DEA Has Online List of Cases Against Doctors

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

The Drug Enforcement Administration (DEA) has a public list of physicians with DEA registrations that have been arrested and prosecuted. On the DEA’s website, there is a list of all investigations of physician registrants in which the DEA was involved that resulted in the arrest and prosecution of the registrant which was updated and released on April 3, 2012.

The list includes:
• The name of the physician;
• The physician’s city/state;
• Date of arrest/conviction;
• Judicial status;
• Conviction;
• Status of the physician’s DEA registration; and
• Remarks regarding the physician’s case.

Click here to view a copy of the most recent list (last updated on April 3, 2012).

We cannot vouch for the validity of the information on the DEA’s list. We just know it was published.

Contact Health Law Attorneys Experienced with DEA Cases.

The attorneys of The Health Law Firm are experienced in handling DEA cases. If you are currently being investigated or facing other adverse action by the DEA contact one of our attorneys by calling (407) 331-6620 or (850) 439-1001. You can also visit our website for more information 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.

New Anti-Prescription Drug Abuse Campaign in Pinellas County

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

Pinellas County has started a new billboard campaign aimed at curbing prescription drug abuse. The billboard message reads, “We’re shutting down Pill Mills in Pinellas County.” The first two billboards were erected on April 1, 2012. Several smaller boards will be put up in the next few weeks, with even more planned for the future. This continues the long-standing battle by Pinellas County law enforcement authorities against pain management clinics that they describe as “pill mills.”  Pinellas County includes the cities of St. Petersburg, Clearwater and Seminole.

The billboard message is a statement from local coalition groups who have partnered with Pinellas County in order to curb the area’s prescription drug abuse problem. In 2010, Pinellas County allegedly had the most occurrences of accidental overdose deaths from prescription drugs when compared to all other counties in Florida.

The intention of Pinellas County in establishing this billboard campaign may be aimed at stopping prescription drug abuse, but the billboards also shed negative light on legitimate pain management clinics and physicians. Although anti-prescription drug abuse campaigns are laudable, these efforts should focus on assisting those with actual prescription drug abuse history, rather than creating a scapegoat out of the pain management industry.

If you work in the pain management industry (physician, pharmacist, pain clinic, pharmacy, etc.) and feel that your medical license, pharmacy license, or business is at risk or is under investigation by the Drug Enforcement Administration (DEA) or Florida Department of Health (DOH), please visit our website at www.TheHealthLawFirm.com for more information about this.

Sources Include:

WFTS Staff, “County Sends Billboard-sized Message About Prescription Drug Abuse,”  ABC Action News (Apr. 6, 2012).  From:  http://www.abcactionnews.com/dpp/news/state/county-sends-billboard-sized-message-about-prescription-drug-abuse

“We’re Shutting Down Pill Mills in Pinellas County,” Tampa Bay Newspapers (Apr. 10, 2012). From:  http://www.tbnweekly.com/pinellas_county/content_articles/041012_pco-01.txt

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

Under Review: What You Need to Know About Clinical Privileges Hearings

The term “fair hearing” is used by different individuals and different organizations to refer to an administrative hearing or a private hearing in a hospital or professional association. There are a number of different types of proceedings that are often referred to as “fair hearings,” including clinical privileges (or peer review) hearings, which allow a physician who has had his or her clinical privileges revoked to be reviewed.

This type of hearing can also be referred to as:
• Privileges Hearing
• Fair Hearing
• Medical Review Hearing
• Credentials Hearing
• Medical Staff Hearing
• Disciplinary Hearing
• Credentials Committee Hearing or
• Ad Hoc Committee Hearing.

The physician that is subject to these hearings is not a Hospital employee, does not have a direct contract with the Hospital, is not a member of a group with an exclusive contract, but does have clinical privileges at the Hospital (based on proven clinical skills and competence to perform certain defined procedures in a hospital). When a hospital finds that a physician with clinical privileges is no longer competent (in the eyes of the hospital), a hearing will be conducted aimed at stripping the physician of his or her clinical privileges. This process (especially the litigation involved) can get ugly, and it is important for the physician in question to obtain the counsel of a health attorney who has experience in dealing with clinical privileges hearings.

Here is attorney George Indest’s basic rundown of clinical privileges hearings:

Indest’s Maxims for Hospital Peer Review Hearings

1. The peer review process is different in every hospital.
    a. Medical staff bylaws are different.
    b. Hearings are different (attorneys may not even be able to participate).
    c. The burden of proof may be placed on the physician.
    d. Investigation and appeals process may be different.
2. The hospital’s resources are virtually unlimited.
    a. Hospitals may use certain experienced companies as part of the process that have a tendency to favor the hospital.
    b. The hospital’s personnel and attorneys will do all of the work and provide all of the support for the medical staff and peer review committee.
    c. The hospital and medical staff will have unlimited access to hospital employees and documents.
3. You need legal representation from the time of the first rumor you hear that a complaint has been filed or a matter is being investigated.
    a. DO NOT “wait and see what happens.”
    b. DO NOT think that you will be an exception.
4. You must be represented by an experienced, knowledgeable health care attorney during the peer review process. The hospital will be.
5. The “nonconformist” or “trouble maker” will be forced into a hearing situation. The guy everyone likes won’t be.
6. If hospital administration (including nursing staff) is out to get you, you will be gotten.
    a. If the hospital administration identifies you as a “bad physician,” “troublemaker,” or “disruptive physician” you are in serious, serious trouble.
    b. Your prior cases may be reviewed and scrutinized retrospectively for problems that were “overlooked.”
    c. Every poor result or outcome will be analyzed.
    d. You will be written up for everything that happens, even for things for which others would not be written up. Incidents where you were just “joking around” will be written up as sexual harassment.
    e. Any patient complaints over insignificant matters that would have previously been handled in a routine way, will now be handled as significant events.
7. You will probably be offered an opportunity to resign prior to the commencement of the investigation . . .
8.  But you will foolishly turn down the opportunity to resign.
9. There are many options and alternatives available early in the process, but only an experienced health care attorney will know them. Options may include:
    a. Agreement not to admit, treat or perform certain procedures;
    b. Taking a leave of absence;
    c. Assessment by an independent organization (P.A.C.E., C.C.A.T.);
    d. Agreement to undertake additional training; or
    e. Resignation (prior to any proceedings being commenced).
10. A “fair hearing” is not fair.
     a. The resources are stacked in favor of the hospital and administration.
     b. Peer review proceedings are very expensive (for all parties).
     c. The burden may be and can be placed on you to prove you are currently clinically skilled and competent.
     d. There may be external motivations, other than quality (especially in cases of tenured professors, senior physicians and minorities). Certain motivations are economical in nature and can be identified by:
      i. Proceedings initiated by your competitors;
      ii. Complaints made by your competitors;
      iii. You allegedly bringing in too many cases (monopolizing the procedure rooms or operating rooms);
      iv. You bringing in the wrong cases (too many Medicare, etc.);
      v. One medical group controlling the whole department (in absence of an exclusive contract);
      vi. You being accused as an “overutilizer” (you use too many hospital resources);
      vii. You being accused as”cherry picking” the best cases (all non-indigent or non-Medicaid cases); or
      viii. You refusing to participate in managed care plans.
     e. If suspended pending investigation/hearing and the suspension goes over 30 days, then a report to the National Practitioner Data Bank (NPDB) is required (which means there will be a report to your state medical board or licensing authority).
     f. You may find the same individuals on:
      i. The Investigation Committee
      ii. The Peer Review/Hearing Committee
      iii. The Appeals Committee
      iv. The Board of Directors/Trustees (responsible for final recommendations)
     g. You may have a gag order and not be allowed to talk to witnesses or potential witnesses to help you prepare for your case.
11. It may not matter what the peer review or fair hearing committee recommends.
     a. The Board of Directors/Trustees can and will overrule the conclusions and recommendations of any peer review hearing (with the input of hospital administration and hospital attorneys).
     b. The peer review committee must make solid, unequivocal findings supported by evidence, as well as, strong, precise well-reasoned conclusions and recommendations. Make sure that you ask them to do this and that you (or your attorney) present to them a proposed recommendation or report.
12. Those who judge you are not your peers.
     a. They may be from all different specialities and some may not even by surgeons. (Try to have the hearing committee be appointed by your medical speciality association.)
13. The only rights you have are those in your medical staff bylaws (unless you are at a “public hospital” or in California)
14. The consequences to you of an adverse outcome will be lifelong and career-altering. Consequences include:
     a. National Practitioner Data Bank (NPDB) Reports, which are national, on file for 50 years, very difficult to get corrected or voided and also reported to your state medical board;
     b. State licensure action (in every state in which you have a license);
     c. Medical specialty associations will commence proceedings if they hear of an adverse outcome;
     d. You will unlikely ever get clinical privileges at another hospital;
     e. You may lose medical malpractice insurance coverage;
     f. You may be dropped from the panels of many HMOs, managed care plans and insurers;
     g. Contracts with employers and insurers may require you to report this (so that you can be terminated).
15. Once a peer review proceeding is commenced, it’s not just going to go away, and none of your friends on the Executive Committee or Board of Trustees is going to make it go away.
16. Once a peer review proceeding is commenced against you, you will be in the most important fight of your career and possibly your life.
17. You have no power, no control and no leverage. Get some:
     a. Assemble an experienced legal team;
     b. Begin preparing early and seriously;
     c. Get established, credible experts;
     d. Sue the hospital and certain individuals involved, if circumstances permit;
     e. Consider “political” or “public relations” avenues like letters to other physicians or patients, full page newspaper ads, getting your state or county medical society involved, or having a state legislator introduce a bill to require due process in all hospital adverse actions.
18. You are going to have to spend lots of money to properly defend yourself and you will not get it back if you win.
19. If you think you will be successful in suing in court to have an incorrect result overturned, you are probably wrong.
20. Court litigation can give you the leverage you need to obtain a favorable outcome on the peer review proceeding.

Indest’s Recommendations for the Subject of a Hospital Peer Review Hearing

1. You must ensure that your medical staff bylaws contain true “due process” rights for accused physicians.
2. You should attempt to have state legislation passed that requires all hospitals to afford physicians certain due process rights in peer review proceeding similar to what California has done.
3. The Medical Staff should never allow hospital administration (or the hospital parent corporation) to force them to adopt medical staff bylaws changes which eliminate or limit the hearing rights or due process rights of a physician who may be the subject of an adverse decision.
4. The peer review committee (fair hearing committee) should have its own independent legal advisor in all hearings. This must be someone other than from the law firm which represents the hospital.
5. You must treat the peer review process like you would a civil trial against you for medical malpractice.
6. If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you.
7. Also, immediately retain a litigation attorney who has experience in this type of civil litigation. File suit immediately if the matter is not proceeding fairly and in accordance with medical staff bylaws and state laws.
8. If your hearing procedures/peer review procedures are not in your medical staff bylaws, make sure that both the medical staff bylaws and the hearing procedures state that the hearing procedures have the same force and effect as the medical staff bylaws.

If you are currently the subject of a peer review or clinical privileges hearing, call (407) 331-6620 or (850) 439-1001 to speak with one of our health law attorneys. You can also visit our website at www.TheHealthLawFirm.com.

Why You May Be Waiting For Your Florida Medical License

Applying for a Florida medical license? Read this now, so you don’t have to wait later.

What are the most common problems that hinder an application for a medical license or other health professional license in Florida?

Still waiting for your Florida medical license or other health professional license? Here are some reasons why it may be taking so long.

According to the Florida Board of Medicine‘s website on May 17, 2011:

NOT BEING COMPLETELY CANDID ABOUT YOUR HISTORY AND EDUCATION is the #1 reason for denial of an application for a full unrestricted license. Failure to disclose a problem will get you in trouble with the Board far more often than the problem itself.  Here are some other causes for delay in your application:

• Actions during postgraduate training
• Hospital staff privileges with action/termination of employment
• Action by a specialty board
• Action by another state regulatory board
• Misdemeanor or felony convictions
• Results of the criminal background check
• Civil judgments/malpractice
• Medical, physical, mental or chemical dependence impairment/condition within the last five years
• Lack of active practice
• Action by DEA
• Action by the military
• Applications that require Petition of Waiver/Variance

Do most complete applications get approved?

Yes, most applicants are granted an unrestricted Florida medical license. Those applicants who are not issued an unrestricted license may have the following occur:

• Approval with conditions such as a fine, corrected application and new application fee.
• Approval with condition such as taking or retaking an examination.

The Board may also outright deny the license, or may allow the applicant to withdraw the application.

TOP TEN WAYS TO GET YOUR APPLICATION PROCESSED QUICKLY

1. Mail the application to the correct address.
2. Keep in mind that any monies have to be processed by the Department vendor.  This may take a couple of days.
3. Identify any variation of names and nicknames.
4. Once you start the process, submit the application within 30 days so that your supplemental documents, including transcripts, will have an application file to go to.
5. Have the correct address on the application for training programs and hospitals.
6. Send in necessary back up documents in a timely manner.
7. Follow up with sources that are sending the Board of Medicine your documents.
8. Watch for letters or e-mail from your reviewer.  This is how we tell you what else is needed for your application to be complete.
9. If asked for follow-up information from the Board, please read the request carefully to identify exactly what is needed to make your application complete.
10. Answer questions honestly and provide an explanation where appropriate.

For more information about medical licenses and other legal matters, visit www.TheHealthLawFirm.com.

Doctor or Nurse, Please, Please, Please: Talk to an Attorney Before You Talk to an Investigator

Despite mailing out hundreds of thousands of postcards and letters to physicians, nurses, dentists, pharmacists, and psychologists  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.

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.

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 medical license revoked or have your nursing 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 professional 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 health professionals, 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.

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 health professionals 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.

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.

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.

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 health professional 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?

For more information about investigations and other legal matters, visit www.TheHealthLawFirm.com.