions.

The SAFE DATA Act incorporates three main bill provisions into the proposal.

First, it includes the Filter Bubble Transparency Act (don’t ask). It requires a notice on public-facing websites that use algorithmic ranking systems

Second, it contains provisions from the Deceptive Experiences To Online Users Reduction (“DETOUR”) bill (ouch!). This provision makes it unlawful for an online service with more than 100 million authenticated users to use a user interface to impair user autonomy.

Third, like the United States Consumer Data Privacy Act (CDPA), the proposal requires companies to obtain affirmative, express consent from the customer before processing or transferring individuals’ sensitive data.

According to Julie Brill, former Commissioner of the FTC, a comprehensive privacy law would also address consent and collection issues related to COVID-19 health data, while at the same time promoting racial equality and prohibiting data discrimination. Boy, that’s great; who knew this was likely to be accomplished in our lifetimes.

View the proposed Safe Data Act in full.

You may also read one of my prior blogs to learn more about HIPAA privacy rights violations and medical confidentiality.


Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Cox, Ayeisha. “Lawmakers Introduce the SAFE DATA Act.” American Health Lawyers Association (AHLA). (October 2, 2020). Web.

Traylor. Christian. “Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?” JD Supra. (September 29, 2020). Web.

Panakal, Dominic Dhil. “Senate Republicans Stitch Together Safe Data Ideas into New Bill.” The National Law Review. (September 24, 2020).

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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 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.

Laws Governing ESAs and Service Animals, Part 3 of 3

By Amanda I. Forbes, J.D.

This is part 3 of 3 in a blog series regarding the differences between Service Animals and Emotional Support Animals. Read part 1 and part 2.

The Fair Housing Act (FHA) is a federal law that “prohibits discrimination in housing because of: race or color, national origin, religion, sex, familial status, and disability.” (Emphasis added). It applies to both emotional support animals and service animals. (“emotional illness.”)
Click here to learn more.

In addition, the FHA states it is unlawful to:

[D]iscriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap.

42 U.S.C. Section3604(f)(1).

It also prohibits discrimination:

[A]gainst any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap . . .

42 U.S.C. Section 3604(f)(2).

For purposes of the FHA, discrimination includes a refusal to make:

[R]easonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

42 U.S.C. Section 3604(f)(3)(B).

The FHA is applicable to virtually all forms of housing. However, there are some exemptions:

1) Owner-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker, and housing operated by organizations and private clubs.
2) Single-family housing sold or rented without the use of a broker.
3) Housing operated by organizations and private clubs that limit occupancy to members.

The Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) have the power to enforce the Fair Housing Act. Generally, an individual with a disability may have a “reasonable accommodation” to a landlords “no pets policy”

According to the U.S. Department of Housing and Urban Development a “reasonable accommodation” is:

A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces . . . . The Act makes it unlawful to refuse to make reasonable accommodation to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.
To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.

To learn more about reasonable accommodation, click here.

The American With Disabilities Act (ADA).

Under the ADA, in situations where it may not be readily apparent that an animal is a service animal the individual may be asked two questions by an establishment’s employees:

1) Is the service animal a requirement due to a disability?
2) What work has the animal been trained to perform?

Employees are not allowed to ask for documentation for the service animal or require the animal to demonstrate its function or inquire about the nature of the owner’s disability.

Under the ADA, 29 CFR Part 1630.2(k)(3), a “reasonable accommodation” is:

An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability. For example, an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.

29 CFR Part 1630.2(k)(3)

Emotional support animals are not considered service animals under the ADA.

The Air Carrier Access Act (ACAA).

The ACAA requires that airlines allow both service animals as well as emotional support animals to accompany their owners in the cabin of the aircraft.

Similar to the ADA, if an air carrier’s employee is not sure if an animal is a service animal they may “ask to see identification cards, written documentation, presence of harnesses or tags, or ask for verbal assurances” from the owner. Click here for more information on service animals.

In addition, you may be asked one of the following:

1) What tasks or functions does your animal perform for you?
2) What has your animals been trained to do for you?
3) Would you describe how the animal performs this task for you?

Regarding individuals who have emotional support animals and want their ESA to accompany them in the aircraft cabin the ACAA states the following:

e) If a passenger seeks to travel with an animal that is used as emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor specifically treating the passenger’s mental or emotional disability) stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM IV);

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination;

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

(4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.

14 CFR Section 382.117(e) and (f). (Emphasis added).

Therefore, it would be wise to advise your clients that they should contact that airline well in advance of their flight in order to find out what documentation is required for their ESA to travel with them. Particularly, if the ESA is of the exotic variety.

On the topic of exotic ESAs or service animals, the ACAA states:

(f) You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight’s destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.

It is also important to note that:

(g) Whenever you decide not to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing. A copy of the explanation must be provided to the passenger either at the airport or within 10 calendar days of the incident.

14 CFR Section 382.117(g). (Emphasis added).

Additionally, the airline cannot charge you for your reasonable accommodation of an ESA or a service animal.

According to 14 CFR Section 382.31(a):

Except as otherwise provided in this part you must not, as a carrier, impose charges for providing facilities, equipment, or services that this rule requires to be provided to passengers with a disability. You may charge for services that this part does not require.

14 CFR Section 382.31(a)

Florida Specific Law.

In Florida, a new law SB 1084 was enacted on June 23, 2020, and became effective on July 1, 2020. SC 1084 establishes what can be considered reliable information for an ESA it also creates a civil penalty for falsification of documentation used to support the need for an ESA.

In addition, it defines an “Emotional Support Animal” as:

An animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.

SB 1084. Emphasis added.

Of particular note, SB 1084 states:

A person with a disability or a disability-related need is liable for any damage done to the premises or to another person on the premises by his or her emotional support animal.

Check with your state and local laws in order to ensure you are in compliance with your state’s laws regarding emotional support animals and service animals. Don’t forget to read part 1 and part 2 in this blog series.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, social workers, and family therapists in Department of Health (DOH) 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 toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

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. If allowed, 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.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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

About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

“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.

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