Florida Bill to Expand Authority of Nurses Flatlines During 2014 Legislative Session

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar   in Health Law

The 2014 Legislative Session ended May 2, 2014, with the death of an omnibus health bill. House Bill 7113 would have provided provisions to expand the power of nurse practitioners to work independently of physicians’ oversight. This extension of authority to nurses would no longer require them to contract with and pay a “supervising” physician. The bill died after being passed back and forth between the Florida House of Representatives and the Florida Senate numerous times. It could not be resuscitated or kept alive by artificial means.

Currently, Florida nurse practitioners must work under direct supervision of physicians. The bill would have changed the title of nurse practitioners or advanced registered nurse practitioners. These are registered nurses with post-college education, usually a Master’s degree. The denied change would have retitled these health professionals to advanced practice registered nurses (APRNs). The bill would have also provided nurses the authority to sign documents that currently require a physician’s signature. This would have included the ability to prescribe controlled substances.

There is a total of 17 states in the United States that have adopted similar bills allowing nurse practitioners to work independently of physicians as APRNs.

To read the entire article from Modern Healthcare, click here.

Conflicting Opinions of the Bill.

Proponents of expanding nurse practitioner autonomy argue that the bill would reduce health care costs in addition to solving a critical shortage of primary care physicians. Because of the high enrollment numbers associated with the Affordable Care Act (ACA), it is anticipated that the need for physicians and health care providers will dramatically increase. Supporters also argue that northerners will be accustom to treatment by nurse practitioners because states such as Connecticut and New York have passed similar bills. They will expect the same level of care when moving to Florida during the winter months.

Opponents of the bill, led by various medical associations, argue the dangers of allocating such power to nurses. They warn that nurses should not have access to prescribing controlled substances without a doctor’s supervision. This argument is defended by highlighting Florida’s constant struggles with high numbers of pill mill busts. The medical associations opposing the bill are passionate in preserving the practice of medicine for the physician. In the end, opponents were granted their wish.

To read more on House Bill 7113, click here for a previous blog.

Even though the bill did not pass this legislative session, we expect this will not be the end of the fight to allow nurse practitioners to work independently of physicians.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced practice registered nurses, certified registered nurse anesthetists, midwives and licensed practical 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.

Comments?

Is providing a trained nurse practitioner with greater authority to treat and prescribe really a controversial subject? How do you stand on the topic? What benefits or dangers could arise from providing nurses with greater independence? Please leave any thoughtful comments below.

Sources:

“Health Bill Dies in Florida Legislature.” Modern Healthcare. (May 3, 2014). From: http://www.modernhealthcare.com/article/20140503/INFO/305039930

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 © 1996-2014 The Health Law Firm. All rights reserved.

 

 

 

 

Will Florida Senate Be Pressured into Expanding the Authority of Nurses?

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

On April 28, 2014, the Connecticut House of Representatives approved a bill giving nurse practitioners greater autonomy to diagnose and treat patients without doctors’ oversight. Connecticut is one out of 17 states and the District of Columbia to allow nurse practitioners to work independently of physicians. Similar measures are pending in several other states, including Florida.

The Florida House of Representatives passed the bill (CS/CS/HB 7113) on April 25, 2014, that expands the range of practice for Advanced Practice Registered Nurses (APRNs). The bill is expected to be heard in the Florida Senate soon. If passed, this policy shift would likely lead to profound changes in the way health care is practiced in Florida.

Details of the Florida Bill.

Currently, in Florida, nurse practitioners must work under the supervision of physicians. This bill would change the title of what are usually called nurse practitioners or advanced registered nurse practitioners. These are registered nurses who have post-college education, usually a master’s degree. The proposed change would retitle these health professionals to advanced practice registered nurses (APRNs).

These nurses would gain new authority under the bill, such as the ability to sign documents that now require a physician’s signature, and the opportunity to earn the title “Independent Advance Practice Registered Nurse” after a certain amount of training and experience. Nurse practitioners would no longer have to contract with and pay a “supervising” physician. Another somewhat controversial aspect of the bill is to allow these nurses to gain the authority to prescribe controlled substances.

Increasing Pressure to Pass Similar Bill.

The present Florida bill is being supported as a means to fulfill the anticipated growing need for medical services expected with the implementation of the Affordable Care Act. Especially in certain segments of the medical population, APRNs are already providing a large amount of this care, and the bill acknowledges and grants the authority for this.

With so many states, especially up in the northeast, agreeing to expand the scope of practice to qualified nurse practitioners, we wonder if this will have an effect on the Senate vote in Florida. Snow birds coming to Florida will be comfortable being treated by nurse practitioners and will expect the same level of care when they come down to the Sunshine State.

Opposition May Kill the Bill.

The opposition to this effort is strong and vocal, with the various state medical associations leading the way. For these groups, the issue is one of preservation of the practice of medicine as the domain of the physician. They are accepting of medical practice by physician “extenders,” but not by “providers” who are not physicians. The members of these opposition groups are a formidable force, respected in their communities and able to make significant political contributions. These are not groups that many legislators would want to rankle.

However, a review of the history of medicine in the United States shows that this is a battle the medical doctors are likely to lose. Similar arguments have been made in the past when other types of health care practitioners have sought legal authority to practice their professions. Immediately coming to mind are osteopathic physicians (D.O.s), chiropractic physicians (D.C.s) and midwives (CMs) to name a few. Some have had to bring antitrust lawsuits to obtain relief.

Be sure to check this blog regularly for updates to this story.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced practice registered nurses, certified registered nurse anesthetists, midwives and licensed practical 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 http://www.TheHealthLawFirm.com.

Comments?

What are your thoughts on the bill? Do you think nurse practitioners should have more autonomy? Or do you believe nurse practitioners should be supervised by physicians? Please leave any thoughtful comments below.

Sources:

Altimari, Daniela. “State Moves to Give Nurses Independence From Doctors.” The Courant. (April 28, 2014). From: http://www.courant.com/health/connecticut/hc-aprn-bill-20140428,0,7595375.story

Catala, Paul. “Bill Giving Nurses More Authority Passes House.” Highlands Today. (April 28, 2014). From: http://highlandstoday.com/hi/local-news/bill-giving-nurses-more-authority-passes-house-20140429/

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.

Florida Nurse Practitioners Fight for Autonomy

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

On February 18, 2014, a bill that would expand the authority of nurse practitioners and would allow some to practice independently of physicians was approved by the Florida House Select Committee on Health Care Workforce Innovations. Despite opposition from physician groups, the bill (PCB SCHCWI 14-01) was overwhelmingly approved 13 to 2. However, some of that support might be fleeting.

To read bill PCB SCHCWI 14-01, click here.

Details of the Bill.

Currently, nurse practitioners work under the supervision of physicians. This bill would change the title of what are usually called nurse practitioners, which are registered nurses who have post-college education, usually a master’s degree, to Advanced Practice Registered Nurses (APRNs). The bill would also apply to specialists, such as certified registered nurse anesthetists (CRNAs), certified nurse midwives and certified nurse practitioners.

These nurses would gain new powers under the bill, such as the ability to sign documents that now require a physician’s signature, and the opportunity to earn the title “Independent Advance Practice Registered Nurse” after a certain amount of training and experience. Nurse practitioners would no longer have to contract with and pay a “supervising” physician. Another controversial aspect of the bill is to allow these nurses to gain the authority to prescribe controlled substances. Currently, Florida is one of the few states that do not allow this.

Supporters and Opponents Cannot Agree.

Even though the vote drew bipartisan support, several committee members said their support was tentative, and that they wanted to see further debate and amendments.

According to Health News Florida, the President of the Florida Senate reported he opposes the House bill. Many physician groups, including the Florida Medical Association, agree. These groups point out that physicians receive years of additional training to provide care. They also raise the question why students would want to rack up huge amounts of debt to attend medical school if they could do much of the same work as nurse practitioners with less schooling.

Supporters state this bill will help increase access to primary care, particularly in rural areas. Nurse practitioners also state they already provide much of the care that physician groups bill for. It’s argued that similar laws are already in place in a majority of states around the country, according to The News Service of Florida. To read the entire article from The News Service of Florida, click here.

Expanded Scope of Practice for Nurse Practitioners Already Working in Other States.

According to Health News Florida, 23 other states already allow independent practice for nurse practitioners. Also, military services and the Veterans Administration Health System, already allow nurse practitioners to prescribe controlled drugs and allow independent practice. Florida is the only state that prohibits nurse practitioners from prescribing controlled substances.

According to Health News Florida, the issue is not expected to be considered during the upcoming Legislative session. Click here to read the entire Health News Florida article.

Be sure to check this blog regularly for updates to this story.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm’s attorneys routinely represent registered nurses, nurse practitioners, advanced registered nurse practitioners, certified registered nurse anesthetists, midwives and licensed practical 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 http://www.TheHealthLawFirm.com.

Comments?

What are your thoughts on the bill? Do you think nurse practitioners should have more autonomy? Or do you believe nurse practitioners should be supervised by physicians? Please leave any thoughtful comments below.

Sources:

Saunders, Jim. “Nurse Practitioners Win First Round In Fight Over ‘Scope.’” The News Service of Florida. (February 22, 2014). From: http://www.theledger.com/article/20140222/NEWS/140229772/1374?Title=Nurse-Practitioners-Win-First-Round-In-Fight-Over-8216-Scope

Gentry, Carol. “Senate Pres.: No On Nurses’ Bill.” Health News Florida. (February 24, 2014). From: http://health.wusf.usf.edu/post/senate-pres-no-nurses-bill

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 © 1996-2014 The Health Law Firm. All rights reserved.

Indiana Nurses Fired for Refusing to Get Flu Shots

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 warnings have been loud and clear from the Centers for Disease Control and Prevention (CDC). This influenza season is off to an early and serious start. With that in mind, a number of states are requiring all health professionals in the state to receive the flu vaccination. Some of those opposed to getting vaccinated are being fired by hospitals and health facilities. Because of this, a controversy is arising between employee rights and patient safety, according to a number of news sources.

Click here to read more on this year’s flu season from the CDC.

Agenda Calls for a 90% Average Vaccination Rate of Health Professionals by 2020.

In December 2010, the Department of Health and Human Services (DHHS) announced a 10-year agenda to improve the nation’s health. It’s called Healthy People 2020. A part of this agenda calls for a ninety percent (90%) average vaccination rate of health professionals. Click here to read the press release on the Healthy People 2020 initiative from the DHHS.

According to an American Medical News article, there’s a push in the medical community to meet this goal as soon as possible. The CDC states that as of November 18, 2011, close to eighty-four percent (84%) of doctors in the U.S. had been immunized against influenza. The CDC is praising these doctors for this high number, hoping other health professionals and the public will follow suit.

The safety of patients is the chief reason for the mandate. In an ABC News article, one Indiana hospital said that it implemented the mandatory vaccine in September of 2012, to promote patient safety. Of the hospital’s 26,000 employees statewide, ninety-five percent (95%) have complied.

Two Indiana Nurses and Others Fired for Not Getting Vaccinated.

A large majority of employees at the Indiana hospital complied with the mandate; however, 1,300 employees did not. According to ABC News, eight employees, including at least three veteran nurses, were allegedly fired because they refused to get a flu vaccine.

The fired nurses are standing their ground, saying they should have the right to refuse the flu vaccine. One nurse had filed two medical exemption requests, a religious exemption request and two appeals. All were denied by the hospital. To read more on this story from ABC News, click here.

In October 2012, Rhode Island mandated immunizations for all health care workers who have patient contact. On December 6, 2012, a health care worker union filed a federal lawsuit against the Rhode Island Department of Health (DOH) to prevent it from implementing the regulations, according to a Fierce Healthcare article. Click here to read the entire Fierce Healthcare article.

Fighting the Mandate.

The attorney representing the Indiana nurses, who were fired, states that his clients had the right to refuse their flu shots. He argues Title VII of the Civil Rights Act of 1964 prohibits religious discrimination against employees. The attorney is suggesting religion is legally broad under the First Amendment, so it can include any strongly held belief. According to a Chicago Tribune article, in 2009 New York mandated flu shots for all health workers, during the H1N1 outbreak. Unions fought the issue in court, and the state has since relaxed the rule.

Florida Health Care Professionals Worried About Jobs.

I’ve recently received calls from several local health care professionals working in different Florida hospitals, regarding refusing flu shots and other vaccinations. I’ve also read the news stories about Tampa General Hospital and Moffitt Cancer Center in Tampa requiring employees to receive the influenza vaccine. According to the news articles, the two Tampa health facilities require employees who refuse the flu shot to wear surgical masks.

However, the states and hospitals may not back down in this case. The issue may have to be decided by the courts. I promise to write more on this topic later.

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

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

Sound Off.

What do you think of mandated flu shots for health care workers? Is receiving a flu shot mandatory at your job? As a health care professional, do you think it is important to receive a flu shot? Is there enough medical evidence to justify firing health care professionals for not receiving the flu shot? Please leave any thoughtful comments below.

Sources:

Lupkin, Sydney. “Nurses Fire for Refusing Flu Shot.” ABC News. (January 3, 2013). From: http://abcnews.go.com/Health/indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967

Moyer, Christine. “More Physicians on Track to get Flu Shots.” American Medical News. (December 14, 2012). From: http://www.ama-assn.org/amednews/2012/12/10/hlsb1214.htm

Cheung-Larivee, Karen. “Health Unions Sue Over Mandated Flu Shots.” Fierce Healthcare. (December 10, 2012). From: http://www.fiercehealthcare.com/story/health-unions-sue-over-mandated-flu-shots/2012-12-10

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.

Nurses: Locate a Healthcare Providers Service Organization (HPSO) Insurance Defense Attorney in Florida Company Cases

Patricia's Photos 013By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are sometimes told by the health professionals we represent especially pharmacists, licensed mental health counselors (LMHCs), advanced registered nurse practitioners (ARNPs), massage therapists and physical therapists that after they received a complaint regarding their license from the Florida Department of Health (DOH) they had difficulty finding an experienced attorney in Florida who would accept their professional liability insurance.  In this case, I am speaking specifically about Healthcare Providers Service Organization (HPSO) Insurance.

Benefits of HPSO Insurance.

The professionals who are covered by HPSO Insurance have excellent insurance coverage.  HPSO Insurance provides professional liability coverage that protects in the event of a lawsuit or negligence claim.  But much more often the professional receives a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment or sexual impropriety, a complaint because of a breach of medical records confidentiality or Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action.

HPSO provides great coverage for these.  For example, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation of you at depositions.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your defense in a DOH or Agency for Health Care Administration (AHCA) notice of investigation or complaint.  HPSO currently reimburses up to $25,000 in legal fees and expenses for your legal representation in defense of a complaint or investigation regarding breach of medical confidentiality.

If you are a pharmacist, own a pharmacy, are a massage therapist, own an assisted living facility (ALF), are a mental health counselor or a social worker, or you are one of the many other types of health care professionals who HPSO insures, it should be fairly easy to find experienced health lawyers to represent you, especially in Florida.

Our firm and our attorneys, including George F. Indest III, Michael L. Smith, Joanne Kenna, Carole C. Schriefer, Lance O. Leider, Christopher E. Brown and Danielle M. Murray, routinely represent licensed health care professionals, interns and students in all types of administrative investigations and hearings and in defending lawsuits and other actions that have been filed.  We also represent health facilities in license defense, survey complaints and administrative hearings.  We represent them throughout Florida, from Pensacola, to Jacksonville, to Key West.  We also occasionally represent them in other states, as well.  We accept HPSO Insurance assignments.

Free Legal Advice: Get Insurance Immediately.

It is very important for every health professional to carry insurance that covers any investigation, complaint or administrative hearing that might be filed or opened against your license.  You may think that you are covered for this by your employer, but you are not.  If your employer contradicts this, ask for a statement in writing that your employer will pay for your legal defense for any such matter arising during your employment.

What typically happens, especially in the case of a hospital employee, nursing home employee, pharmacy employee or corporate employee, is that the employer is the one who terminates the employee and then files a complaint with the DOH.  The DOH then opens an investigation against the health professional.  The employer is not going to pay your legal defense costs if the employer has reported you.

You may very well be out of work, out of money and face an investigation and complaint that could terminate your professional license and career.  You should not take this chance.  Insurance such as HPSO Insurance is inexpensive and reliable.  Buy it while you can afford it. After the actions have occurred, it is too late.

Find an Experience Health Law Attorney in the Event of an Investigation.

Also, you should immediately contact an experienced health law attorney if you are telephoned or visited by any investigator, or if you receive a letter advising you that an investigation has been opened regarding your care.  Call immediately for advice before you speak with an investigator or provide any documents or statements of any kind.

You cannot and should not seek “legal advice” on what to do from the investigator, from a DOH employee, from your professional board or from any attorney representing any of them.  They are not your friends.  They are on the side against you. You should definitely not take any advice from them.

Do Not Skimp on Insurance Coverage.

If you have good insurance, it will pay for your legal expenses from the very beginning, so use it.  However, beware of cheap insurance policies from professional associations that do not provide any coverage for disciplinary complaints and licensure investigations.  Always check to be sure this is covered.  Get it in writing.  With some companies you have to pay an extra premium to obtain this coverage.  With some insurers, they do not offer it, and you have to purchase a completely separate policy covering just this.  It is worth it!  Do it!

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

Our firm regularly represents pharmacists, massage therapists, mental health counselors, registered nurses, assisted living facilities, home health agencies, nurse practitioners, lab technicians, occupational therapists, physical therapists, social workers, physician assistants, psychologists and other health professionals in many different legal matters.

Services we provide include representation before your professional board, in DOH investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

We routinely represent physicians, dentists, nurse practitioners, and others in defending against malpractice claims, civil lawsuits, administrative complaints, peer review actions, DOH investigations, Medicare audits, Medicaid audits, and other matters. In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company.  If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company.

We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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 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.

What Nurses Need to Know about Florida Law and HIV Testing

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.

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

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.

Two Recent Rulings Allow Certified Registered Nurse Anesthetists (CRNAs) to Administer Anesthesia Without the Supervision of a Physician

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

Recently, courts in both California and Colorado ruled that Certified Registered Nurse Anesthetists (CRNAs) are now allowed to independently administer anesthesia to patients without the supervision of a physician. In California, the decision came from the First District Court of Appeals on March 15, 2012. In Colorado, an appeals court allowed the same practice on July 19, 2012.

A recent article in American Medical News (AMN) summarizes these cases. To see the entire article, click here.

The Two Cases Come from a Decision Made by Governors to Opt Out of Requiring CRNAs to be Supervised by Physicians.

According to the AMN article, the California and Colorado cases both stem from a decision made by the sates’ governors to opt out of requiring CRNAs to be supervised by a physician. Ordinarily, in order for hospitals, ambulatory surgical centers, and critical access hospitals to receive Medicare reimbursement under Medicare when a CRNA administers anesthesia, federal regulations require that the CRNA must be supervised by a physician. However, states can opt out if governors consult with the appropriate medical boards and decide that an exemption is in the best interest of the citizens of the state.

The Colorado Medical Society and the Colorado Society of Anesthesiologists Sue.

The Colorado court case states that in 2010, the then-Colorado governor decided to opt out critical access hospitals and 14 rural hospitals in the state. The Colorado Medical Society and the Colorado Society of Anesthesiologists sued contending that the opt out was inconsistent with the state law. The plaintiffs requested the Colorado governor’s decision be blocked by the court.

In 2011, a Colorado district court upheld the exemption. The plaintiffs then appealed.

On July 19, 2012, the Colorado Court of Appeals agreed with the district court’s decision and ruled in favor of independent CRNAs.

Click here to read the entire Colorado Court of Appeals case.

Similar Case in California.

In California, in 2009, the state chose to opt out of requiring physician supervision of CRNAs in Medicare-participating hospitals. The California Medical Association and the California Society of Anesthesiologists sued to block the opt out. The trial court concluded that the opt out was consistent with the law and ruled in favor of independent CRNAs.

On March 15, 2012, the First District Court of Appeals agreed with a lower court’s decision to allow the exemption.

To read the full California Court of Appeals case, click here.

Doctors and CRNAs Disagree on Ruling.

According to the American Medical News article, the regional director of the Colorado Society of Anesthesiologists calls the ruling a safety issue for patients. He believes that by removing a physician’s oversight from the delivery process it diminishes patient care.

Click here to read an opinion article written by a Board Certified Anesthesiologist in Colorado agreeing that unsupervised CRNAs can put patients’ health at risk.

On the other hand, the president of the Colorado Association of Nurse Anesthetist praises the ruling stating, in the article, that research shows no differences in patient morbidity or mortality rates whether or not CRNAs are under a doctor’s supervision.

Click here to read the press release from the American Association of Nurse Anesthetists (AANA).

Liability Risks Associated with Being a CRNA.

The administration of anesthesia by a CRNA requires special training and certification. Oversight and availability of an anesthesiologist is required by most organizations. The major risks for CRNAs include the improper placement and maintenance of an airway, failure to recognize significant changes in a patient’s condition and the improper use of anesthetics.

To learn more on the liability risks associated with advanced nurses, read our Nursing Law Manual, by clicking here.

Contact Health Law Attorneys Experienced in Representing CRNAs.

The attorneys of The Health Law Firm represent Certified Registered Nurse Anesthetists (CRNA) in most legal matters, whether concerning licensure, investigations, allegations of impairment or substance abuse, clinical privileges, contracts or employment disputes.   Whether your legal problem involves negotiating a contract or litigating payment issues, we have the experience. We routinely represent nurse practitioners and other health providers in defending allegations of impairment, drug abuse and diversion, as well as in peer review, clinical privileges or certification by a professional association. Medicare payment issues, Medicaid payment issues and insurance payment issues are among those we routinely encounter.

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

Sources:

Gallegos, Alicia. “Court Rules Nurse Anesthetists Don’t Need Physician Supervision.” American Medical News. (August 6, 2012). From: http://www.ama-assn.org/amednews/2012/08/06/prsa0806.htm

Moss, DO, William. “Anesthesia best Left to Experts” Colorado Society of Anesthesiologists. (August 1, 2012). From: http://csa-online.org/pdfs/Anesthesia_best_left_to_experts.pdf

Shaffer, Scott. “Colorado Appellate Court Uphold Opt Out from Federal Anesthesia Rule.” American Association of Nurse Anesthetists. (July 19, 2012). From: http://www.aana.com/newsandjournal/News/Pages/071912-Colorado-Appellate-Court-Upholds-Opt-Out-from-Federal-Anesthesia-Rule.aspx

Colorado Medical Society v. John Hickenlooper and Colorado Association of Nurse Anesthetist, Colorado Nurse Association and Colorado Hospital Association, No. 11CA1005 COA (July 19, 2012),  available at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1005-PD.pdf.

California Society of Anesthesiologists v. California Association of Nurse Anesthetists, No. CPF-10-510191 San Francisco City & County Superior. Ct. (March 15, 2012), available at http://www.courts.ca.gov/opinions/archive/A131049.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.

Florida Registered Nurses Finalize Union Agreement with HCA

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

Registered nurses at ten HCA hospitals in Florida have reached a collective bargaining agreement with the hospital chain. After negotiating for over a year, National Nurses United–a union for registered nurses–announced that it finalized the agreement with HCA on May 7, 2012.

The agreement affects over 3,000 Florida registered nurses at HCA hospitals. It will be effective for three years.

According to National Nurses United, Florida HCA management has agreed to establish a committee of elected nurses at each hospital to make recommendations on improving patient care. The contract also protects nurses against forced overtime and provides for a new wage system based on experience.

Milestone for Florida Nurses.

This collective bargaining agreement is a milestone for Florida nurses. It provides some degree of security and assurances of fairness to nurses before they can be terminated. Internal grievance procedures will have to be complied with by the employing hospital which will no longer be able to arbitrarily terminate a nurse.

Unionization Means Written Contract for Nurses.

This also means that nurses employed by the hospital will now have a written contract and will have contractual rights. Most nurses work as “at will employees” without a contract. This allows them to be fired for any (non-discriminatory) reason or no reason at all. This will prevent that from happening from now on.

This also has an advantage even for those nurses who are not union members. The labor contract will apply to them, too, giving them contract rights, as well.

Union Representative.

Although the union believes that the RNs covered by the new agreement will greatly benefit from it, there are often problems that arise from union negotiations that may not be initially apparent.

For example, the nurse employee will have the right to have a union representative present at any disciplinary proceedings, interviews, or investigations by the hospital employer. A nurse may feel that having a union representative present will ensure that his or her legal interests are protected. However, this is not always the case. A union representative will generally not do anything to jeopardize the union’s relationship with the employer. Additionally, the union representative is not a lawyer and often will not be able to provide legal strategy, legal advice, or good defenses to the nurse.

Union reps should never be mistaken for legal counsel. They will likely have no legal background and are not a substitute for an attorney.

Nurses Unfairly Accused of Diverting Narcotics.

This firm has heard from a number of nurses employed by hospitals across the state and regularly represents them. Often we are contacted by nurses who state that they are unfairly and incorrectly accused of diverting narcotics from patients or pilfering them from Pyxis, Diebold or ther brands of automated pharmacy dispensing systems. Many of these have been terminated by their employers even though their drug tests came back negative or they passed a polygraph examination (lie detector test).

When nurses are unionized and have contractual rights, this helps to end unfair and arbitrary terminations. Such abuses by hospital employers cause nurses to decide to vote in favor of unionization.

Contact Health Law Attorneys Experienced with Nursing Issues Today.

The attorneys of The Health Law Firm provide legal representation to nurses, nurse practitioners, and CRNAs in investigations, contract negotiations, licensing issues and at Board of Nursing hearings.  They also advise nurses wrongfully accused of diverting drugs and those wrongfully terminated from employment.  Its attorneys represent nurses in DOH investigations, Board of Nursing cases and administrative hearings.

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

Sources Include:

Dymond, Richard. “Nurses Win First Bargaining Contract with HCA’s Blake, Doctor’s Hospital.” Bradenton Herald. (May 8, 2012). From
http://www.bradenton.com/2012/05/08/4029914/nurses-win-first-bargaining-contract.html

Peters Smith, Barbara. Registered Nurses Reach Labor Agreement with 10 Florida Hospitals.” Herald-Tribune. (May 7, 2012). From
http://health.heraldtribune.com/2012/05/07/registered-nurses-reach-labor-agreement-with-10-florida-hospitals/

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.