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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Three People Charged For $109 Million Scheme to Defraud Medicare & HIPAA Violations

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

In October 2020, Massachusetts federal prosecutors charged three people for their alleged roles in a multi-million dollar plot to defraud Medicare. Two individuals allegedly collected patient data and sold it to the purported mastermind, who used it to submit $109 million in false claims.

The two individuals who allegedly obtained the patient information were both located in Florida, wouldn’t ya know. They were each charged with one count of receiving more than $1.6 million kickbacks in connection with a federal health care program. Prosecutors charged the third individual with criminal violations of the Health Insurance Portability and Accountability Act (HIPAA).

Fraudulently Collecting & Using Private Patient Information.

According to court documents, both individuals in Florida owned marketing companies that enlisted foreign call centers to contact Medicare beneficiaries. Using a prepared script, they allegedly asked the patients they called if they would be interested in receiving durable medical equipment (DME) such as knee braces or compression sleeves “at little to no cost.”

The call centers would then collect information, including the patient’s name, address, insurance number, Medicare number, and doctor’s name and address, prosecutors said. The information was then sold to the third individual, who filed fraudulent Medicare claims for DME that were never prescribed and not medically necessary.

According to court records, the alleged co-conspirators used the same patients’ information repeatedly through a different shell company each time. More than 1,000 of the claims were made under the names of deceased beneficiaries. Click here to view the criminal information in this case.

Read the DOJ’s press release on this case for additional information.

Also, you can read one of my prior blogs on a similar case in Florida.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare Issues Now.

The attorneys of The Health Law Firm represent durable medical equipment (DME) suppliers and other health care providers in Medicare audits, ZPIC audits, MAC audits, and RAC audits throughout Florida and across the U.S. They also health care providers in qui tam or False Claims Act (whistleblower) litigation and in other complex medical litigation. They also represent DME suppliers, physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, and termination from the Medicare or Medicaid programs, They represent health care providers in formal and informal administrative hearings, federal or state.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Sinay, Reenat. “Feds Charge 3 In Alleged $109M Medicare Fraud Scheme.” Law360. (October 2, 2020). Web.

Szaniszlo, Marie. “Three charged in multi-million dollar fraud scheme.” Sentinel Enterprise. (October 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 the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, 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

By |2021-02-24T10:50:35-05:00April 7th, 2021|Categories: Mental Health Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Ex-Kaiser Permanente Employee Claims Disability Discrimination In ADA Suit

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 November 4, 2020, a former employee of Kaiser Permanente Insurance filed a class-action suit in the U.S. District Court for the Northern District of Georgia, claiming discrimination. She says the company required her to take a “competency test” to determine if she could keep her job after the Atlanta business learned of her medical disability (anxiety and depression). The suit claims that the insurance company refused to accommodate her disability and fired her after she failed.

Alleged Disability Discrimination.

The plaintiff worked for Kaiser Permanente Georgia Region between October 2010 and August 2020. According to the lawsuit that was filed, she was diagnosed with anxiety and depression in 2018 and in May 2019 but was cleared by her physician to work. According to the suit, Kaiser Permanente singled her out, forced her to disclose her anxiety and depression, and required her to take a “competency test” for a job she already held. It is worth noting that mental conditions such as “anxiety and depression,” are protected by the Americans with Disabilities Act (ADA).

In March 2019, the plaintiff requested a reasonable accommodation—i.e., a postponement of the testing until she was mentally stable enough to sit for the test. She claims her request was denied outright by Kaiser despite its knowledge of her disability. Per the complaint, the plaintiff was told that she had failed the competency test, despite never having received her scores. In August 2019, she was retested and Kaiser told her that she failed.

On November 8, 2019, the employee was terminated because she “no longer met the job requirements and was not successful at passing the second attempt of the competency test,” the complaint said.

Failure to Accommodate Under the ADA.

The former employee alleged disability discrimination, unlawful medical requests, and failure to accommodate her disabilities under the ADA. She’s seeking unspecified damages for loss of past and future income, mental anguish, and emotional distress, along with her court costs and attorney fees.

Click here to read the complaint in full.

For more information, read our prior blog on a similar case dealing with an insurance company that was sued for mental health discrimination.

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 nurses, resident physicians, mental health counselors, social workers, pharmacists, and health facilities. It also includes medical students, medical school professors, and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

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

Sources:

Konnath, Hailey. “Kaiser Permanente Hit With ADA Suit Over Competency Tests.” Law360. (November 4, 2020). Web.

Shaak, Erin. “Singled Out: Lawsuit Claims Kaiser Permanente Denied ‘Competency Test’ Accommodation for Ex-Employee with Disability.” Newswire. (November 5, 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 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

By |2021-02-24T12:31:18-05:00April 6th, 2021|Categories: Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Three Charged For Roles in Multi-Million Dollar Medicare Fraud Scheme, HIPAA Violations

George F. Indest III with 30+ years of experience, is Board Certified 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 October 2020, Massachusetts federal prosecutors charged three individuals for their alleged roles in a multi-million dollar plot to defraud Medicare. Two individuals allegedly collected patient health data and sold it to the purported mastermind, who then used it to submit $109 million in false Medicare claims.

Both individuals obtaining the personal health information were located in Florida, wouldn’t you know it. Each was charged with one count of receiving more than $1.6 million kickbacks in connection with a federal health care program. Prosecutors charged the third individual with criminal violations of the Health Insurance Portability and Accountability Act (HIPAA).

Stealing and selling personal health information is one of those HIPAA violations that will really, really get you in trouble. Very few people even know that such a HIPAA violation can be prosecuted as a federal felony crime.

Fraudulently Collecting & Using Patient Information.

According to court documents, both individuals in Florida owned marketing companies that enlisted foreign call centers to contact Medicare beneficiaries (which, I believe, I have received a number of). Using a prepared script, they allegedly asked if patients would be interested in receiving durable medical equipment (DME) such as knee braces or compression sleeves “at little to no cost.” (Does: “We are calling because of your back pain,” sound familiar?)

The call centers would then collect information including the Medicare patient’s name, address, insurance number, and doctor’s name and address, prosecutors said. The information was then sold to the third individual, who used it to file fraudulent Medicare claims for the DME that was never prescribed by a legitimate physician and was not medically necessary.

According to court records, the alleged co-conspirators used the same patients’ information repeatedly through a different shell company each time. More than 1,000 of the claims were made under the names of deceased beneficiaries. (Click here if you are deceased).

Click here to view the criminal information in this case.

Read the DOJ’s press release for more information.

Also, read one of my prior blogs on a similar case in Florida.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Health care Fraud Issues Now.

The attorneys of The Health Law Firm represent physicians, durable medical equipment (DME) suppliers, and other health care providers in Medicare audits, investigations and subpoenas, ZPIC audits, subpoenas and investigations, MAC audits, RAC audits, Department of Health (DOH) subpoenas and investigations, Department of Health and Human Services (DHHS) subpoenas and investigations, Medicaid Fraud Control Unit (MFCU) subpoenas, audits and investigations, OIG subpoenas, audits and investigations, and Department of Regulatory Agencies (DORA) subpoenas, audits, and investigations, in Florida, Colorado, Louisiana, the District of Columbia, Virginia, and throughout Florida and across the U.S. They also represent DME suppliers, physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions, termination from the Medicare or Medicaid program, and state and federal administrative hearings and litigation.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Sinay, Reenat. “Feds Charge 3 In Alleged $109M Medicare Fraud Scheme.” Law360. (October 2, 2020). Web.

Szaniszlo, Marie. “Three charged in multi-million dollar fraud scheme.” Sentinel Enterprise. (October 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 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

 

 

 

Multiple Settlements with HHS for HIPAA Security Rule Violations & Data Breaches

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

In September 2020, the Department of Health and Human Services (HHS) announced three settlements to resolve alleged violations of the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules. The settlements, totaling $10.6 million, stem from data breaches in which hackers were able to access and obtain individuals’ protected health information (PHI) from U.S. health providers. Combined, the three hacking incidents compromised the health information of more than 16 million patients.

Summary of the HIPAA Security Rule Settlements.

On September 21, 2020, the Office of Civil Rights, or OCR, the division of HHS which receives and investigates HIPAA complaints, announced a settlement with an orthopedic clinic in Georgia. The clinic agreed to pay $1.5 million after a 2016 hacking incident that compromised over 200,000 patient records. Part of the settlement included a Corrective Action Plan, or CAP, which the clinic agreed to adopt, to help prevent future breaches of privacy. Click here to view the resolution agreement and Corrective Action Plan (CAP).

On September 24, 2020, the OCR publicized a settlement with an information technology (IT) and health information management company. The business agreed to pay $2.3 million to settle claims of systemic security rule violations relating to a 2014 hacking incident impacting the personal health information (PHI) of more than 6 million individuals. Click here to read the settlement agreement.

Days later, the OCR released information about a $6.85 million settlement with Premera Blue Cross, the largest health plan in the Pacific Northwest. The settlement, the second largest to date, related to a 2015 cyber-attack which exposed the health information of more than 10 million individuals. To read the resolution agreement in full, click here.

In regard to these settlements, the OCR alleged that the following security rule violations had occurred:

1. Failure to conduct an adequate and thorough risk analysis;

2. Failure to implement sufficient mechanisms to record and examine system activities;

3. Failure to enter into business associate agreements with vendors with access to electronic protected health information;

4. Failure to implement reasonable security measures to reduce risks and vulnerabilities;

5. Failure to respond to and document a known security incident;

6. Failure to implement technical policies and procedures regarding access; and

7. Failure to implement procedures to regularly review system activity logs and reports.

Readers could use the above as a compliance checklist to make sure their own systems of records are being properly protected.

Consequences of HIPAA Rule Noncompliance.

The HIPAA Security Rule establishes a set of national standards for confidentiality, integrity, and availability of e-PHI. HHS is responsible for administering and enforcing these standards, along with enforcement of the HIPAA Privacy Rule. Therefore, the agency may conduct complaint investigations and compliance reviews. To learn more details about the HIPAA Security Rule, click here.

HHS looks for systems failures, prior breaches, missing risk analyses, or absence of or inadequate HIPAA policies. Without question, any compliance violations will result in an enforcement action. And as these three settlements have demonstrated, enforcement can be costly.

Don’t Wait Until It’s Too Late, Protect Yourself from HIPAA Security Rule Compliance Violations.

Businesses and organizations need to acknowledge the need to act and create a HIPAA security rule compliance plan. Locating existing security policies and the last completed risk analysis is an essential step in compliance. If it’s been over a year, perform or update risk analysis to identify risks or vulnerabilities on all systems that contain any e-PHI. Security rule compliance requires regular attention and detailed records. Take steps now to help protect e-PHI from data breaches, and avoid millions of dollars in settlements or fines.


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

The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals, and other healthcare providers and institutions to investigate and defend alleged HIPAA complaints and violations and prepare Corrective Action Plans (CAPs). Our attorneys regularly defend OCR HIPAA audits, defend in HIPAA complaint investigations, assist in preparing a HIPAA Risk Analyses, defend in federal administrative actions and administrative hearing cases, and defend in civil or administrative litigation of HIPAA/breach of medical confidentiality law suits.

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:

Kraus, Anna and Carrier, Tara. “HHS Announces Multiple HIPAA Settlements Related to Data Breaches and the Right of Access Initiative.” Lexology. (October 6, 2020). Web.

Castricone, Dena. “The Crushing Cost Of HIPAA Security Rule Noncompliance.” Law360. (October 1, 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

Judge Says Florida Pediatric Group Must Face EEOC Suit

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

On November 4, 2020, a Florida federal court judge ruled that a Tampa-based pediatric medical group cannot escape a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit, denying its attempts to dismiss the case. According to the federal agency, Pediatric Health Care Alliance unlawfully retaliated against a nurse after the nurse reported a doctor for sexual harassment. U.S. District Judge Thomas Barber denied the medical group’s motion to dismiss, saying it neglected to confront or defend against the nurse’s claim that the medical group demoted her as punishment.

The EEOC Complaint: Nurse Forced to Quit After Reporting Sexual Harassment.

On June 22, 2020, the EEOC filed an employment lawsuit in the United States District Court for the Middle District of Florida. According to the complaint, a female nurse at Pediatric Alliance reported that a doctor at the company inappropriately touched her on two different occasions. Notably, that doctor was also the Vice President (VP) of the company.

According to the suit, the nurse suffered almost immediate retaliation for filing the complaint against the VP. The EEOC alleges that Pediatric Alliance transferred her to a different location against her wishes, replaced her nursing duties with administrative ones, and docked her pay. As a direct consequence of the retaliation, the EEOC contends that the long-time employee was, in effect, forced to resign.

To read the EEOC’s press release on the lawsuit, click here.

To read the EEOC’s lawsuit, in this case, click here.

Retaliation for filing A Sexual Harassment Complaint is Unlawful, Even if it Later Turns Out the Complaint Wasn’t Valid: Title VII of the Civil Rights Act.

Under federal law (Title VII of the Civil Rights Act of 1964), employees have a legal right to raise workplace discrimination or harassment complaints. If an employee exercises this right, their company or organization is strictly prohibited from retaliating against them for doing so. Employers cannot take adverse employment action against an employee in retaliation for making a formal or informal complaint of harassment.

Adverse action occurs when an employee is penalized or punished in some form. In this case, transferring the nurse to a less desirable location, reducing salary, and taking away job duties are all examples of adverse action.

Analysis of the Ruling.

In this case, the defendant’s medical group/employer tried to get the court to dismiss the lawsuit (complaint) based on the EEOC’s earlier determination that the nurse failed to sufficiently support charges of sexual harassment. If the employer had not retaliated against the nurse, in this case, would have then been over. But that didn’t happen. The complaint asserted a claim of retaliation in violation of Title VII, not sexual harassment.

The court also noted that the medical group did not argue that the EEOC’s retaliation allegation was insufficient. Accordingly, the judge denied the motion to dismiss filed by Pediatric Alliance, the employer.

To view the court’s opinion in full, click here.

Tips for Employers to Avoid EEOC Complaints.

1. The employer should adopt a “zero tolerance” policy for discrimination and harassment.

2. Make sure your officers, supervisors, and key employees are instructed on a regular basis about what situations are considered sexual harassment or discrimination.

3. Make sure your officers, supervisors, and key employees sign a statement each year, stating that they are aware of the company’s “zero tolerance” policy and what constitutes harassment and discrimination.

4. Establish a method by which employees can submit reports of harassment and discrimination without the perpetrator becoming aware of it. This should be part of the employer’s compliance program.

5. Be sure your company or group has a good directors and officers (D&O) liability insurance and excess liability insurance policy that covers sexual harassment and discrimination claims.

6. Include an indemnification clause in the contracts of officers, supervisors, and key employees, requiring them to indemnify the employer in any case where the employer is held liable for acts of sexual harassment or discrimination.

7. Be sure that an employee who files a complaint does not have adverse employment action taken against him or her, especially based solely upon the word of the person against whom the complaint was filed. Bring a human relations expert in as early as possible to consult on the case, as well as an employment law defense attorney.

8. Make sure that all employees, including officers, supervisors, and key personnel, receive training once a year on avoiding sexual harassment and discrimination and document it in their personnel/human resources file. Hiring an outside trainer can make this less burdensome and more enjoyable. Again, this should be part of the employer’s compliance plan.

 

Don’t Wait Until It’s Too Late, Talk to an Experienced Attorney Now.

Florida workers have a right to report sexual harassment or discrimination without facing retribution, but workers often file complaints that are not valid. The EEOC advances opportunities in the workplace by enforcing federal laws prohibiting employment discrimination. Find out how The Health Law Firm can help if you are an employer that finds itself in this legal situation.

Additionally, please read one of our recent blogs dealing with a similar EEOC lawsuit.

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

The Health Law Firm’s attorneys routinely provide legal representation to nurses, physicians, medical groups, pharmacists, pharmacies, physicians, and other health providers. We provide legal representation for employers in EEOC complaints, workplace discrimination complaints, and suits involving harassment or discrimination complaints. We also provide legal representation in Department of Health, Board of Medicine, Board of Nursing investigations and complaints, DORA investigations and complaints. We provide litigation services in state and federal courts and state and federal administrative hearings. We provide legal representation across the U.S., not just in Colorado, Florida, Louisiana, Virginia, and Washington, D.C.

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

Sources:

Shanes, Alexis. “Fla. Pediatric Group Can’t Dodge EEOC Retaliation Suit.” Law360. (November 4, 2020). Web.

“EEOC Sues Pediatric Health Care Alliance for Retaliation Over Harassment Complaints.” U.S. Equal Employment Opportunity Commission (EEOC). (June 22, 2020). Web.

Bean, Mackenzie. “Florida practice retaliated against nurse for reporting harassment, EEOC says.” Becker’s Hospital Review. (November 9, 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. Call (407) 331-6620 or Toll-Free at (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

 

 

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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“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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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.

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