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

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

Pharmacy Investigations.

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

Clash Over Patient Privacy.

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

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

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

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

The Decision.

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

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

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

States Must Act to Protect the Integrity of Such Programs.

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

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

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

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

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

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

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

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

Sources:

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

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

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

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

“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.

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Civil and Criminal Enforcement of HIPAA Privacy and Security Regs on the Rise

George Indest Headshot

Attorney George F. Indest III, The Health Law Firm

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

The Office of Civil Rights (OCR), a division within the U.S. Department of Health and Human Services (HHS), is the federal organization responsible for investigating complaints and enforcing the Privacy and Security Regulations implementing the Health Insurance Portability and Accountability Act, commonly referred to as “HIPAA.”

As the COVID-19 pandemic seems to be leveling off and more employees are going back to the office, and into the field, HIPAA complaint investigations will definitely pick up. Furthermore, criminal prosecutions for violations of HIPAA have recently been on the rise as well.

OCR’s Investigations and Enforcement Actions.

OCR enforces the HIPAA Privacy and Security Regulations in several ways:

The first method it has is the receiving and investigating of HIPAA violation complaints. These can easily be filed online by going to https://www.hhs.gov/hipaa/filing-a-complaint/.

If you receive a notice from the OCR that it is investigating a HIPAA complaint against you, it will request a large number of various documents relating to the matter. It is crucial that you retain the services of an experienced health lawyer to assist you in responding. Often, it will not be necessary to provide all of the documents requested by OCR, if your attorney determines that certain legal grounds exist for avoiding this. Regardless, you should seek legal counsel, anyway, since both criminal and civil sanctions may result.

OCR Also Conducts Compliance Audits.

OCR conducts compliance reviews to determine if covered entities are in compliance. Covered entities include, for example, physicians, medical groups, nurse practitioners (in most cases), psychologists, mental health counselors (in most cases), pharmacists, health clinics (in most cases), assisted living facilities (ALFs), home health agencies (HHAs), hospitals, and many others.

OCR reviews the information that it gathers through its investigation or audit. In some cases, it may determine that the covered entity did not violate the Privacy Regulations or the Security Regulations. However, in the case of the covered entity’s violation, OCR may do any of the following:

Dismissing the matter or taking no further action.

Obtaining the Covered Entity’s agreement for voluntary compliance going forward.

Obtaining corrective action through a corrective action plan (CAP).

Negotiating a resolution agreement (RA).

Assessment of civil penalties (monetary fines).

Referral to the Department of Justice (DOJ) for further investigation and criminal prosecution.

Civil Violations.

In cases of noncompliance where the covered entity does not satisfactorily resolve the matter, OCR may decide to impose civil money penalties (CMPs) on the covered entity. It can then take further administrative or civil litigation action to enforce these if they are not paid.

Civil monetary penalties for HIPAA violations are determined based on a tiered civil penalty structure. The HHS secretary has discretion in determining the amount of the penalty based on the nature and extent of the violation and the nature and extent of the harm resulting from the violation. HHS is prohibited from imposing civil monetary penalties (except in cases of willful neglect) if the violation is corrected within 30 days (this time period may be extended at HHS’s discretion). So it is imperative to retain an attorney and get on top of the situation fast.

The range of penalties for civil violations.

HIPAA violation: Unknowing
Penalty range: $100 – $50,000 per violation, with an annual maximum of $25,000 for repeat violations

HIPAA violation: Reasonable Cause
Penalty range: $1,000 – $50,000 per violation, with an annual maximum of $100,000 for repeat violations

HIPAA violation: Willful neglect but corrected (violation is corrected within the required time period)
Penalty range: $10,000 – $50,000 per violation, with an annual maximum of $250,000 for repeat violations

HIPAA violation: Willful neglect, not promptly corrected (violation is not corrected within the required time period)
Penalty range: $50,000 per violation, with an annual maximum of $1.5 million

Criminal penalties for violations.

In June 2005, DOJ clarified who can be held criminally liable under HIPAA. Its clarification included officers, employees, and other principles of business entities (corporations and companies) that are covered entities, including co-conspirators, aiders, and abettors of the acts.

Criminal violations of HIPAA are investigated and prosecuted by DOJ. As with the civil penalties, there are different criminal penalties based on the level of severity of the criminal violation.

Covered entities and specified other individuals who knowingly obtain or disclose individually identifiable health information, in violation of the Administrative Simplification Regulations to the HIPAA Regulations, face a fine of up to $50,000, as well as imprisonment for up to one (1) year.

Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five (5) years in prison.

Finally, offenses committed with a profit motive, in other words, with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm permit fines of $250,000 and imprisonment up to ten (10) years.

What is a “Covered Entity?”

One thing to remember is that HIPAA and its enforcing regulations only apply to “covered entities” with certain minor exceptions. The following are examples of “covered entities”:

Health plans (e.g., health insurers, HMOs, PPOs)

Health care clearinghouses

Health care providers who transmit claims in electronic form (this will cover almost all health facilities and health professionals)

Medicare prescription drug card sponsors

Individuals such as directors, employees, or officers of a covered entity (where the covered entity is not an individual) may criminally liable under HIPAA per the “corporate criminal liability” theory.

 

Criminal Penalties for HIPAA Violations.

Yes, there are criminal penalties, including prison for up to ten (10) years, possible for HIPAA violations.

To read an earlier blog I wrote on criminal penalties for HIPAA violations, please click here.

What is the Definition of “Knowingly?”

The DOJ interprets the required element of “knowingly” in the criminal liability section of HIPAA as requiring only knowledge of the actions that constitute an offense. Specific knowledge that an action is a violation of HIPAA is not required.

Can a HIPAA Violation Lead to Exclusion from the Medicare Program?

HHS has the authority to exclude from participation in Medicare any covered entity that was not compliant with certain HIPAA Regulations under certain circumstances. Call your healthcare lawyer for details on this.

For information on the effects of exclusion from any government-sponsored healthcare program on a doctor, nurse, dentist, or any other health provider, visit our website’s Health Law Articles and Documents page to view the OIG’s Special Advisory Bulletin.

 

The Administrative Simplification Act Simplifies it All.

The Administrative Simplification Act sought to clarify and simplify parts of HIPAA and increase specific penalties for violations. Title 42, United States Code, Chapter 7, Subchapter XI, Part C (Administrative Simplification Act).

The Administrative Simplification Regulations authorize a fine of up to $50,000, as well as imprisonment up to one year. Offenses committed under false pretenses allow penalties to be increased to a $100,000 fine, with up to five years in prison. Finally, offenses committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm permits fines of $250,000 and imprisonment for up to 10 years.

Misuse and Disclosure of “Unique Health Identifiers.”

The wrongful use of a unique health identifier can be charged as a violation of 42 U.S.C. § 1320d–6(a)(1) and (b)(1)), the penalty provision of which is set forth in 42 U.S.C. § 1320d–6(b)(1). “Unique health identifier” includes a patient’s name, address, social security number, insurance member ID number, description of health history, and description of the patient’s symptoms.

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.

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 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 © 2021 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

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

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

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 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.

“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.

DOJ Charges 345 People Allegedly Involved in More Than $6 Billion in Healthcare Fraud, Mostly Related to Telemedicine and Opioid Prescriptions

George F. Indest III with 30+ years experience, is board certified by the Florida Bar in Health Law.By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In September 2020, federal prosecutors charged 345 doctors, nurses, and other medical professionals allegedly involved in more than $6 billion in healthcare fraud. It is considered the largest Health Care Fraud and Opioid Enforcement Action in the Department of Justice’s history (DOJ). The schemes were related to telemedicine, illegal opioid distribution, and durable medical equipment, the DOJ said.

A National Fraud Operation.

According to the DOJ, the 345 defendants were responsible for submitting false and fraudulent claims that cost more than $6 billion to federal health care programs and private insurers. It included $4.5 billion related to telemedicine fraud, $1.5 billion connected to sober homes, and over $806 million linked to illegal opioid distribution and other forms of Medicare fraud.

Telemedicine fraud charges made up the bulk of the nationwide bust. A total of 86 defendants were telehealth executives who allegedly paid medical professionals to order unnecessary amounts of durable medical equipment, genetic tests, and pain medications.

The sober homes cases include charges against more than 12 defendants for allegedly submitting false claims for tests and treatments for patients with drug and alcohol problems. The defendants allegedly paid illegal kickbacks and bribes for the referral of hundreds of patients to substance abuse treatment facilities.

Similarly, included in the charges were health professionals and others involved in distributing more than 30 million doses of opioids and other prescription narcotics. These charges have already resulted in guilty pleas by more than 240 of the defendants.

The historic law enforcement action was put in motion in April 2020 and aimed to crack down on classic health care fraud schemes. The DOJ executes “takedowns” every year to spotlight concerns about fraud in certain areas by grouping similar schemes together. Since its establishment in 2007, it has charged more than 4,200 defendants who defrauded Medicare for more than $19 billion, the agency said.

Click here to read the press release issued by the DOJ.

To read about a similar record-breaking telehealth fraud case in Florida, click here.

Contact Health Law Attorneys Experienced in Handling Medicare Audits, Investigations and other Legal Proceedings.

The attorneys of The Health Law Firm represent healthcare providers in defending audits and investigations by the Department of Health and Human Services, the Department of Justice, The Drug Enforcement Administration (DEA), the Florida Department of Health (DOH), the Colorado Department of Regulatory Agencies, Medicaid Fraud Control Unit (MFCU), state boards of medicine, state boards of pharmacy, and state boards of nursing. They also represent health professionals and providers in administrative litigation (state and federal) and civil litigation (state and federal). They represent physicians, nurses, medical groups, nursing homes, home health agencies, pharmacies, dentists, pharmacies, assisted living facilities, and other healthcare providers and institutions in recovery actions and termination from Medicare and Medicaid Programs.

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

Sources:

Allen, Jackie. “DOJ charges 345 people involve in more than $6 billion healthcare fraud.” USA Herald. (October 3, 2020). Web.

Stawicki, Keven. “DOJ Charges 345 In Health Fraud Schemes Topping $6B.” Law360. (September 30, 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 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 © 2021 The Health Law Firm. All rights reserved.

Law in Florida Allows Limited Pharmacist Medical Practice with Practice Agreements

Attorney Michael L. SmithBy Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law
A new Florida law allows pharmacists to practice medicine to a certain extent underwritten collaborative practice agreements with physicians who are licensed to practice medicine or osteopathic medicine in Florida. The new law, signed by Governor DeSantis, took effect on July 1, 2020. However, the initial 20-hour course required by the law has not been approved as of July 22, 2020. Also, the Florida Board of Pharmacy has not adopted the formulary of approved medicinal drugs that are required by the law, as of this writing on July 22, 2020.

What Pharmacists Need to Know About the New Law.

Pharmacists practicing under a collaborative practice agreement with a physician will be permitted to test, screen for, and treat some nonchronic health conditions. The nonchronic health conditions a pharmacist is permitted to treat under a collaborative practice agreement are influenza, streptococcus, lice, skin conditions, and minor infections.

Pharmacists will also be able to initiate, modify, or discontinue drug therapy for chronic health conditions under a written collaboration agreement with a physician. The chronic conditions a pharmacist will be able to treat are arthritis, asthma, COPD, type-2 diabetes, HIV or AIDS, and obesity. The collaborative practice agreement for chronic health conditions must be specific to a patient, or patients, of the supervising physician.

A pharmacist must be certified by the Florida Board of Pharmacy before practicing under a collaborative practice agreement. In order to be eligible for certification, the pharmacist must hold an unencumbered license to practice as a pharmacist in Florida. The pharmacist must also have a doctor of pharmacy degree or 5-years of experience as a licensed pharmacist.

Every pharmacist seeking certification to practice under a collaborative practice agreement will be required to complete an initial 20-hour course approved by the Board of Pharmacy, and complete additional continuing education hours for each license renewal. Pharmacists practicing under collaborative practice agreements will also be required to maintain professional liability coverage of at least $250,000.

Pharmacists will not be permitted to prescribe controlled substances. The new law requires the Florida Board of Pharmacy to adopt a formulary of medicinal drugs that pharmacists may prescribe under collaborative practice agreements with physicians.

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

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

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants, and other health professionals in investigations and at Board of Pharmacy hearings. Call our office now at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website www.TheHealthLawFirm.com.

About the Author: Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

Former University of Florida Professor and Researcher Charged With Fraud and Hiding China Ties

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

On February 3, 2021, a former University of Florida professor was indicted on allegations of fraudulently obtaining a federal grant from the U.S. by concealing his ties with the Chinese government. He is accused of fraudulently obtaining $1.75 million in federal grant money from the National Institutes of Health (NIH). He was able to do this by concealing support he received from the Chinese government and a company that he founded in China to profit from that research, according to the U.S. Department of Justice (DOJ).

The former professor is charged with six counts of wire fraud and four counts of making false statements to an agency of the United States.

A Scheme to Defraud National Institutes of Health and the University of Florida.

According to the indictment, the ex-professor obtained a $1.75 million grant from NIH to support his development work on an imaging informatics tool for muscles known as “MuscleMiner.” Additionally, he served as the principal investigator for the grant between September 2014 and July 2019. According to prosecutors, he was required to disclose any foreign research support and any financial conflicts of interest, including financial connections to foreign companies, but he failed to do so.

The indictment alleges that he concealed the information in order to keep his job at the University of Florida and continue to receive NIH grant money. Additionally, the ex-professor signed a document from UF’s College of Engineering in 2019 that said he had no affiliation with any business, business entity, or university in China. Prosecutors said that he left the United States in August of 2019 for China and has not returned.

Each wire fraud count carries a maximum penalty of 20 years in prison and a $250,000 fine. The maximum penalty for each count of making a false statement is five years in prison and a $250,000 fine. You can read the complaint in this case here.

To read the press release issued by the DOJ, click here.

Research Fraud, Grant Application Fraud, and Scientific Misconduct Allegations Have Serious Consequences.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of any scientific, medical, or clinical researcher. It can cause the researcher to lose grants, bonuses, and promotions; his or her employment may be terminated; and, as in this case, he or she may face criminal prosecution for fraud, theft, or other applicable crimes.

To learn more on clinical research fraud and misconduct, click here to visit our Areas of Practice Page on our website and read one of my prior blogs here.

Contact Health Law Attorneys Experienced in Defending Against Allegations of Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians, and clinicians who are the subject of clinical research fraud and misconduct allegations. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators, and “whistleblowers” who report such matters including those who become the victim of reprisals and retaliation by the person against whom the report is made.

Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing allegations of research misconduct, research fraud, medical investigation misconduct, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Clough, Chris. “Former Fla. Professor Charged With Fraud, Hiding China Ties.” Law360. (February 3, 2021). Web.

Swirko, Cindy. “Former Florida professor indicted for fraudulently obtaining $1.75M federal grant.” The Gainesville Sun. (February 5, 2021). 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. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

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By |2021-03-09T10:26:45-05:00March 30th, 2021|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

CVS Fined for Prescription Errors and Poor Staffing at Oklahoma Pharmacies

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

On July 16, 2020, the Oklahoma State Board of Pharmacy fined CVS, the nationwide pharmacy chain, $125,000, after auditors found safety issues and “chaotic” scenes at four of its pharmacies. State regulators in Oklahoma cited and fined the nation’s largest retail pharmacy chain for conditions including inadequate staffing and errors made in filling prescriptions. Hopefully, this was isolated to the few stores involved.

Pharmacy Complaints.

In four separate administrative orders, the Oklahoma State Board of Pharmacy said that auditors responded to complaints at each of the pharmacies for issues including long waiting times, wrong information on prescription refills, and dosage mistakes. The state board inspected the four pharmacies from mid-2019 to early 2020. In one case, the complaint said the pharmacy had put someone on hold on multiple occasions, sometimes as long as an hour. In another case, a woman said that when she got her medication refilled, the name and other information on the bottle she received was for someone else.

The pharmacy chains have pushed back on customer and employees’ complaints, saying staffing is sufficient and errors are rare.

Pharmacy Audits.

On multiple occasions, state auditors visiting the pharmacies said they found understaffed facilities, with the phone continuously ringing, employees working around unopened (and, we assume, un-inventoried) delivery boxes, and long lines at the drive-through windows. According to the orders, one pharmacy stated that it was normal for them to be as much as two weeks behind in filling prescriptions as a result of understaffing. It should be noted that the audits took place predominantly before the COVID-19 crisis.

Additionally, in letters to state pharmacy boards and in interviews, pharmacists working for CVS allegedly admitted that they struggled to keep up with an increasing number of tasks including filling prescriptions, giving flu shots, tending the drive-through window, answering phones, and calling patients. According to the orders, many said they also struggled to meet corporate performance metrics that they characterized as excessive and unsafe.

As a routine customer of CVS Pharmacy (not in Oklahoma, of course), I can sympathize with the pharmacists, pharmacy technicians, and clerks. In many places, pharmacists are now being required to administer a laundry list of vaccinations (literally, ten different vaccinations), practice medicine to a limited scope, contact prescribing physicians, constantly order out-of-stock drugs, order diagnostic tests, and answer all sorts of customer questions. Now, with the COVID-19 pandemic, there is a steady flow of coronavirus tests to administer to customers at the drive-through window. I see first-hand how difficult it is for these front-line healthcare professionals to keep up on a daily basis.

The Oklahoma Board said it “strongly recommended” that CVS follow through on nearly a dozen recommendations for all of its Oklahoma pharmacies, including increased training for technicians and changes to how staffing needs were determined. Additionally, the Oklahoma Board advised eliminating tasks that might overburden pharmacists and removing some metrics they are required to meet. For example, phone calls pharmacists often must make could be outsourced to a corporate call center.

In a statement, CVS Pharmacy said it agreed with the Board to settle the matter to avoid the lengthy and costly hearing process. The orders specify that CVS neither admits to nor denies the violations. The company agreed to pay the fines and to make other efforts to address the problems without contesting the allegations.

While the fine of $125,000 is relatively small for CVS, as it’s the country’s fifth-largest company, the move did validate the concerns raised at multiple drugstore chains by pharmacists who say workplaces are putting the public at risk.

You can read all four orders in this case here: CVS Order – Bartlesville, CVS Order – Choctaw, CVS Order – Moore, and CVS Order – Owasso.

Visit our Areas of Practice page on our website to learn more about Board of Pharmacy Representation and how we can assist Pharmacists and Pharmacies in these types of cases.

 

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

We routinely provide defense for pharmacists, pharmacies, and pharmacy technicians; defense to complaints filed against their licenses; defense to complaints filed by patients; defense in litigation against pharmacists, pharmacies, and technicians; legal representation and defense to DEA and Board of Pharmacy audits, investigations, and subpoenas; legal representation in depositions in criminal cases, negligence cases, civil cases, or disciplinary cases involving other health professionals. We have experience in dealing with HIPAA privacy complaints, audits, and investigations. We have experience in defending in Medicare, Medicaid, Tricare, and health insurance audits. We accept most professional liability insurance that pharmacists carry.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians, physician assistants, and other health professionals in investigations and at Board of Pharmacy hearings. Call our office now at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 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 © 2021 The Health Law Firm. All rights reserved.

Former University of Florida Professor and Researcher Charged With Fraud and Hiding China Ties

Attorney Carole C. Schriefer Headshot

CAROLE C. SCHRIEFER, J.D.

By Carole C. Schriefer, J.D.

On February 3, 2021, a former University of Florida professor was indicted on allegations of fraudulently obtaining a federal grant from the U.S. by concealing his ties with the Chinese government. He is accused of fraudulently obtaining $1.75 million in federal grant money from the National Institutes of Health (NIH). He was able to do this by concealing support he received from the Chinese government and a company that he founded in China to profit from that research, according to the U.S. Department of Justice (DOJ).

The former professor is charged with six counts of wire fraud and four counts of making false statements to an agency of the United States.

A Scheme to Defraud National Institutes of Health and the University of Florida.

According to the indictment, the ex-professor obtained a $1.75 million grant from NIH to support his development work on an imaging informatics tool for muscles known as “MuscleMiner.” Additionally, he served as the principal investigator for the grant between September 2014 and July 2019. According to prosecutors, he was required to disclose any foreign research support and any financial conflicts of interest, including financial connections to foreign companies, but he failed to do so.

The indictment alleges that he concealed the information in order to keep his job at the University of Florida and continue to receive NIH grant money. Additionally, the ex-professor signed a document from UF’s College of Engineering in 2019 that said he had no affiliation with any business, business entity, or university in China. Prosecutors said that he left the United States in August of 2019 for China and has not returned.

Each wire fraud count carries a maximum penalty of 20 years in prison and a $250,000 fine. The maximum penalty for each count of making a false statement is five years in prison and a $250,000 fine. You can read the complaint in this case here.

To read the press release issued by the DOJ, click here.

Research Fraud, Grant Application Fraud, and Scientific Misconduct Allegations Have Serious Consequences.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of any scientific, medical, or clinical researcher. It can cause the researcher to lose grants, bonuses, and promotions; his or her employment may be terminated; and, as in this case, he or she may face criminal prosecution for fraud, theft, or other applicable crimes.

To learn more on clinical research fraud and misconduct, click here to visit our Areas of Practice Page on our website and read one of my prior blogs here.

Contact Health Law Attorneys Experienced in Defending Against Allegations of Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians, and clinicians who are the subject of clinical research fraud and misconduct allegations. The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators, and “whistleblowers” who report such matters including those who become the victim of reprisals and retaliation by the person against whom the report is made.

Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing allegations of research misconduct, research fraud, medical investigation misconduct, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Clough, Chris. “Former Fla. Professor Charged With Fraud, Hiding China Ties.” Law360. (February 3, 2021). Web.

Swirko, Cindy. “Former Florida professor indicted for fraudulently obtaining $1.75M federal grant.” The Gainesville Sun. (February 5, 2021). 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 © 2021 The Health Law Firm. All rights reserved.

By |2021-03-09T10:45:54-05:00March 29th, 2021|Categories: Colorado Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Doctors Beware: Genetic Testing Scams Rip off Government Payers for Hundreds of Millions – Part 1 of 2

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

Several genetic testing companies have come into the spotlight for allegations of ripping off Medicare and False Claims Act (FCA) violations. Health care professionals need to be aware of these types of schemes and the dangers they may face if involved. In each of these cases, the companies agreed to pay a settlement in the millions to resolve allegations they submitted claims for unnecessary genetic testing.

This is part one of a two-part blog series. Click here for part two!

The Details.

On February 11, 2019, the Department of Justice (DOJ) announced that GenomeDx Biosciences Corp. (GenomeDx) agreed to pay $1.99 million to resolve FCA allegations. The false claims to Medicare were for a post-operative genetic test for prostate cancer patients. GenomeDx allegedly submitted claims for the genetic test to Medicare between September 2015 and June 2017. They were not medically reasonable nor necessary because the prostate cancer patients did not have risk factors necessitating the test. You can read the DOJ’s press release and learn more here.

In a similar case, on March 8, 2018, the U.S. Attorney announced a settlement with a California genetics testing company, Natera, Inc. The company agreed to pay $11 million to resolve FCA allegations for improperly billing TRICARE for non-invasive prenatal testing. According to the government, Natera improperly billed for genetic screenings to test a baby’s risk for certain disorders and syndromes. Natera allegedly used an improper billing code to misrepresent the services and screened patients with low-risk pregnancies who did not need it, according to the government. The suit was initiated by a pair of whistleblowers under the qui tam provisions of the FCA.

Click here to read the press release in full.

Consequences of These Types of Scams.

In both cases, the message is clear, “if you take advantage of programs like Medicare, you will be held accountable,” according to the government. Companies and providers who file false claims to generate more revenue are stealing from the taxpayers and those who rely on those federally funded programs.

Don’t allow your name, provider number, and NPI to be used for ordering illegal medically unnecessary tests, procedures or treatments. If you do, you may very well find yourself caught up in a similar FCA or other government investigation. These hefty settlements send a message that pursuing healthcare fraud is a priority to the DOJ. In 2018, it recovered more than $2.8 billion from FCA cases alone. Click here to learn more.

Be sure to continue with part two of this blog series to learn more about these types of fraud scams. Click here to read.

Contact Health Law Attorneys Experienced with FCA, Qui Tam or Whistle Blower Cases.

Attorneys with The Health Law Firm also represent physicians, clinics, health care professionals, and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We also represent doctors, nurses, and others as relators (whistleblowers) in bringing qui tam or whistleblower cases, as well. We represent health professionals and health facilities in complex litigation involving medical issues in state and federal courts.

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

Sources:

“Genetic Testing Company Settles Whistleblower Suit for $11.4M.” Constantine Cannon Lawyer Group. (March 14, 2018). Web.

“Whistleblower Suit Over Falsified Prenatal Test Billing Settles.” Allison Legal Law Firm. (March 11, 2018). Web.

Raymond, Nate. “Natera settles U.S. billing probe over prenatal gene tests for $11.4 mln.” Reuters. (March 12, 2018). 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. 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 © 2021 The Health Law Firm. All rights reserved.

By |2021-03-25T17:22:06-04:00March 25th, 2021|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Florida Judge Sides With AdventHealth, Allows Fraud Claims Over Multi-Million Dollar PPE Deal to Move Forward

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

On February 23, 2021, a federal court in Orlando, Florida, ruled that Adventist Health System Sunbelt (now known as AdventHealth, and which owns Florida Hospital, among others) could pursue claims it has over a bad $57.5 million deal to buy personal protective equipment (PPE). The defendants whom the hospital system is suing include Tomax Capital Management, Inc. (“Tomax”), a California corporation; a California attorney and his law firm; and others.

U.S. District Judge Paul G. Byron said the hospital system provided sufficient evidence that Tomax failed to deliver the promised PPE and then conspired to keep the $2 million which was not returned.

The PPE Contract.

According to the complaint in the case, the contract was for AdventHealth to purchase 10 million 3M N95 ventilator masks, according to the May 2020 complaint. Under the terms of the contract, the hospital was to pay a total of $57.5 million for 10 million 3M N95 masks to protect its workers during the Coronavirus pandemic. AdventHealth paid the $57.5 million into a California lawyer’s trust account. The 10 million masks were to be delivered to AdventHealth’s hospital in Orlando, Florida, by April 18, 2020. However, the masks never arrived.

Now, I just have to jump in and point out something. I don’t claim to have ironclad proof of it, but I have seen and read enough about 3M N95 masks on television and in the press while trying to purchase my own. I may be totally off on this figure, but I seem to remember around the beginning of the Coronavirus pandemic that 3M was only manufacturing approximately 1 million masks a month. So where someone would be able to come up with 10 million of these specific masks is mind-boggling to me. Let’s just say that this is my own opinion.

When the hospital system requested a refund of the $57.5 million it had paid, it claims it was only refunded $55.5 million, with $2 million missing in action. According to the complaint, AdventHealth never saw the remaining $2 million despite assurance from the attorneys involved in the deal that AdventHealth would get it back. Hence, the present lawsuit.

I mean, if you can’t trust an attorney nowadays, who can ya’ trust?

A Civil Conspiracy?

In its suit, AdventHealth makes various claims of breach of contract, conversion, and civil conspiracy and requests actual damages, punitive damages, and prejudgment interest. The conspiracy would involve the allegation that the attorney and law firm conspired with Tomax and others to deprive AdventHealth of the $2 million. Because AdventHealth alleged that it suffered damages in Florida, it was able to bring its case to the federal court here in Orlando.

Read the complaint filed in the U.S. District Court for the Middle District of Florida for more details.

Granted, $2 million isn’t a lot of money to some people, but it was obviously enough money to get these Defendants sued in federal court.

Judge Sides With the Hospital System’s Position on Motion to Dismiss Complaint.

The federal court judge denied a motion to dismiss the complaint filed by Tomax. In his order, the judge stated: “Plaintiff sufficiently pleads facts supporting the existence of a civil conspiracy that caused injury in Florida.” In addition to allowing the claims of the hospital system to move forward, the judge also ruled that the court has the authority to exercise personal jurisdiction over the attorney and law firm that was involved, under the state’s long-arm statute. To obtain more details, read the judge’s order denying the motion to dismiss.  Click here to visit our Areas of Practice page and learn more on how The Health Law Firm can assist you in legal cases like this.

PPE a “Hot Issue.”

In another recent pandemic-related case, OSHA began issuing fines to health care systems over PPE violations such as lack of proper equipment for their employees. We have also read a number of reports about companies and individuals being fined and injunctions being obtained by the Federal Trade Commission and the Food and Drug Administration over phony PPE being sold to Americans over the Internet.

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

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. The lawyers of The Health Law Firm are experienced in complex litigation in state and federal courts.

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

Sources:

Hale, Nathan. “AdventHealth’s Fraud Claim Over $57M PPE Deal Advanced.” Law360. (February 23, 2021). Web.

Bolado, Carolina. “AdventHealth Sues Attorney Over Failed $57.5M Masks Deal.” Law360. (May 29, 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.

“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.

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