Tag Archives: department of health

Some Providers Billing PIP Claims No Longer Exempt From Health Care Clinic Act

MS_smBy Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law

Some health care providers that were previously exempt from the requirements of the Health Care Clinic Act are now required to obtain a Health Care Clinic license in order to bill for care provided to their patients injured in car accidents.

The original purpose of the Health Care Clinic Act was to regulate health care entities that were not owned by licensed health care providers. Entities that were owned by licensed health care providers were exempt from the Health Care Clinic license requirements because those health care providers were already regulated by the Department of Health (DOH).

Effective January 1, 2013, the law changed so that every health care provider that bills personal injury protection (PIP) insurance carriers is now required to obtain a Health Care Clinic license unless the provider is exempt from that requirement under the PIP statute. The only health care providers that are still exempt under the PIP statute are medial doctors, osteopathic doctors, chiropractic doctors, and dentists. Physical therapists, nurse practitioners and doctors of podiatry must be licensed as Health Care Clinics in order to bill PIP insurance carriers. Acupuncture doctors and massage therapists are now completely prohibited from billing PIP insurance carriers.

Additional Requirements on Health Care Clinics.

The PIP statute also imposes additional requirements on Health Care Clinics before those clinics can bill PIP insurance carriers. In order to bill PIP, a Health Care Clinic must be:

A health care clinic licensed under Part X of Chapter 400, Florida Statutes, and is accredited by an accrediting organization whose standards incorporate comparable regulations required by this state, or

1. Has a medical director licensed under chapter 458, chapter 459, or chapter 460;
2. Has been continuously licensed for more than three years or is a publicly traded corporation that issues securities traded on an exchange registered with the United States Securities and Exchange Commission as a national securities exchange; and
3. Provides at least four of the following medical specialties:

a. General medicine
b. Radiography
c. Orthopedic medicine
d. Physical medicine
e. Physical therapy
f. Physical rehabilitation
g. Prescribing or dispensing outpatient prescription medication
h. Laboratory services.

Click here to read 627.736(1)(a)2e, Florida Statutes.

PIP Insurance Carriers Might Deny Claims.

The Florida PIP statute also provides that a physical therapist can provide follow-up care upon the referral by a physician, which conflicts with the new Health Care Clinic license requirements in other parts of the statute. Several PIP insurance carriers are denying provider claims and demanding refunds based upon their own interpretations of these changes. A health care provider that receives denials, or demands for refunds should immediately contact an attorney experienced in these matters.

Contact Experienced Health Law Attorneys.

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

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

Comments?

Were you aware for the changes to the Health Care Clinic Act? Were you previously exempt and now required to obtain a Health Care Clinic license? Please leave any thoughtful comments below.

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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

California Doctor To Pay $562,500 Fine and Spend 5 Days in Jail for Balance Billing Patients Covered by Managed Care Plans

MLS Blog Label 2By Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A California doctor was fined $562,500 and ordered to spend five days in jail for illegally balance billing patients covered by health plans, according to a Los Angeles Times posted in December 2013. The doctor, Jeannette Martello, M.D., is a plastic and reconstructive surgeon practicing in the Los Angeles area. She was accused of balance billing patients covered by managed care health plans that were provided emergency treatment in several hospitals in Los Angeles. The doctor had very aggressive collection practices and allegedly sued her patients frequently to collect the fees not covered by the managed care health plans.

Click here to the entire Los Angeles Times article.

What is Balance Billing?

Balance billing is the practice of doctors charging the patient the difference between what the managed care plan pays and doctor’s regular charges. A physician who is in-network is usually prohibited from balance billing patients by the health plan’s contract with the physician. The problem of balance billing arises most often in the context of emergency services where the patient may go to an in-network hospital, but the specialist physician providing services to the patient may be out-of-network. Most states require the managed care plan to pay the out-of-network physician a “reasonable fee” for the services. The physicians and the managed care plans rarely agree on the “reasonable fee” for a particular service. This often results in litigation between the physician and the health plan. The situation also arises when a patient goes to an in-network hospital for surgery, but the anesthesiologist is not in-network.

Doctor Plans to Appeal.

According to the Los Angeles Times article, Dr. Martello plans to appeal the ruling. Dr. Martello and her attorney claim the prohibition on balance billing did not apply to her patients because the patients were in stable condition.

Court Previously Entered Injunction Prohibiting Illegal Billing.

In 2012, The Los Angeles Superior Court entered an injunction ordering Dr. Martello to cease all illegal billing practices, according to the Department of Managed Health Care. Dr. Martello continued the billing practices, which is why the judge ordered Dr. Martello to serve five days in jail. The judge also issued a permanent injunction prohibiting Dr. Martello from illegally billing patients in the future.

To read the press release from the Department of Managed Health Care, click here.

The Medical Board of California also placed Dr. Martello on probation for five years for her illegal billing practices in August 2013.

Balanced Billing Could be Considered a Matter of Contract Law.

It is usually sound legal advice that if a court orders you to do something or to stop doing something, comply with the court’s order. It is hard to imagine legal advice to the contrary, unless the parties desire to have a test case to challenge the law or challenge such rulings.

Balance billing in such cases is usually a matter of contract law. The provider agreement between the physician and the health plan is the contract at issue. This, then, would be a breach of contract action and not a criminal matter.

However, in certain instances, such as for Medicare or Medicaid patients, laws may prohibit balance billing. It is always best to check with your experienced health attorney first.

Contact Health Law Attorneys Experienced with Investigations of Doctors.

The attorneys of The Health Law Firm provide legal representation to doctors and other healthcare providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers. The Health Law Firm also represents providers in billing disputes with third-party payers.

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

Comments?

Have you ever heard of balance billing patients? Do you think the doctor received a far punishment for her billing practices? Please leave any thoughtful comments below.

Sources:

Terhune, Chad and Brown, Eryn. “Doctor Gets Jail Time, $562,500 Penalty in Improper-Billing Case” Los Angeles Times. (December 6, 2013). From: http://articles.latimes.com/2013/dec/06/business/la-fi-mo-doctor-balance-billing-case-20131205

Green, Marta. “Department of Managed Care Director Brent Barnhart Issues Statement on Preliminary Injunction Granted in People v. Martello.” Department of Managed Health Care. (June 13, 2012). From: http://www.dmhc.ca.gov/library/reports/news/pr061312.pdf

The Pathology Blawg. “Dr. Jeannette Martello Gets Five Years Medical Probation for Aggressive Balance Billing.” The Pathology Blawg. (August 20, 2013). From: http://pathologyblawg.com/medical-news/balance-billing/jeannette-martello-five-years-medical-probation-aggressive-balance-billing/

About the Authors: 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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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

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

Fake Surgeon in Florida Accused of Performing Liposuction Without a License

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Kissimmee, Florida, man was arrested on December 18, 2013, on charges that he has been allegedly performing liposuction without a medical license in a Central Florida clinic. According to the Orlando Sentinel, the Metropolitan Bureau of Investigation (MBI) began investigating the phony surgeon about a year ago, after Florida Department of Health (DOH) received a complaint about the clinic in which the phony doctor worked. The clinic was called “Sculptural Orlando.”

Click here to read the article from the Orlando Sentinel.

Investigators Looking for More Victims.

According to the Orlando Sentinel, it is alleged the fake surgeon has been performing illegal liposuction surgeries for about a year and telling his patients he was a licensed medical doctor.

After further investigation, MBI agents discovered the clinic was licensed as a massage establishment and the fake surgeon did not hold a valid medical license in Florida. Several MBI agents visited the clinic undercover, posing as potential customers. The agents allege the fake surgeon performed evaluations on them and showed them before-and-after photos of his patients.

The DOH is still looking for victims or tips related to the fake surgeon and any unlicensed activity at the clinic.

Practicing Without a License Is a Crime.

This is by no means the first report we’ve heard of phony health care professionals operating on patients or injecting people with toxic chemicals. For some reason, Florida seems to get more than its fair share of these.

Practicing medicine without a license is a crime. Additionally, so is helping someone practice medicine without a license. As a licensed healthcare practitioner, you may be asked to supervise others or participate in a clinic or practice as a “medical director,” supervisor, or monitor. Remember that your license may be at stake with any wrongdoing by those subordinates under your supervision. Before you join a practice or agree to supervise others, check first with the DOH that the other providers have legitimate, active licenses. You can verify a license for free on the DOH’s website.

Also, remember that a license to practice medicine in Venezuela, Cuba, Mexico or anywhere else, is just that: a license to practice in that country. It does not allow a person to practice medicine in the United States or Florida. A license from the State of Florida is required to practice in Florida, except for certain military and government-employed physicians. Always check a physician’s license.

Additionally, a medical clinic that is not owned 100% by a licensed physician, podiatrist, chiropractor, physical therapist or nurse practitioner (or a few other specified medical professions) must have a separate Health Care Clinic License (HCCL) that is issued by the Agency for Health Care Administration (AHCA).

We have been consulted by many professionals who have found themselves caught working in illegal clinics. For example, a medical clinic cannot be owned by a deceased physician’s spouse who is not a licensed health professional, unless it has a HCCL. A clinic cannot be owned 50% by a CPA and 50% by a doctor, unless it has a separate HCCL. A dental clinic cannot be owned 20% by a non-dentist and 80% by a dentist; this is illegal and even a HCCL will not make it legal.

Always check out the credentials of a clinic, and its owners before you accept a job there or before you seek treatment there.

More Stories on Fake Physicians and Other Phony and Fraudulent Professionals to Come.

On this blog we will include additional articles on fake doctors and health care professionals, similar to those we have published in the past.

To see a blog on a fake dentist in Miami, click here. You can also read the story of a fake plastic surgeon in New York by clicking here. To read the story of a fake doctor in Texas accused of injecting patients with silicone instead of Botox, click here.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Comments?

What do you think of all of these news stories of phony health care professionals? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “Man Accused of Performing Illegal Liposcutions.” Orlando Sentinel. (December 19, 2013). From: http://www.orlandosentinel.com/news/local/breakingnews/os-liposuction-without-license-arrest-20131219,0,7677863.story

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

 

 

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

Fake Doctor in Texas Accused of Injecting Patients with Silicone Instead of Botox

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A South Texas woman was charged on October 31, 2013, for allegedly injecting people with silicone, that she claimed was Botox. The phony health professional, described in some media reports as an “unlicensed plastic surgeon,” has been charged with practicing medicine without a license. According to Reuters, the unlicensed health professional could also be facing charges of manslaughter if investigators confirm that a woman’s death was related to treatments received from the imposter.

Click here to read the entire article from Reuters.

If convicted, the fake health care professional could spend up to ten (10) years in prison and have to pay up to $10,000 in fines.

Investigators Looking for More Victims.

Investigators say this phony health professional would travel to different spas and massage parlors along the Texas-Mexico border offering her services and leaving advertisements. She allegedly made injections in patients’ lips, buttocks and legs. The advertisements seized by authorities touted collagen treatments for $250.

According to Fox News, investigators learned of the underground practice when a victim allegedly received a series of injections in her legs in August 2013. The victim has allegedly been hospitalized since October 9, 2013. Authorities also say they are investigating the death of a woman who may have been a victim of the treatments. So far around 30 victims have been identified, but investigators say there could be more, according to Fox News.

To read the Fox News story, click here.

Underground Injections Happen All Over the Country.

This is by no means the first report we’ve heard of phony health care professionals injecting people with toxic chemicals.

In February 2013, a South Florida man was arrested for allegedly injecting people with silicone in a West Palm Beach motel room. According to police, this fake physician injected his patients with buttocks-enhancing silicone injections. He would then allegedly seal up the skin wounds with Krazy Glue. To read more on this, click here to read my previous blog.

As far as we know, there is no relationship between the Florida fake doctor and the Texas fake doctor. However, they could have attended the same medical school.

Practicing Without a License Is a Crime.

Practicing medicine without a license is a crime. Additionally, so is helping someone practice medicine without a license. As a practitioner, you may be asked to supervise or join a practice. Remember that your license may be at stake with any wrongdoing by your subordinates. Before you join a practice or agree to supervise others, check first with the Department of Health (DOH) that the other providers are legitimate. You can verify a license for free on the DOH’s website.

Also, remember that a license to practice medicine in Venezuela, Cuba, Mexico or anywhere else, is just that: a license to practice in that country. It does not allow a person to practice medicine in the United States. A specific license from the State of Florida is required to practice in Florida, except for certain military and federal physicians. Always check a physician’s license.

More Stories on Fake Physicians and Other Phony and Fraudulent Professionals to Come.

In the near future on this blog we will include additional articles on fake doctors and health care professionals.

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

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Comments?

What do you think of all of these news stories of phony health care professionals? Please leave any thoughtful comments below.

Sources:

Taylor, Jared. “Phony Plastic Surgeon Accused of Using Silicone for Botox.” Reuters. (October 31, 2013). From: http://www.reuters.com/article/2013/10/31/us-usa-crime-texas-idUSBRE99U1CT20131031

Associated Press. “South Texas Woman Charged for Allegedly Injecting Client; Authorities Seek More Victims.” Fox News. (October 31, 2013). From: http://www.foxnews.com/us/2013/10/31/south-texas-woman-charged-for-allegedly-injecting-clients-authorities-seek-more/

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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

 

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

Removal of Past Criminal History from Florida Department of Health Practitioner Profile

LOL Blog Label 2By Lance O. Leider, J.D., The Health Law Firm and  George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

By statute, the Florida Legislature requires that the Department of Health (DOH) maintain an online practitioner profile for medical doctors, osteopathic physicians (DOs), chiropractors (DCs), advanced practice registered nurses (APRNs) and podiatric physicians.

Click here to learn more about these profiles from the DOH’s website.

However, the same law requires those health professionals to immediately update the profile when there is a change and to verify its accuracy.

What Does the Practitioner Profile Contain?

DOH practitioner profiles contain information such as education, disciplinary history, practice address, criminal history, malpractice actions, licensure actions by other jurisdictions, hospital privileging actions, insurance information and other optional information.  These profiles are published on the DOH’s website.  They are freely accessible by the public and are frequently used by employers, medical staff committees, and insurance panels to verify information provided by applicants.

Check Your Personal Profile for Accuracy.

Unfortunately, this information is not always correct.  Oftentimes the information in a profile is outdated or misreported.  The majority of the information in a profile is supposed to be entered through the website by the practitioner personally; however, the DOH is free to add information on its own.

Recently, The Health Law Firm had a client whose employment contract was not renewed due to misreported criminal history information on the DOH practitioner profile.  Most troubling was the fact that this information appeared on the profile suddenly; it had not been on the practitioner profile in the past.  Furthermore, the information was decades old and had been posted in direct violation of a court order sealing the underlying records.

We have also had cases where information was incorrect, where the same information was repeated several times, or where the information on the profile did not meet basic requirements for reporting.

Fight Misreported Information on Your Practitioner Profile.

The Health Law Firm has been successful in having the DOH remove criminal history information and other incorrect information from a practitioner profile.

It is imperative that you check your practitioner profile regularly to ensure that it is accurate with respect to the information that you provided and that may have been provided by the DOH.  If you find that confidential or incorrect information has been posted to your profile, contact an attorney experienced with dealing with these matters immediately.  You never know when your employer, a business associate or potential patient will look up your information on your profile.

Contact Health Law Attorneys Experienced with Department of Health Investigations.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment (DME) suppliers, medical students and interns, chiropractors, hospitals, ambulatory surgical centers, pain management clinics, nursing homes and any other health care provider

Our attorneys provide legal representation in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, Federal Bureau of Investigation (FBI) investigations and other types of investigations of health professionals and providers.

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

Comments?

Do you update and maintain your online practitioner profile? Have you ever noticed any misreported information on your profile? Please leave any thoughtful comments below.

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

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

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

Massage Therapists Needs Good Professional Liability Insurance, Too

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Whether you’re an independent contractor, an employee of a chiropractor, physician or spa, or you travel to clients’ homes, insurance is essential for all massage therapists. Not only can professional liability insurance protect you in the event of a lawsuit, but it may also pay your legal defenses in the event of a complaint against your license to practice or for other legal problems. In Florida, it is not mandatory for a massage therapist to have professional liability insurance. However, since it is so cheap, we always recommend buying coverage. It’s a small price to pay to protect your livelihood. But be sure it covers the investigation of your license.

It is now common to be able to find professional liability insurance that provides excellent coverage and excellent benefits, but costs less than a dollar a day. One policy I recently reviewed for a massage therapist included payment of all attorney’s fees and costs for defense of HIPAA privacy complaints, for defense of any complaints or investigations of the therapist’s license and for legal representation at any deposition.

The Most Important Reason to Buy Insurance: To Provide Legal Protection for a Massage Therapist’s License.

The primary reason a professional liability policy should be purchased is that this type of insurance usually includes coverage for legal defense of licensing and disciplinary action commenced against a massage therapist. It’s important to note that many massage therapists’ liability insurance includes this coverage automatically, but some policies may not. Some companies may offer this type of coverage separately to be purchased for a small additional premium.

License defense coverage pays the legal fees associated with defending a massage therapist when an investigation is initiated that may result in action against the massage therapist’s license or in administrative disciplinary action. Coverage is usually available from the time the massage therapist receives written notice that an investigation by a state agency has been initiated. It will also cover formal administrative hearings before an administrative law judge.

You should buy this coverage now, when you don’t need it. Otherwise, when you do need it, it will be too late after the problem arises.

Please Think About These Points When Buying Liability Protection.

When deciding on which professional liability insurance plan to purchase, the massage therapist should inquire as to the extent of coverage for licensing and disciplinary defense coverage. Some professional liability insurers have a “broad form” of coverage which may provide legal defense for the massage therapist in almost any type of administrative action. Other companies limit coverage to only actions that may result in disciplinary action against the massage therapist’s license. Still others provide no coverage at all except for lawsuits in professional negligence cases. The massage therapist should always attempt to get the broadest coverage available and be sure it covers disciplinary defense and licensure defense expenses.

The massage therapist should also question as to whether or not he or she will be allowed to select his or her own attorney. Many insurance companies have contracts with certain law firms to provide legal services for a reduced fee. The insurance company may require you to use one of its own contracted attorneys or in-house attorneys which it employs directly. Given the limited number of attorneys with experience in handling massage therapy law issues, it is advised to obtain coverage through a company which allows the massage therapist to choose his or her own attorney, especially for license defense.

The most important reason to purchase professional liability insurance is for the licensure defense coverage. A massage therapist does not want to risk losing his/her license because he/she was unsuccessful at defending in an investigation or did not have the resources to do so.

Question Your Coverage – Get Answers in Writing.

Since there are many different insurance companies out there selling professional liability insurance, it is important to be sure of exactly what is covered and what is not covered. Some companies provide “broad form” coverage, providing coverage for everything I discussed above, automatically. See Healthcare Provider’s Service Organization (HPSO) Insurance for example.

Other companies will provide this coverage as a “rider” for a small additional premium. Some insurers do not sell it at all, so you will have to buy it elsewhere. If you are in doubt as to your coverage, ask and get the answer in writing.

Insurance agents typically deal with a number of insurance companies. If you are using an insurance agent, be sure to specify exactly what you want. A good agent will be able to find it for you.

It’s Expensive to Defend Your License, Insurance Helps.

Legal representation is costly. To defend a simple case involving a complaint made against you, whether valid or not, can range from $3,000 to $25,000 or more. A case involving a formal hearing (similar to a trial) can cost much more than you imagine. If you are not independently wealthy and cannot afford a legal defense, you may be forced to accept discipline from the Board of Massage Therapy, even if you are completely innocent.

The rules and procedures in administrative licensing cases are not the same as cases in civil and criminal courts. An insurance policy that provides licensure defense will help the massage therapist to have the financial resources to seek out a health law attorney experienced in disciplinary cases and to obtain a fair hearing.

More Than 100 Massage Therapists’ Licenses Were Suspended in Florida.

You may remember in September of 2012, the Florida Secretary of Health signed 161 emergency suspension orders (ESOs) for massage therapists in Florida. The suspension orders were aimed at massage therapists who allegedly obtained their licenses to practice through a transcript-buying scandal at the Florida College of Natural Health. Many of these massage therapists are still fighting to keep their licenses. This is just one instance where having professional liability insurance can help save a health care professional’s livelihood. You can read more on the suspension of the 161 massage therapists’ licenses by clicking here.

Contact Health Law Attorneys Experienced in Representing Massage Therapists.

The attorneys of The Health Law Firm provide legal representation to massage therapists in Department of Health (DOH) investigations, licensing matters and other types of investigations of health professionals and providers.

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

Comments?

As a massage therapist, do you have professional liability insurance? Why or why not? Please leave any thoughtful comments below.

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

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

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

Dentists, Talk to an Attorney Before You Talk to an Investigator

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In Florida, You DO NOT Have to Speak to an Investigator!

Despite mailing out hundreds of thousands of postcards and letters to dentists, throughout Florida, we continue to receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. In Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

Investigators are NOT There to Help You.

Let me state this as succinctly and clearly as possible. If you are being investigated, you will not be better off making a statement. You will not be better off explaining your side of the story. The investigator is not your friend. The investigator is not on your side. All you are doing is falling for a trick and helping the government to make a case against you.

Protect Your License and Your Livelihood.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights.

However, in cases where you might have your dental license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove ths case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your dental license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many dentists, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

If You Anything You Run the Risk of Ruining Your Defense.

In the absence of a statement by the suspect (in this case, let’s assume this is YOU), the government may have a very difficult time of proving that you have committed any offense. It may have other witnesses (who may not be around at the time of any hearing or trial). It may have a lot of physical evidence or documents. But it may be impossible for the government investigators to make any link between you and the evidence, unless you help the investigators do this. You would be surprised at how many dentists believe that they can just talk their way out of the situation; in reality, they are just giving evidence that is used to make the case against them.

Any evidence at all, just admitting that you were there, admitting that the documents are yours, admitting that the patient was yours, admitting that you worked at the clinic, admitting that you wrote the prescription, admitting that the property is yours, admitting that you were on duty at the time, admitting that you have taken a drug, admitting that you signed the form, can be a crucial piece of evidence that could not otherwise be proven without your own testimony.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. They do not have to be. They will not be the ones making the final decision against you. Theirs is the job of putting together the case against you. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

Why are You Being Investigated?

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.

Talking to the Investigator May Make It Worse.

Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

These investigators are lied to all the time. They are usually better at detecting lies than a polygraph expert is. Furthermore, in most cases, you will be the very last person to be interviewed. Therefore, they will already know just about everything that can be used against you. If your statement contradicts in any way what others have told them, they will know you are the one who is lying. However, knowing something or suspecting something does not mean it will be something that can be proven in court or in an administrative hearing.

Talk to a Lawyer Prior to Making a Statement.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

All you have to do is state “I must talk to my lawyer before I say anything.” “I will have my lawyer contact you.” “I cannot say anything until I talk to my lawyer.” “I want a lawyer.”

If you are not the one being investigated, then there is no good reason why the investigator would want you to make a statement before you consulted with your attorney. What is the rush?

Then you must also avoid the old trick of the investigator telling you “If you don’t have anything to hide, why would you need a lawyer?” Please don’t fall for this trick, either. This is America. Smart people and rich people spend a lot of money on attorneys and other professionals to represent them and advise them. There is a good reason why they do this.

Far too often the doctor only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused.

Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Think of this as an intelligence test. Are you smart enough to follow this guidance and avoid this type of mistake?

Contact Health Law Attorneys Experienced with Investigations of Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

 

Florida Dentist Hit with an Emergency Suspension Order for Allegedly Inhaling Nitrous Oxide

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Debary, Florida, dentist has been served with an emergency suspension order (ESO) by the Florida Department of Health (DOH) for allegedly inhaling nitrous oxide or laughing gas in front of patients. The administrative complaint filed against the dentist on November 2, 2012, by the Florida DOH stated a department-approved evaluator deemed the dentist unfit to practice dentistry and was recommended to undergo residential treatment.

Click here to read the full administrative complaint against the dentist.

We want to point out that these are just allegations made against the dentist at this point in time and have not been proven by the state.

Dentist Allegedly Ordered to Rehabilitation.

In June 2012, the Florida DOH ordered the dentist to be treated for alcohol and inhalant dependence. However, while in rehabilitation, she allegedly failed drug tests for alcohol, opiates and hydrocodone. She was then later reportedly caught inhaling laughing gas again.

The dentist allegedly refused another treatment plan by writing on it that she was going to drink champagne on holidays and special occasions.

ESO Means Health Professional Cannot Practice While License is Suspended.

On November 27, 2012, WFTV in Orlando reported a woman that looked to be the suspended dentist drove up to the Debary office and posted a handwritten sign on the front door that read, “Office is open.”

To see the story from WFTV, click here.

The Florida DOH states that when a licensee is served with an ESO that person may not practice in Florida while his or her license is suspended. Click here to see the status of the dentist’s license from the DOH.

Formal vs Informal Hearings.

The dentist may elect to have a formal hearing contesting the facts with the Division of Administrative Hearings (DOAH). She also may waive this right and not dispute the facts and have an informal hearing before the Board of Dentistry.  The Board will then make a final decision concerning the dentist’s license and her future working in dentistry. Be sure to check this blog for updates.

Contact Health Law Attorneys Experienced with Department of Health (DOH) Investigations of Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.

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

Comments?

What do you think of this dentist’s story? Please leave any thoughtful comments below.

Sources:

Walsh, Michael. “Dentist Gassing Up on Nitrous Oxide No Laughing Matter.” New York Daily News. (November 27, 2012). From: http://www.nydailynews.com/news/national/dentist-gassing-nitrous-oxide-laughing-matter-article-1.1209081?print

Barber, Tim. “Dentist Accused of Using Laughing Gas on Self While Working on Patients.” WFTV. (November 27, 2012). From: http://www.wftv.com/news/news/local/dentist-accused-using-laughing-gas-while-operating/nTGJd/

Department of Health v. Sharon Ann Day-Osteen, D.D.S. Case Number 2012-13461. Administrative Complaint to the Board of Dentistry. (November 2, 2012). From: http://www.thehealthlawfirm.com/uploads/doh%20v%20Day-Osteen.pdf

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

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

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

Advice for All Massage Therapists: Please Talk to a Lawyer Before You Talk to the Department of Health (DOH) Investigator

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

Massage therapists, I beseech you: please do not talk to a Department of Health (DOH) investigator until you have talked to a health lawyer who is experienced with DOH investigations and board licensing complaints.  Do not answer or respond to even the most basic questions about where you work now, what your address is or if you know patient x, until consulting with counsel.

Admitting to Anything May Hurt Your Case.

We are routinely consulted by massage therapists and other healthcare providers for representation after they have discussed the case and after it is too late to undo the damage they have caused to themselves. Often they do not understand the seriousness of the matter or the possible consequences, until it is too late. Admitting to even the most basic facts causes damage to any possible defense.

Administrative Licensure Investigations are “Semi-Criminal.”

The vast majority of massage therapists and even most attorneys do not realize that DOH investigations concerning complaints against a massage therapist’s license are considered to be “penal” or “quasi-criminal” proceedings.  This means the same laws and constitutional rights apply to them as apply to criminal investigations.  However, since they are also administrative proceedings and not strictly criminal proceedings, investigators do not need to advise you of your Miranda rights or tell you you have the right to remain silent, the right to an attorney, etc.

In any criminal investigation a good criminal defense attorney would always tell you “Do not talk to the investigator” and “Tell the investigator you have a lawyer.”

How Investigators Try to Get You to Not Talk to an Attorney.

DOH investigators, police investigators, FBI investigators and other law enforcement officers, are well trained in investigative techniques and how to get information out of suspects.  Often the approach used is to catch you by surprise before you even know there is an investigation and the investigation is of you.  Another technique used is to lull you into a false sense of security that the investigation is about someone or something else and not you.  Another investigative technique is to convince you that you need to “Tell your side of the story” so that the investigation is accurate.  Yet another is that “Things will go much better for you if you cooperate.”  None of these things are true.

However, if it is truly in your best interest to cooperate or to make a statement, after you consult with your attorney, your legal counsel will surely advise you to do this.  The investigator should not mind waiting until you consult your attorney.  However, many will go to extremes to convince you that you don’t need an attorney and shouldn’t get an attorney.

Consult an Experienced Health Law Attorney.

The attorneys of The Health Law Firm are experienced in dealing with DOH investigators, AHCA surveyors, Drug Enforcement Administration (DEA) agents, FBI agents, police and sheriff’s office investigators, OIG special agents (S/As) and Medicaid Fraud Control Unit (MFCU) investigators. 

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

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

Disclaimer: Please note that this article represents our opinions based on our many years of practice and experience in this area of health law. You may have a different opinion; you are welcome to it. This one is mine.

Note: This article is for informational purposes only; it is not legal advice.

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

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

Most Physicians Not Using the Prescription Drug Monitoring Program

By Danielle M. Murray, J.D.

The Florida Prescription Drug Monitoring Program is apparently collecting dust as physicians are choosing not to use it. The Tampa Bay Times reported on October 5, 2012, that as few as one in twelve doctors have ever used the database. That is about eight percent (8%) of all physicians. Approximately fourteen percent (14%) of physicians are registered for the database.

Click here to read the entire story from the Tampa Bay Times.

Physicians Don’t Want to Use the Database.

Physicians interviewed for the article said the problem is that database use is not mandatory. Physicians are not required to review the database prior to accepting a new patient, or prior to giving out a prescription.  Some physicians said they would ask the pharmacy or check the local arrest records if they had a suspicion that the patient was abusing drugs or “doctor shopping.”

One potential reason that physicians may not check the database is simply that they don’t want to know.  If they know a patient is abusing prescription drugs, then that patient has to be sent away, and that is a loss of business. Another reason could be some doctors may not know the database exists, and other doctors may simply be too busy to bother.

In Some States the Database Is Mandatory.

The prescription drug database in Kentucky had a similar usage problem until the state made it mandatory for physicians to check the database.  A mandatory law in Ohio resulted in shock when physicians saw the reality of the large number of prescription drug abusers in their practices.

For the foreseeable future, using the database will not be mandatory for physicians. However, physicians should consider using the database, or otherwise remaining vigilant to avoid being labeled an overprescriber.

For legal tips for working with pain patients, click here.

Does the Database a Make it Easier to Prosecute?

From my perspective, I have seen the database in Florida used mostly as a tool for prosecution of pain management physicians and pharmacists. Even in cases where the pharmacist has been the one to notify the authorities of suspected forged prescriptions and where the pharmacist has cooperated in prosecuting the criminals, I have seen this database cited as evidence against him or her. I do not believe this is what the legislation intended.

Contact an Attorney Experienced in Department of Health (DOH) and Drug Enforcement Administration (DEA) Investigations.

As a health care professional, you may one day be charged with overprescribing narcotics or even criminally charged in the death of a patient due to their drug habits. If you are contacted by the Department of Health (DOH) or the Drug Enforcement Administration (DEA), do not sign anything or make any statements to anyone. Call an experienced health law attorney to learn about your rights in such a case.

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

Comments?

As a physician, do you use the Florida Prescription Drug Monitoring Program? Why or why not? Please leave any thoughtful comments below.

Source:

Cox, John Woodrow, “Florida Drug Database Intended to Save Lives is Barely Used by Doctors.” Tampa Bay Times. October 7, 2012. http://www.tampabay.com/news/health/florida-drug-database-intended-to-save-lives-is-barely-used-by-doctors/1255062

About the Author: Danielle M. Murray 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., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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