New Database Allows Consumers to Evaluate Nursing Homes Across the Country

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

Consumers have a new online tool to see which nursing homes are being hit with fines for poor quality, safety or maintenance. Nursing Home Inspect 2.0 is a free database that assists users in evaluating nursing homes across the country. The database was first introduced by ProPublica, a nonprofit investigative news organization, in August 2012. On December 17, 2012, the same organization introduced the 2.0 version that includes information about federal fines imposed on nursing homes in the past three years.

The website can be found at Propublica.org/nursinghomes.

According to the website, the information provided comes from government inspection reports from the Centers for Medicare and Medicaid Services (CMS).

Fines Against Nursing Homes are Handed Out Inconsistently.

On the front page the website shows colored maps of the United States. The maps break down each state’s number of deficiencies and average fine amount. From a quick glance at the maps you can see states have imposed federal fines inconsistently.

In an interview with the Orlando Sentinel, an analyst who helped develop the website said nursing homes in some states pay a steep price for misconduct, while those in neighboring states don’t. An example used in the article shows that the average fine paid by a nursing home in South Carolina in the past three years is $40,507. The average fine in Texas is $6,933. Florida sits in the middle nationally, with an average fine of a little more than $17,000.

Click here to read the article from the Orlando Sentinel.

Nursing Homes Under the Watchful Eye of the Government.

Recently the Office of the Inspector General (OIG) Department of Health and Human Services (HHS) released its annual Work Plan.  This Work Plan is an overview of how the OIG intends to carry out its mission to make the Medicare and Medicaid programs run more smoothly and efficiently.

Of particular importance to Medicare and Medicaid providers is the Work Plan’s detailing of particular areas and billing codes and practices that will be under additional scrutiny during the 2012-2013 fiscal year. Nursing Homes are on the list due to the large source of abuse of federal healthcare dollars.

To learn about several key areas in nursing homes that will be under additional scrutiny, click here.

Contact Health Law Attorneys Experienced with Nursing Home Cases.

The Health Law Firm and its attorneys represent nursing homes and nursing home employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

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

Comments?

Would you use this new database? Do you think the way states and the CMS fine nursing homes across the country is fair ? Please leave any thoughtful comments below.

Sources:

Jameson, Marne. “New nursing home inspection website helps consumers make choices.” Orlando Sentinel. (December 17, 2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-nursing-home-inspection-website-20121217,0,171167.story

Lade, Diane. “Consumers Can Search Nursing Home’s Fines.” Sun Sentinel. (December 18, 2012). From: http://www.sun-sentinel.com/health/fl-nursing-home-inspect-20121217,0,887722.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.  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.

What Nurses Need to Know about Florida Law and HIV Testing

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indest9By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Section 381.004, Florida Statutes, provides for an increased level of protection of medical records that contain human immunodeficiency virus (HIV) test results. The super confidentiality requirements imposed by Florida law are viewed as the precautions which must be taken both before an HIV test can be performed and after the HIV test is performed to ensure patient confidentiality.

Pre-Test Requirements.

The administration of an HIV test requires the informed consent of the patient for whom the HIV results will be obtained. No person in Florida may order an HIV test without first obtaining the informed consent of the person upon whom the test is being performed. Section 381.004(3)(a), Florida Statutes. Consent need not be in writing if the medical record documents that consent was given. Section 381.004(3)(a), Florida Statutes. Informed consent must be preceded by an explanation of the right to confidential treatment of information identifying the subject of the test and the results of the test to the extent provided by law. Information must also be provided on the fact that a positive HIV test result will be reported to the county health department with sufficient information to identify the test subject and on the availability and location of sites at which anonymous testing is performed.

Post-Test Requirements.

Notification – Once an HIV test has been administered, there are a number of statutorily prescribed steps that a health care professional must follow. All reasonable efforts must be made to notify the test subject of his or her test result. Section 381.004(3)(c), Florida Statutes. Notification of a person with a positive test result will include information on the availability of appropriate medical and support services, the importance of notifying partners who may have been exposed, and preventing the transmission of HIV. When testing occurs in a hospital emergency department, detention facility, or other facility and the test subject has been released before being notified of positive test results, informing the county health department for that department to notify the test subject fulfills this responsibility. No test result shall be determined as positive, and no positive test result shall be revealed to any person, without corroborating or confirmatory tests being conducted except in the following situations:

1. Preliminary test results may be released to licensed physicians or the

medical or nonmedical personnel subject to the significant exposure for purposes of
subparagraphs (3)(h)10., 11., and 12.

2. Preliminary test results may be released to health care providers and to the
person tested when decisions about medical care or treatment of, or recommendation to, the person tested and, in the case of an intrapartum or postpartum woman, when care, treatment, or recommendations regarding her newborn, cannot await the results of confirmatory testing. Positive preliminary HIV test results shall not be characterized to the patient as a diagnosis of HIV infection. Justification for the use of preliminary test results must be documented in the medical record by the health care provider who ordered the test. This subparagraph does not authorize the release of preliminary test results for the purpose of routine identification of HIV-infected individuals or when HIV testing is incidental to the preliminary diagnosis or care of a patient. Corroborating or confirmatory testing must be conducted as followup to a positive preliminary test. Results shall be communicated to the patient according to statute regardless of the outcome. Except as provided in this section, test results are confidential and exempt from the provisions of Section. 119.07(1), Florida Statutes. Section 381.004(3)(d), Florida Statutes.

Confidentiality.

Once an HIV test has been performed and the results have been obtained, confidentiality must be preserved. The identity of any person upon whom a test has been performed and test results must be held confidential. Section 381.004(3)(e), Florida Statutes. No person who has obtained or has knowledge of an HIV test result may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test,
except for the following reasons:

1. Patient Release. Consent for disclosure by the subject may be obtained in
a “legally effective release.” Section 381.004(3)(e)(1-2), Florida Statutes.

2. Authorized agents or employees of providers and facilities. Personnel
within a single facility or provider are authorized to disclose to each other
on a “need to know” basis.

3. Health care consultation. Health care providers that are not employees of
the same provider or facility may disclose HIV test results to each other
without the subject’s consent, provided they are involved in the care or
treatment of the test subject and the consultation is for the purpose of the
patient’s diagnosis or treatment. 381.004(3)(e)(4), Florida Statutes.

4. Department of Health. The Department may share HIV test results “in
accordance with rules for reporting and controlling the spread of disease,
as permitted by state law.” 381.004(3)(e)(5), Florida Statutes.

5. Transfer of body parts. Health care facilities and providers who transfer
body parts and semen, for the purposes of artificial insemination, may
disclose HIV test results to each other. 381.0041, Florida Statutes.

6. Health facility staff committees may disclose HIV test results for the
purposes of conducting program monitoring, program evaluation, or
service reviews pursuant to Chapters 395 and 766, Florida Statutes.

7. Research. HIV test results may be disclosed to authorized medical and
epidemiological researchers who are then prohibited from disclosing any
identifying characteristics or information regarding test subjects. Section
381.004(3)(e)(8), Florida Statutes.

8. Court Orders. Subpoenas are not sufficient under Florida law for the
release of HIV test results. A court order must be obtained and this
process is not easily accomplished. A “compelling need” must be
demonstrated by the individual seeking the results and the court must
balance this need against the test subject’s privacy rights as well as
public’s interests in privacy.

9. Workers’ Compensation. An administrative law judge of compensation
claims of the Division of Workers’ Compensation may authorize
disclosure of HIV test results, but only upon a finding that the person
seeking the test results has demonstrated a compelling need for the results.

10. Custodians of Children. Under Section 381.004(3)(e)(11), Florida
Statutes, there are three classes of persons allowed access to HIV test
results:

a. Department personnel and other employees “directly
involved in the placement, care, control or custody” of
the tested child who demonstrate a need to know;

b. Adoptive parents of the tested subject; or

c. An adult custodian, relative or other person responsible
for the child’s welfare if the parent or legal guardian
cannot be reasonably located and informed of the test
result.

Oral Disclosure.

Oral disclosure of HIV test results shall be accompanied by oral notice and followed by a written notice within 10 days. This written notice shall include the following statement: “This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.” Section 381.004(3)(f).

Penalties.

Any violation of this section by a facility or a licensed health care provider is grounds for
disciplinary action contained in the facility’s or professional’s respective licensing chapter. Any person who violates the confidentiality provisions commits a misdemeanor of the first degree. Any person who obtains information that identifies an individual who has a sexually transmissible disease, including human immunodeficiency virus or acquired immunodeficiency syndrome, who knew or should have known the nature of the information and maliciously, or for monetary gain, disseminates this information or otherwise makes this information known to any other person, except by providing it either to a physician or to a nurse employed by the department or to a law enforcement agency, commits a felony of the third degree. Section 381.004(6), Florida Statutes

Conclusion.

The use of tests designed to reveal a condition indicative of human immunodeficiency virus infection is a valuable tool in protecting the public health. Many members of the public are deterred from seeking such testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The laws imposed on the super confidentiality of HIV testing are intended to benefit the public health and the public will be benefited by the nursing profession, when those nurses serve by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

“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.

What Happens at a Board of Nursing Meeting?

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George F. Indest III is Board Certified by The Florida Bar in Health Law

George F. Indest III 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

The Florida Department of Health has many boards which regulate various licensed health care professions. One of the boards that makes up the Department of Health is the Board of Nursing. The Board of Nursing regulates the nursing profession.

The Board of Nursing holds public meetings in which it conducts all of its business. These meetings are scheduled in advance. Notice of when and where they are going to be held is available on its website usually several months in advance. The Board of Nursing rotates its meetings around the state, each time meeting in a different major city. Therefore, one meeting may be help in Jacksonville, the next meeting may be held in Ft. Lauderdale, and the next meeting may be held in Orlando.

The Board of Nursing is required by law to publish its agenda ahead of time so that the public is aware of matters that may come up in the event they want to attend the meeting. Usually these are published from 20 to 30 days ahead of time. Board of Nursing meetings are very interesting. Usually, nursing schools will require their students to attend, if the meeting is held near them.

If you have never attended a Board of Nursing meeting, you should. You should especially attend one of you have a pending Department of Health investigation against you. Attending a Board of Nursing meeting will give you a lot of insight into whether or not to elect an informal hearing if your case progresses past the probable cause panel stage. (See separate chapter in this Manual on DOH investigations and hearings).

Did you know that you can obtain continuing education units (CEUs) just for attending a Board of Nursing meeting? You can receive up to eight hours of CEUs for this. Just be sure to sign in on the sign-in sheet on the table in or outside the meeting room in order to record your attendance and obtain a CEU certificate.

Meetings are Open to the Public. 

Board meetings are open to the public. Notice of meetings are published in the Florida
Administrative Weekly. A draft agenda is available, on the board website, at least one week before the meeting and for public inspection during the Board meeting. Due to the fact that the Board’s meetings are quasi-judicial meetings the public is requested to refrain from applause, booing or other emotional outbursts. There are rare occasions in which the Board and its members will enter an executive session, this is a non-public session, to discuss issues which are confidential.

Organization of the Board of Nursing.

The business of the Board revolves around committee reports, staff and counsel reports, review of licensure and examination applications and discipline for violation of the Florida Nurse Practice Act, Board rules and other laws. Committee meetings typically occur on Wednesday evening and Thursday morning. The major committees of the Board of Nursing include: Practice, Legislative, Education, Continuing Education, ARNP, CNA Council and Credentials.

The full Board of Nursing meets on Thursday afternoon to hear committee reports and other board business and on Friday the Board meets to hear discipline cases. The individuals who are most active at the Board meetings are the chair, vice chair, board members, board counsel, prosecuting attorneys, IPN and the executive director.

A. Chair/Vice Chair

The chair is responsible for the organization and running of the Board meetings. The agenda is prepared by staff but the Chair may alter or reorganize the sequence of issues. The Chair seeks to keep the board on task and often summarizes discussion. Unlike some organizations, the Chair is a full member of the Board and is required to vote on all issues, unless the Chair is recused because she has a conflict of interest on the issue in which she is voting on. Just like any other member of the Board the Chair may make motions and second motions of others. The Chair will also seek clarification from counsel, board members, staff and others if requested. The Vice Chair performs these duties in the absence of the Chair.

B. Board Members

Members of the Board are required to vote on all issues, unless they are recused because of a conflict of interest. A Board member who sits on a probable cause panel may have already heard some evidence in disciplinary cases and, therefore, that member is automatically recused from voting on the case when it appears before the full Board. Board members review around 35,000 pages of scanned documents on CD-ROM prior to a Board meeting; documents received after the CD is made are distributed in paper form prior to the meeting. The documents typically included in the CD are applications for licensure, administrative complaints against an individual, investigative reports, orders, stipulations and other records. Orders are legal documents filed by the Board to take action against an applicant or licensee. A stipulation is a tentative agreement between the prosecuting attorney and the respondent; however, the Board must approve a stipulation before it can take effect. Board members determine severity of discipline using established guidelines; the cost of investigation is always included.

C. Executive Director

The Executive Director is the person responsible for the functioning of the Board office. The office staff prepares the agenda in concert with counsel and prosecuting attorneys, organizes and schedules the meetings and facilities, publishes notices, provides public copies of documents and maintains records of proceedings. The staff also processes applications for licensure or examination, maintains disciplinary files, reviews applications for new nursing programs, monitors statistics and prepares reports as requested. Other administrative and support staff may be present during the Board meetings.

D. Board Counsel

An Assistant Attorney General serves as legal counsel to the Board. Counsel responds to requests from the Chair to clarify requirements in Florida laws and rules which may affect the Board decisions. Counsel prepares draft documents for Board review, including proposed rules. Counsel will also inform the Board members of possible legal issues or implications of various courses of action being contemplated. Often, several different sections of laws may affect a decision and the discussion may become confusing. After the meeting, Counsel will prepare the final orders and other documents that are to be filed and sent to respondents.

E. Prosecuting Attorneys

These attorneys from Medical Quality Assurance (MQA) Enforcement (sometimes called
“Prosecution Services Unit”) review all disciplinary cases and prepare materials for Board review. Administrative complaints outline the alleged violations of the Florida Nurse Practice Act, rules of the Board and other laws. Investigative reports provide information from witnesses, records and others about the situations described in the administrative complaint.

If the respondent selects an informal hearing before the Board, the prosecuting attorney reads a summary of the administrative complaint and provides legal notification of procedures followed in notifying the respondent. However, if you choose an informal hearing, you are agreeing that all facts in the administrative complaint are true and you are guilty of the allegations; the only issue left undecided is what your punishment is to be. This is the equivalent of a guilty plea or a no contest plea in a court of law. You may have good defenses that could be raised in a formal hearing and you have procedural rights which may result in dismissal of the case. When in doubt, you should always request a formal hearing.

Please see the separate chapter in this Manual on disciplinary hearings.

Remember, even if you have signed the election of rights form and waived your right to a formal hearing and requested an informal hearing, if you get to the Board of Nursing meeting and change your mind, tell them that you are contesting the facts of the case, that you are contesting your guilt and that you want to withdraw your decision to have an informal hearing. It is very important that you do this if you are really innocent.

Sometimes a stipulation (also called a settlement agreement, and which is similar to a plea bargain in a criminal case) is agreed to between the parties. The Board must still approve the stipulation before it becomes final. If the Board of Nursing rejects a stipulation you have agreed to, it may make you a counter-offer that contains more punishment. Always ask for time (at least a week) to think about the counter-offer. If the Board rejects the stipulation, you will then have the right to a formal administrative hearing to determine your guilt r innocence. You may want to do this.

If a respondent disputes the facts of a case, for example, if the Respondent wants to argue that he is really innocent of the charges, then a hearing before an administrative law judge (ALJ) will be held. When in doubt, you should always request a formal hearing.
Please see the separate chapter in this Manual on formal administrative hearings. The ultimate findings of the ALJ after the formal hearing will be sent to the Board for final action.

F. Respondents

There are two typical respondents that appear before the Board. The first type of respondent is an applicant for licensure or examination. These persons may have discipline in another state, positive findings during criminal background screening, deficiencies in education or other credentials. The Board reviews these cases to determine if the applicant can be approved for licensure or examination. If your application is going to be heard at a Board meeting it would be extremely wise to appear before the Board, should they want to ask you any questions, with a qualified attorney certified in health law.

The second type of respondent that typically appears before the Board is a licensee who has had a complaint filed against them for violation of the Nurse Practice Act, rules of the Board or other laws and rules. Some respondents may be required to appear before the Board; however, in most cases the choice is up top the respondent. An attorney may appear for the respondent; if the respondent chooses to be represented by an attorney it is best to have an attorney who has been certified in heath law and has
represented other nurses in disciplinary proceedings before. A respondent may also bring a witness to appear on their behalf. All respondents and witnesses are sworn under oath.

G. Intervention Project for Nurses (IPN)

Representatives from IPN are present Board meetings to provide reports on individuals enrolled in the program. In addition, if the Board orders a respondent to be evaluated by IPN, information about the process is immediately available. IPN provides evaluations and consultant services for nurses or candidates for licensure. Most services revolve around drug and alcohol abuse but may also include mental health or behavioral problems and psychological testing. See separate chapter in this Manual for more detail on IPN.

The Board of Nursing Meetings are Open.

The Board of Nursing is required to hold all of its meetings in a manner which is open and
accessible to the public. These Board meetings revolve around committee reports, staff and counsel reports, issues of interest to nurses, nursing practice issues, review of licensure and examination applications and discipline for violations of the Florida Nurse Practice Act, Board rules and other laws and regulations. You will learn quite a lot about your profession and how it is governed in the state of Florida by attending a Board of Nursing meeting. There is bound to be one near you soon.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

“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.

 

Detroit Nurse Will Spend Time Behind Bars for Signing False Medicare Claims

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indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Detroit-area registered nurse was sentenced on November 19, 2012, to 30 months in federal prison for his alleged part in a nearly $13.8 million Medicare fraud scheme. According to a Department of Justice (DOJ) press release, he will serve probation after being released from prison. He was also ordered to pay more than $450,000 in restitution, together with his co-defendants.

Click here to read the entire press release from the DOJ.

Nurse Paid Handsomely for Signing False Claims.

According to the nurse’s plea agreement, from December 2008 through September 2011, he was paid to sign medical records for a home health care agency that billed Medicare for services that were allegedly never rendered. The man reportedly admitted to not seeing or treating the Medicare beneficiaries for whom he signed medical documentation. He also admitted to knowing that the documents he signed were being used for false claims. According to an article from Health Exec News, the man was paid around $150 for each fake file that he signed.

To read the article from Health Exec News, click here.

Case Investigated by Medicare Fraud Strike Force.

Nine alleged co-defendants in this case have pleaded guilty and are waiting to be sentenced, while three others are fugitives and six more are awaiting trial, according to the DOJ. In total, the home health agency was paid close to $13.8 million by Medicare.

This case was investigated by the Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) as part of the Medicare Fraud Strike Force.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, Department of Justice (DOJ) investigations,  in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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 think the registered nurse received a sentence that was too harsh? Please leave any thoughtful comments below.

Sources:

Health Exec News. “Medicare Fraud Scheme: Nurse Gets Jail Time for Signing False Claims.” Health Exec News. (November 23, 2012). From: http://healthexecnews.com/nurse-medicare-fraud-scheme

Department of Justice. “Detroit-Area Nurse Sentenced to 30 Months in Prison for Role in $13.8 Million Home Health Care Fraud Scheme.” Department of Justice. (November 19, 2012). From: http://www.justice.gov/opa/pr/2012/November/12-crm-1389.html

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.

Legal Responsibilities of Nurse Supervisors

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

Although a nursing supervisor is liable for her own negligent acts, the employer is liable for the negligent acts of all employees, including nursing supervisors. Supervisors are not generally liable under the doctrine of respondent superior for the negligent acts of those being supervised, unless they can be shown to be independently negligent in how they supervise or fail to supervise. They have the right to direct the nurses who are being supervised. In a health care facility, the supervisor’s powers are derived directly from the facility’s right of control.

A supervisor who knowingly fails to supervise an employee’s performance or assigns a task to an individual he or she knows, or should know, is not competent to perform can be held personally liable if an injury occurs. The employer will be liable under the doctrine of respondent superior as the employer of both the supervisor and the individual who performed the task in a negligent manner. The supervisor is not relieved of personal liability even though the employer is liable under respondent superior.

In determining whether a nurse with supervisory responsibilities has been negligent, the nurse is measured against the standard of care of a competent and prudent nurse in the performance of supervisory duties. Those duties include the setting of policies and procedures for the prevention of accidents in the care of patients.

I. Failure to Properly Supervise.

Nursing supervisors must properly supervise the care rendered to patients by their subordinates.

A. Special Duty Nurse.

A special duty nurse is a nurse hired by the patient or the patient’s family to perform nursing care for the patient. An organization and its supervisors are generally not liable for the negligence of a special duty nurse unless a master-servant relationship can be determined to exist between the organization and the special duty nurse. If a master-servant relationship exists between the organization and the special duty nurse, the doctrine of respondent superior may be applied to impose liability on the organization for the nurse’s negligent conduct.

Like a staff physician, a special duty nurse may be required to observe certain rules and regulations as a precondition to working in the organization. However, the observance of organization rules is insufficient to establish a master-servant relationship between the organization and the nurse. Under ordinary circumstances a special duty nurse is employed by the patient, and the organization has no authority to hire or fire the nurse. The organization has the responsibility to protect the patient from
incompetent or unqualified special duty nurses.

B. Student Nurses. 

Student nurses are entrusted with the responsibility of providing nursing care to patients. When liability is being assessed, a student nurse serving at a health care facility is considered an agent of the facility. This is true even if the student is at the facility on an affiliation basis. Student nurses are personally liable for their own negligent acts and the facility is liable for their acts on the basis of respondent superior. Students must be supervised by a registered professional nurse who is either the direct agent of the student’s nursing school or one who has been designated by the school to serve in that capacity. A student nurse is held to the standard of a competent professional nurse when performing nursing duties. The courts, in several decisions, have taken the position that anyone who performs duties customarily performed by professional nurses is held to the standards of professional nurses. Each and every patient has the right to expect competent nursing services even if the care is provided by students as part of their clinical training. It would be unfair to deprive the patient of compensation for an injury merely because a student was responsible for the negligent act. Until it is demonstrated clearly that student nurses are competent to render nursing services without increasing the risks of injury to patients, they must be supervised more closely than graduate nurses.

II. Unlicensed Assistive Personnel.

Every time you delegate tasks to unlicensed assistive personnel (UAPs), you’re legally accountable for the outcome. What can you do to reduce your malpractice risk? Here are some tips:
1. Assess the patient’s needs, the staff available to meet those needs, and the
level of supervision required for a UAP to safely perform any task you
delegate;

2. Know the training and qualifications of the UAPs you supervise;

3. Assign the right person to carry out a task, based on her competence and
the patient’s condition;

4. Provide clear directions for the task you want performed. Ensure that the
UAP understands your expectations and knows to ask for help if questions
or problems arise;

5. Monitor the UAP’s performance of the task and the patient’s response; and

6. Accurately document the care provided.

Once a UAP is hired, the supervisor must delegate tasks appropriate to the UAP’s training,
credentials, and experience. If the tasks exceed the UAP’s competency level, the employer may be liable for negligent training. Furthermore, under the theory of vicarious liability nurses, physicians, facilities, or agencies may be held responsible for UAPs’ actions. In essence, a supervisor is liable if she assigns inappropriate tasks to anyone who lacks the skill or training to perform them. A good way to prepare UAP’s is to provide standardized training or testing in basic skills and to assign only tasks in which the UAP’s have shown competency.

III. Inadequate Staffing.

Health care organizations must continuously monitor their staffing needs in order to provide adequate care. The organization’s leaders, including nurse supervisors, define for their respective areas the qualifications and job expectations of staff and to evaluate the degree to which expectations are satisfied. Under federal law nursing facilities must have sufficient nursing staff to provide nursing and related services adequate to attain and maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident, as determined by resident assessments and individual plans of care. Nursing facilities must provide 24-hour nursing services that are sufficient to meet the total nursing needs in accordance with patient care plans. 42 C.F.R. § 483.20 (1989). As nursing facilities are increasingly filled with older, disabled residents with ever-increasing complex care needs, the demand for highly educated and trained nursing personnel continues to grow. Inadequate career ladders and wage scales lower than those found in acute care hospitals, make it difficult for long-term care facilities to attract nurses.


Nursing Law Manual.

This blog post came from The Florida Nursing Law Manual.

The Florida Nursing Law Manual and the forms and information contained in it is for general information and education only. It is not intended to be and does not constitute the provision of legal advice. Every case, every individual, and every set of circumstances is different. You should always consult with your own attorney when making any legal decision. We recommend that you only use an attorney who is Board Certified by the Florida Bar in the Legal Speciality of Health Law and who is experienced in the legal matters at issue.
Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent nurses in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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.

“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.

New Immigration Law in Georgia Slows Down License Renewal Process for Doctors and Nurses

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

Hundreds of Georgia health providers are without a professional license to practice, because a new immigration law is causing massive backups in paperwork, according to a number of sources. The Illegal Immigration Reform and Enforcement Act of 2011 or House Bill 87 went into effect on January 1, 2012, and requires every person to prove his or her citizenship or legal residency when the individual renews his or her license.

To read House Bill 87 in its entirety, click here.

With all of the extra paperwork required and too few staff members at the reviewing state agencies, many licenses are expiring before they can be renewed. Shortages of staff are being reported at the Georgia Secretary of State’s office and Georgia’s Medical Board. Licenses being affected include licenses for doctors, nurses, pharmacists and other health providers are falling through the cracks and expiring. According to a Kaiser Health News story released November 12, 2012, there’s not much that can be done to speed up the process.

So Far Georgia House Bill 87 Is Creating Confusion and Issues for Citizens.

Georgia House Bill 87 was aimed at blocking illegal immigrants from getting benefits but instead has created lots of confusion, according to an article in the Atlanta Journal-Constitution. For example, when people are confused about the requirements and fail to not submit copies of acceptable identification, then their professional licenses expire and they are not legally allowed to practice.

It is reported that some individuals, instead of forwarding copies of photo identification, are sending photos of animals or pornography into the state’s online system. Officials believe this is either a form of protest or a joke, either way it slows down the review process.

To read the article from the Atlanta Journal-Constitution, click here.

Providers Be Aware of Medicare Conditions of Participation.

Providers need to be forewarned that if their licenses are expired Medicare conditions of participation (COPs) prohibit billing for services provided. If a service was provided while the license was expired, be prepared to refund the overpayments.

Around 1,300 Doctors and Nurses Cannot Practice Due to Incorrect
Paperwork.

Last year, the secretary of state’s office received more than 49,000 new applications for licenses and since 2008 the state licensing division has lost almost 40 staff members.

According to the Atlanta Journal-Constitution, the average time it takes for the state to process new license applications has jumped from 60 days to 70 days. The same goes for renewal applications. It used to take two days to renew a license, but now it takes 10 days.

According to Kaiser Health News, it’s estimated that 1,300 doctors, nurses and other health professionals have lost their ability to work either because they did not send in the correct paperwork, or they are stuck in the backlog of work.

The same article stated so far the new document requirements have yet to find any illegal immigrants.

Click here to read the entire article from Kaiser Health News.

Georgia Nursing and Pharmacy Associations Warning Members of Delays.

The Georgia Nursing Association and the Georgia Pharmacy Association are monitoring this situation closely. The pharmacy association has been informing members about the new identification requirements and urging them to not put off applying for their licences.

Click here to see a warning about the process from the Georgia Pharmacy Association.

Contact Health Law Attorneys With Experience Handling Licensing Issues.
If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career.  Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, pharmacists, medical groups, clinics, and other healthcare providers in personal and facility licensing issues all over the country.

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 health professional what   do you think about this new law in Georgia? Do you think it is ridiculous or a necessary process? Please leave any thoughtful comments below.

Sources:

Burress, Jim. “Doctors’ And Nurses’ Licenses Snagged By New Immigration Law In Georgia.” Kaiser Health News, WABE, Atlanta and NPR. (November 12, 2012). From: http://www.kaiserhealthnews.org/Stories/2012/November/12/Georgia-immigration.aspx

Redmon, Jeremy. “New ID Law Gums Up Licensing Process.” The Atlanta Journal-Constitution. (October 15, 2012). From: http://www.ajc.com/news/news/new-id-law-gums-up-licensing-process/nSc6g/

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.

Almost 19% of Nurse Aides Charged with Abuse and Neglect, had Prior Criminal Records

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

A report released by the Department of Health and Human Services (HHS) Office of Inspector General (OIG) on October 5, 2012, found that nineteen percent (19%) of long-term care nurse aides who were found guilty of on-the-job abuse, neglect or property theft in 2010 had prior criminal records that would have showed up on a background check.

Click here to read the entire report from the HHS OIG.

Report is Part of the Affordable Care Act Background Check Program.

Section 6201 of the Affordable Care Act establishes a background check program. This voluntary program gives grants to states that support nursing home employee background checks.

The report was released to assess the ability of the background check program to help decrease the number of neglect, abuse and misappropriation of resident property cases.

Majority of Nurse Aides Convicted of Burglary, Larceny and Other Crimes.

Out of 1,611 nurse aides charged with abuse, neglect or property theft in 2010, 300 nurse aides had at least one prior criminal conviction. The Inspector General (IG) found the majority of disciplined nurse aides with records had been convicted of burglary, larceny or other crimes against property.

Of the 300 nurse aides, 170 of them had at least one conviction prior to their date of registration as a nurse aide. The remaining 130 nurse aides, each had at least one conviction after the date of their registration.

In a National Public Radio (NPR) story, a nursing professor from the University of California, San Francisco, said she is “most disturbed by the fact that nursing homes had hired some aides who’d been convicted of serious crimes.”

Click here to read the NPR article.

Contact Health Law Attorneys Experienced in Representing Nurses and Nurse Aides.
The Health Law Firm’s attorneys routinely represent nurses and nurse aides in Department of Health (DOH) investigations, in appearances before the Board of Nursing in licensing matters and in many other legal matters. We represent nurses across the U.S., and throughout Florida.

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?

As a nurse, nursing aide or any other health professional, what do you think of this report? Please leave any thoughtful comments below.

Sources:

Schultz, David. “Among Disciplined Nurse Aides, Criminal Records Turn Up.” NPR. (October 11, 2012). From: http://www.npr.org/blogs/health/2012/10/11/162636910/among-disciplined-nurse-aides-criminal-records-turn-up

Wright. Stuart. “Criminal Convictions for Nurses Aides With Substantiated Findings of Abuse, Neglect, and Misappropriation.” Department of Health and Human Services Office of Inspector General. (October 5, 2012). From: http://www.thehealthlawfirm.com/uploads/Criminal%20Convictions%20for%20nurses%20aides.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. 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 Woman Arrested for Allegedly Stealing from Disabled Adults

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George F. Indest III is Board Certified by The Florida Bar in Health Law

By Dr. Thu Pham, O.D., Law Clerk, The Health Law Firm Attorney and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A former employee of an organization that provides services to developmentally disabled adults in Alachua County, Florida, was arrested on June 15, 2012, according to the Attorney General’s (AG) Office. The woman was arrested for allegedly stealing money from 11 clients in 2010 and 2011.

To see the press release from the AG, click here.

Medicaid Fraud Control Unit’s (MFCU) Investigation Led to Arrest.

The woman was a group home manager at the organization that provides support to developmentally disabled adults. She was allegedly responsible for her clients’ money. In a Gainesville Sun article the associate director of the organization said it’s a policy to make monthly audits of its clients’ money. One month, at the house where this woman worked, the money did not add up.

According to the AG, the arrest came after an investigation by the Medicaid Fraud Control Unit (MFCU). She was arrested on allegations of exploiting 11 disabled adults and has been allegedly charged with stealing more than $1,300 from her clients.

If convicted, she faces up to 60 years in prison and a $60,000 fine.

To see the entire article from The Gainesville Sun, click here.

 

MFCU and State and Federal Auditing Agencies.

The MFCU receives referrals from many other state and federal agencies. Sometimes, matters that could be resolved as simple billing errors get escalated to criminal charges when Medicaid providers are interviewed and give evidence against themselves. Admitting to any misconduct, no matter how slight, may lead to far more serious criminal charges.

Click here for tips on how to respond to an audit by the Medicaid Fraud Control Unit.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Healthcare Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health attorney familiar with medical billing and audits today.  Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, nurses, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

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

Sources:

Meale, Jenn. “Attorney General Bondi Announces Arrest of Alachua County Woman for Exploiting 11 Disabled Adults.” My Florida Legal. (June 15, 2012). From: http://www.myfloridalegal.com/newsrel.nsf/newsreleases/6D12D500A38B755D85257A1E006389E5

Smith, Chad. “Former Arc Employee Arrested on Exploitation Charges.” The Gainesville Sun. (June 15, 2012). From: http://www.gainesville.com/article/20120615/articles/120619706?template=printart

About the Authors: Dr. Thu Pham, O.D., is a law clerk 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.

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.

Overcoming License Suspension and Revocation Pending Appeal

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By: Lance O. Leider, J.D.

If you are a doctor, nurse, dentist, psychologist, pharmacist, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. Ordinarily, you must immediately stop practicing or you risk being prosecuted for unlicensed practice, a felony. Although this blog deals with Florida law, similar relief may be available in other states, too.

One of the hardest things about having a license suspended or revoked is that it immediately cuts off the licensee’s sole source of income. If you have a thriving practice, this will usually destroy any value your business has. Without income, paying your bills will be a challenge, much less the cost to fight the legal action or to appeal.

Even if you appeal the decision and win the appeal, you will be out of practice for many months, often more than a year, before your license is reinstated. You still have all the lost income and business, and you never get this time and money back.

Fortunately, Florida law provides an avenue for temporary relief from the adverse decision, so that you may retain your license and practice your profession pending appeal of your case. This legal process is called a writ of supersedeas.

What is Supersedeas Relief?

Supersedeas relief is a form of relief granted by a reviewing court (court of appeal) that suspends the enforcement of the judgement of the lower court (or agency) while the underlying issues are decided on appeal. What this means is that you can have the action to revoke or suspend your license put on hold while you appeal the decision of the Department of Health (DOH).

This relief is authorized in two separate places in Florida law: Section 120.68(3), Florida Statutes, and Rule 9.190(e)(2)(C), Florida Rules of Appellate Procedure. Both of these provisions state that a reviewing court can grant a stay of enforcement of the revocation or suspension of a license pending review.

The relief is not automatic, however. Both provisions specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. Fortunately, it is the burden of the agency whose order is being reviewed to prove that there is a danger to the public.

Additionally, the Appellate Rule permits you to ask for expedited review. (Which of course is recommended because you want to be back to work as quickly as possible, right?) This means that the agency only has ten (10) days to file its opposition. This shortened time period may make it difficult for an overworked government attorney to file on time or to produce quality opposition.

Steps to Seeking Supersedeas Relief.

1. File an appeal of the Final Order revoking or suspending your license with the appropriate agency and a copy to the appellate court. Be sure to follow all appellate rules and instructions.

2. File a Petition for Expedited Supersedeas Relief with the appellate court at the same time.

3. If you receive a favorable ruling from the court, deliver that order to the licensing agency (in this case, the DOH) and request that your license be reinstated immediately.

Other Considerations.

It is important to note that this form of relief will not make the underlying action disappear. Your return to practice will only be temporary, unless you win the appeal. You will still have to show the licensing agency did something contrary to law when it imposed the discipline in order for the appellate court to overturn the decision. This is not often an easy task. Furthermore, the law only permits a thirty (30) day window in which to appeal the agency’s decision, after which your rights are lost and you are very likely stuck with the decision.

Appeals Are Very Technical and Require a Thorough, Specialized Knowledge of the Law.

What few people understand is that appeals are very technical and have complex, procedural rules that you must follow. An appeal of an agency final order is not the place to argue about the facts of your case or to try to prove different facts.

An appeal is all about the law and the court cases that have interpreted the law. Unless the agency (in this case your board) made a legal error and violated the law, you won’t win.

For an appeal, a person needs an attorney. To prevail on an appeal, you must have a detailed knowledge of the correct, relevant court cases and you must be able to argue these in the proper form in legal briefs.

There are many other procedural steps you must follow in an appeal that only a good appellate attorney will know. To attempt to do this yourself is not advisable.

Contact Health Law Attorneys With Experience Handling Licensing Issues.

If you have had a license suspended or revoked, or are facing imminent action against your license, it is imperative that you contact an experienced healthcare attorney to assist you in defending your career. Remember, your license is your livelihood, it is not recommended that you attempt to pursue these matters without the assistance of an attorney.

The Health Law Firm routinely represents physicians, dentists, nurses, medical groups, clinics, and other healthcare providers in personal and facility licensing issues.

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: 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.