OIG Alert Warns of Improper Conduct Involving Home Health Agencies and Physicians

michellebedoyaheadshotBy Michelle L. Bedoya, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On June 22, 2016, the United States Department of Health and Human Services (HHS) Office of Inspector General (OIG) published a fraud alert regarding improper arrangements and conduct involving home health agencies (HHAs) and physicians. The alert comes as a result of recent investigations and studies, where it has been found that home health fraud in Medicare continues to warrant scrutiny and attention from the OIG, its law enforcement partners, and the Centers for Medicare & Medicaid Services (CMS).

According to the alert, in the past year, home health agencies, individual physicians, and home-visiting physician companies have faced criminal conviction and civil settlements for defrauding Medicare because they have:

1) made or accepted payments for patient referrals;
2) falsely certified patients as homebound; or
3) billed for medically unnecessary services or for services that were
not rendered.

Payments in Return for Referrals of Beneficiaries.

Home health agencies were alleged to have violated the Federal anti-kickback statute (AKS) by directly or indirectly paying physicians in return for referrals of Medicare beneficiaries to home health agencies.

In turn, physicians were alleged to have violated the AKS because they directly or indirectly, either solicited or received payments from home health agencies in exchange for referring Medicare beneficiaries to those home health agencies.

These payments, between home health agencies and physicians, were sometimes disguised as compensation agreements for services provided. For example, a Medical Director agreement, which purportedly based compensation of a physician for services rendered as Medical Director of a home health agency, would act as a front of validity. According to the OIG, these agreements were actually mere guises for illegal payments for referrals of Medicare beneficiaries.

A Valid Compensation Agreement.

A valid compensation agreement for services, between home health agencies and physicians, must comprise of arrangements and payments that are commercially reasonable and at fair market value.

According to the OIG, payments that are made or received to induce referrals, raise the following concerns:

1) corruption of medical judgement;
2) patient steering;
3) overutilization;
4) unfair competition; and
5) increased costs to Federal health care programs.

Other Federal Law Violations.

According to the alert, the government also alleged that home health agencies, individual physicians, and home-visiting physician companies violated other federal laws such as the health care fraud statute and the statute that prohibits false statements relating to health care matters.

Conclusion.

Entities or individuals that are engaged in fraudulent activities involving federal health care programs, such as Medicare and Medicaid, are potentially subject to criminal, civil, and administrative sanctions.

Home health agencies and physicians should rely on experienced legal counsel for guidance in proper compensation agreements to ensure compliance with federal laws.

Comments?

What do you think of the OIG’s alert? Leave your comments below.

Contact an Experienced Health Care Attorney.

The attorneys of The Health Law Firm represent health care providers throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions.

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

Source:

“Alert: Improper Arrangements and Conduct Involving Home Health Agencies and Physicians.” U.S. Department of Health and Human Services: Office of Inspector General, 2016.

About the Authors: Michelle L. Bedoya, J.D., is an attorney with The Health Law Firm and a long-time consultant to home health agencies. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Home health agency (HHA) lawyer, Florida health fraud defense attorney, health law defense lawyer, health professional attorney, nursing board defense attorney, home health agency defense lawyer, Medicare fraud defense attorney, Office of the Inspector General (OIG) investigation defense lawyer, OIG exclusion attorney, Medicaid fraud defense attorney, Medicare Fraud Strike Force attorney, home health agency (HHA) defense attorney, Zone Program Integrity Contractor (ZPIC) audit defense attorney lawyer, review of The Health Law Firm attorneys, The Health Law Firm, The Health Law Firm reviews, Nursing Service Organization (NSO) insurance defense attorney lawyer, Healthcare Providers Service Organization (HPSO) insurance defense attorney lawyer, Recovery Audit Contractor (RAC) audit defense attorney lawyer, Florida health attorney, Medicare fraud defense lawyer, Health care fraud statute, Medical Director agreements

“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 © 1996-2016 The Health Law Firm. All rights reserved.

Big Surprise! California Doctors And Hospitals Can’t Agree Over Role Of Nurse-Midwives

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

On August 8, 2016, a California bill was announced that would allow certified nurse-midwives (CNMs) to practice in hospitals independently. It is apparently upsetting many of teh state’s physicians. The California Hospital Association and the California Medical Association (which represents doctors), agree that nurse-midwives have the training and qualifications to practice without physician supervision. But they differ greatly over whether hospitals should be able to employ midwives directly — a dispute the certified nurse-midwives fear could derail the proposed law.

The Supervision of Nurse-Midwives.

The proposed bill would override an existing law that requires certified nurse-midwives to practice only under the supervision of licenced medical doctors. California is one of only six states that requires full supervision. Several other states mandate other looser forms of supervision or monitoring by physicians, such as through collaboration agreements or preceptor agreements, especially for such issues as prescribing medications.

The American College of Nurse-Midwives has been attempting to chisel away for decades at state laws that require physician supervision, and it has finally passed the tipping point nationally, said Jesse Bushman, director of federal government affairs for the organization. Nurse-midwives aren’t seeking permission to go off and do whatever they want without consulting anyone, Bushman said. “They’re just asking to be able to do what they are trained to do.”

Additionally, in the states where nurse-midwives can practice independently, there is much more access to care, he said, citing a recent report published by the George Washington University’s Jacobs Institute of Women’s Health.
To read the report in full, click here.

Corporate Practice of Medicine.

Now, the debate between the doctors and the hospitals centers on the state’s prohibition of what’s known as the “corporate practice of medicine.” The state of California does not allow corporations, including hospitals, to hire physicians directly, though there are several exceptions. The intent of the ban is to avoid undue corporate influence on doctors’ medical judgment and patient care. Under the current law, hospitals can hire nurse-midwives, though many don’t. However, there is no such bar on hiring nurses directly

According to Dr. Jaun Thomas, a lobbyist with the medical association, patients should have the same consumer protections whether they see a nurse-midwife or a doctor. “It should be a level playing field,” he said. “We believe very strongly that the corporate practice of medicine bar language provides an important layer of patient protection.”

Assemblywoman Burke’s office is continuing to talk to representatives of both the physicians and the hospitals to try and find a solution to the issue.

“For both of them, it is an issue they don’t want to compromise on,” Burke said. “The bill became a pawn in the fight between the hospitals and the physicians. It still is.”

To learn more, click here to read one of my prior blogs.

Turf Battle or Antitrust Violation, or Both?

This appears to me to be just another one of those turf battles that we have seen in the practice of medicine through recent history. Whether its podiatrists trying to get their foot in the door and orthopedic surgeons trying to shut them out, or dermatologists being criticized by plastic surgeons for doing to many “cosmetic procedures,” or chiropractors being ostracized by medical doctors, or allopathic doctors discriminating against osteopathic physicians, this seems to be just another turf battle. After all, midwives have been delivering babies before there were hospitals and before Hippocrates was born (probably delivered by a midwife).

I would think the recent flurry of antitrust lawsuits against healthcare systems and against professional licensure boards over attempted monopolization would give most doctors cause to think twice before supporting such efforts to shut out nurse-midwives. This seems like a good time for the nurse midwives to be thinking about this type of litigation.

After all, sometimes you just have to wake up and smell the coffee and give up on hoping for a return to the ways of the Twentieth Century. I know it’s been hard for me!
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.

Source:

Gorman, Anna. “California Doctors And Hospitals Tussle Over Role Of Nurse-Midwives.” Kaiser Health News. (August 8, 2016). Web.

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

KeyWords: Roles of nurse-midwives practicing in hospitals, supervision of nurse-midwives, nurse -midwife attorney, midwife legal defense counsel, corporate practice of medicine attorney, turf battles in medicine, attorney for nurses, nursing law attorney, board of nursing defense lawyer, nurse-midwife training and qualifications, supervision of licensed medical doctors, legal representation for nurse-midwives, nurse-midwives defense attorney, review of The Health Law Firm attorneys, The Health Law Firm, The Health Law Firm reviews, Nursing Service Organization (NSO) insurance defense attorney, hospital clinical privileges attorney, hospital credentials hearing lawyer, ancillary medical staff clinical privileges defense attorney

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 © 2016 The Health Law Firm. All rights reserved

Texas Jury Finds Doctor Responsible for Harassment of Nurse Despite Settlement Being Reached

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

On August 9, 2016, a licensed vocational nurse in Texas who alleged she was bullied and sexually harassed by a doctor at work was vindicated when a $440,000 settlement was reached between the parties. Patricia Hahn alleged the harassment she received from Dr. Scott Davidson started soon after beginning work at North DFW Urology Associates (North DFW) in 2007.

The Alleged Harassment.

Hahn reportedly testified that on three separate occasions, Dr. Davidson screamed at her with raised arms and clenched fists, “Just shut up. Just shut up, I’m sick of you,” according to the court documents. She reported the behavior to the human resources department at her group and shortly afterwards was allegedly called by Dr. Davidson for an after-hours meeting in his office. Then, according to the nurse, he proceeded to give her a “demonstration” of what screaming was, she testified, attempting to prove that he had not screamed at her previously.

After she made a report about the sexual harassment and hostile work environment she claims she suffered at the hands of Dr. Davidson throughout her three years at North DFW, Hahn was eventually fired.

The Settlement.

Even if she had not settled, Hahn would have received damages related to the alleged mistreatment she suffered. A Dallas County, Texas, jury returned a $1.08 million verdict in her favor on claims of sexual harassment and intentional infliction of emotional distress, just minutes after the settlement was reached. Oh well, “A bird in the hand . . . .” The up side of this is that now the case is completely resolved and there won’t be any risk of appeals dragging out the final result for years.

Hahn’s attorney noted that the verdict is one of few in the country that’s been handed down by a jury relating to “bullying” claims.

Click here to read the plaintiff’s original petition.

To read about a similar case of harassment in the workplace and the repercussions, click here to read one of my prior blogs.

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.

Source:

Casady, Michelle. “Dallas Jury Finds Clinic, Doc Responsible For Harassment.” Law360. (August 9, 2016). Web.

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

KeyWords: Bullying and sexual harassment in the workplace attorneys, intentional infliction of emotional distress lawyers, settlement for harassment in the workplace, legal representation for physicians accused of wrongdoing, reviews on The Health Law Firm lawyers, legal counsel for healthcare professionals, legal representation for nurses, health law litigation attorneys, health law defense counsel, health professionals legal counsel, The Health Law Firm reviews, state court litigation attorneys, federal court litigation attorneys, legal defense of physicians in civil litigation

“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 © 2016 The Health Law Firm. All rights reserved.

Holding off a Professional License Revocation or Suspension During Appeal

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

If you are a physician, dentist, nurse, psychologist, pharmacist, physician assistant, nurse practitioner, massage therapist or other licensed health professional whose license has been recently revoked or suspended, there may still be hope. As a matter of course, you would be required to immediately stop practicing or risk being prosecuted for unlicensed practice, which is 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 becomes effective immediately, whether there was a mistake, the action taken was erroneous or because of other reasons which may support an appeal. This cuts off the health professional’s sole source of income, which may also prevent you from having enough to pay for an appeal. If you have a thriving practice, this will usually destroy any value which your business has. Without income, paying your bills will be a challenge, much less paying the legal expenses to appeal or further fight the action that was taken.

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 a remedy 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 decision 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), in the case of a health care professional. The same applies to other professional licenses issued by other state agencies in Florida, as well.

Supersedeas relief is authorized in two separate locations 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.

This relief is not automatic, however. You must request it. Additionally, both legal authorities specifically prevent supersedeas from being granted if the licensee poses a probable threat to the health, safety or welfare of the state. In most cases, this is not applicable. Regardless, it is the burden of the agency which has the 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 and the appellate court will make an expedited decision on this. 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.

Following are the steps which an experienced health lawyer or appellate lawyer would take to obtain such 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, local court 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.

We do not recommend that you attempt to represent yourself on such matters. Appeals are complex and require an intimate knowledge of the law and appellate procedures. You should engage the services of an experienced health lawyer at the earliest possible opportunity.

Other Considerations.

It is important to note that this form of relief will not make the underlying disciplinary 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. Additionally, appeals are decided based on errors made in applying the law in the case, not based on a dispute about the facts of the case. 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. This is another reason that you should have an experienced health law attorney represent you and have a full, formal administrative hearing on the case. Given the fact that most appeals will not be successful (the appellate courts err to the side of assuming the lower court or agency made the correct decision), you need to aggressively litigate and defend the action against you to try to win at the hearing or agency level. To prevail on an appeal, the attorney must have a detailed knowledge of the correct, relevant court cases and must be able to argue these in the proper form in legal briefs.

An appeal is all about the laws that apply to your factual situation and the court cases that have interpreted those laws. Unless the agency made a legal error and violated the law, you won’t win. 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: 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.

Key Words: revocation of medical license, suspension of medical license, supersedeas relief, revocation of dental license, revocation of nursing license, revocation of pharmacist license, revocation of health facility license, adverse agency action, health professional defense attorney, professional license defense lawyer, health care appellate attorney, appeals from adverse agency action, appeal from professional license discipline, appeal from final order, abating final order, suspending application of final order, Department of Health (DOH) defense attorney, license suspension attorney, legal representation on license revocation, license revocation defense counsel, health care appeals defense attorney

“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 © 2016 The Health Law Firm. All rights reserved.

Doctor Dubbed “King Of Nursing Homes” Downplayed Patient Harm From Illegal Kickback Scheme

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On August 8, 2016, federal prosecutors blasted Dr. Venkateswara Kuchipudi, a Chicago physician nicknamed the “King of Nursing Homes,” convicted of sending nursing home patients to a hospital he believed was subpar allegedly in exchange for free staff. According to prosecutors, the doctor attempted to “whitewash his actions” when asking for a lenient sentence and caused actual harm to patients to satisfy his “callous greed” (words prosecutors reportedly used).

Prosecutors argued that U.S. District Judge Matthew Canaille should give Dr. Venkateswara Kuchipudi a sentence that reflects how vulnerable his victims were and how much Dr. Kuchipudi profited from billing insurers for the work he didn’t pay his staff to do. In March 2016, Dr. Kuchipudi was convicted of a charge related to the illegal kickback scheme. Click here to read more.

The “King of Nursing Homes”

Dr. Kuchipudi earned the nickname “King of Nursing Homes,” from the hundreds of nursing home patients he treated and allegedly from accepting kickbacks for referring Medicare patients to Sacred Heart Hospital (in the Chicago area) in exchange for staff in 2016. The victims of Kuchipudi’s kickback scheme were “elderly and physically and/or mentally impaired nursing home-bound patients,” whose vulnerability gave Kuchipudi “nearly limitless discretion” over where they were treated, the government said in a sentencing memorandum. Dr. Kuchipudi allegedly chose a hospital he constantly criticized as “substandard” and that was located far from many of his patients, prosecutors said. Click here to read the sentencing memorandum in full.

Jeopardizing Quality of Care.

The government pointed out the victims at were brought to Sacred Heart Hospital on Dr. Kuchipudi’s orders, despite it not being the closest hospital, when they were suffering conditions that could have been life threatening, including heart attack, embolism and stroke. Other patients were forced to undergo unnecessary testing, stay at the hospital longer than necessary or, in one case, stay nine days to wait for surgery because the hospital lacked the proper equipment.

“Kuchipudi should never have sent an elderly patient with a broken hip to Sacred Heart if Sacred Heart did not have the equipment, such as a surgical table, already in place to provide necessary patient care,” the government said. “The table should wait for the patient. The patient should not have to wait nine days for the table.”

Additionally, Dr. Kuchipudi refused to work weekends or take calls at night, but wouldn’t let other doctors see his patients, so that he himself could bill for them, the memorandum states. Eventually Sacred Heart had to hire another doctor to take on Dr. Kuchipudi’s patients, for which he would then bill (according to prosecutors). This, by itself, would probably violate the Anti-Kickback Statute. According to prosecutors, when he was at the hospital, he would see his patients for 10 to 15 minutes total and make no notes, leaving the work to physician assistants and nurses.

He would often bill Medicare for the work done by these other physician assistants, nurses and the doctor the hospital hired for his patients, as if he did the work himself, the government stated.

In addition to having Sacred Heart pay for Dr. Kuchipudi’s staff, the physician received “well over $750,000” from insurers for their labor, the government said. As the kickback is more than $550,000, the offense level under the sentencing guidelines should increase, according to prosecutors.

Kuchipudi’s sentencing memorandum showed no signs of his acknowledging or feeling remorse for his crimes, the government said. Click here to read more.

To read a prior blog I wrote on illegal kickback schemes, click here.

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

The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Kass, Dani. “’King Of Nursing Homes’ Downplayed Patient Harm, Feds Say.” Law360. (August, 8, 2016). Web.

Eltagouri, Mawra. “Doctor known as ‘king of nursing homes’ convicted in kickback scheme.” The Chicago Tribune. (March 16, 2016). Web.

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

KeyWords: King of Nursing Homes, Medicare fraud scheme, Medicare audit, submitting false claims, Department of Justice (DOJ), health care fraud scheme, illegal kickback scheme, Medicare beneficiaries, services not rendered, unnecessary tests and procedures, improper billing, nursing home health facilities, health care kickbacks, Florida health care lawyer, The Health Law Firm
“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 © 2016 The Health Law Firm. All rights reserved.

Health Care Providers: PLEASE Talk to an Attorney Before You Talk to an Investigator!

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

At The Health Law firm, we often receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. It is imperative to know that in Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

If you are being investigated, you will NOT be better off making a statement. You will NOT be better off explaining your side of the story. The investigator is NOT your friend. The investigator is NOT on your side.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights. To learn more about your Miranda rights, click here to read one of our prior blogs.

Know Your Rights.

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

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

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

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

You Cannot Talk Your Way Out Of It.

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

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

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

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

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

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.
Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

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

Keep Silent.

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

Far too often the health professional only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused. Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals in Criminal Matters and Professional Licensing Matters.

If you have been arrested, it is strongly recommended that you retain an experienced attorney who can advise you on the criminal proceeding, your rights and how it may affect you. Most important to a physician, dentist, nurse, pharmacist or other health professional are what consequences may follow this. Consequences may include loss or suspension of hospital privileges, loss or suspension of your professional license, exclusion from the Medicare Program, termination from the state Medicaid Program, termination from health care insurance panels and other severe consequences.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in criminal defense matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

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.

KeyWords: Right to remain silent, Miranda rights, criminal law defense attorney, health care investigations, investigations against health care professionals, The Department of Health (DOH) investigations, Medical Quality Assurance Investigators, Drug Enforcement Administration (DEA) investigations, medical malpractice investigators, disciplinary actions against health care professionals, health care license defense attorney, physician criminal charges, health attorney, criminal trial, criminal case defense lawyer, Fifth Amendment, plead the Fifth, administrative sanctions, administrative law judges, administrative hearing, administrative trial, administrative proceedings, The Health Law Firm

“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 © 2016 The Health Law Firm. All rights reserved.

Too Old For Sex: Are Nursing Home Residents Able to Consent to Sex?

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Sexual relationships in long-term care facilities or nursing homes are not uncommon these days. But the long-term care industry is still grappling with the issue and the question of whether some residents are able to give consent. In some cases, these aging lovers have raised logistical and legal issues for their families, caretakers and the institutions where they live. Complicating the issues are state regulations which punish the health facility for allowing “sexual abuse” of one resident by another and facility policies which prohibit sexual contact between residents.

More Freedom For Residents.

Many nursing homes have already loosened daily regimens for patients, giving them more say in when and what they eat and for some, the next step seems to be the option of having sex. “Sex falls right smack dab in the middle of who we are as people,” said Marguerite McLaughlin, senior director of quality improvement for the American Health Care Association, the nation’s largest trade association for nursing homes.

Some nursing homes such as The Hebrew Home have organized happy hours, senior proms and even a dating service called G-Date.

More Freedom, More Concerns.

The idea of more freedom and the option for sex among nursing home residents, also brings more concern. Are some residents able to give consent for sex, especially those with dementia? This topic already came up in court in 2014. Henry Rayhons’ wife lived in a nursing home. The staff there told Rayhons that because of her dementia, his wife was no longer capable of consenting to sex. He had been charged with sexual assault for allegedly having sex with her after that. He was later found not guilty. Click here to read more on this case.

More Guidelines?

Many nursing homes do not have any guidelines in place for cases such as this one. The Hebrew Home came up with a sexual expression policy back in 1995 after a nurse walked in on two residents having sex. Daniel Reingold, the president and chief executive, stated that the policy is not only intended to encourage intimacy among residents who want it, but also protects against unwanted sexual advances and sets guidelines for staff members. Reingold believes that patients with alzheimers and dementia are fully capable of giving consent and the policy reflects that stating that such patients can give consent for sexual relationships under certain circumstances.

The issue of sexual relationships among nursing home residents is not going to go away and will most likely remain controversial. More and more facilities and care takers are adopting adequate policies for residents and encouraging intimacy and companionship. As Eileen Dunnion, a registered nurse said, “You get old, you get cold!”
Contact Health Law Attorneys Experienced in Representing Nursing Homes and Assisted Living Facilities.

The Health Law Firm and its attorneys represent skilled nursing facilities (SNFs), assisted living facilities (ALFs), home health agencies (HHAs), and their employees in a number of different matters including license defense, representation in civil litigation, representation in administrative hearings, contract preparation and litigation, defense of malpractice claims, licensing and regulatory matters, civil monetary penalty actions, defense of false claims act cases, answering subpoenas and civil investigative demands (CIDs) 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.

Sources:

Hu, Winnie. “Too Old For Sex? Not At This Nursing Home.” The New York Times. (July 12, 2016). Web.

Jaffe, Ina. “Can a Person With Dementia Consent to Sex?” NPR. (April 11, 2015). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
KeyWords: Sexual relationships in long-term health care facilities, nursing home residents consent to sex, can dementia patients consent to sex, too old for sex, policies and guidelines in nursing homes, sexual expression policy, American Health Care Association, legal representation for home health facilities, nursing home defense attorney, legal representation for nursing homes and home health agencies, health care defense lawyer, The Health Law Firm

“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 © 2016 The Health Law firm. All rights reserved.

New OIG Guidance Publishes on Permissive Exclusions from Federal Health Care Program Participation May Interest Nurses

Miles Indest HeadshotBy Miles Indest, J.D./M.B.A candidate at Tulane University: Law Clerk, The Health Law Firm

On April 20, 2016, the U.S. Department of Health and Human Services Office of Inspector General (OIG) released updated non-binding criteria that disclosed when a company or individual can be barred from participating in Medicare, Medicaid, and other federal health care programs.

The OIG has permissive authority to exclude a person or company from participation in federal health care programs for engaging in certain prohibited conduct, such as false claims or kickbacks. The OIG has consistently asserted that there is a presumption in favor of exclusion. The new guidance updates the OIG’s position by stating that its presumption in favor of exclusion is rebuttable in certain situations. Importantly, the OIG guidance outlines those situations and the risk factors that trigger an exercise of its permissive authority.

Four Factors May Affect OIG’s Decision to Exclude an Individual or Entity.

In its release, the OIG outlined four non-binding factors that signal a compliance risk and can affect its decision to pursue an exclusion: (1) the nature and circumstances of the prohibited conduct; (2) the conduct during the Government’s investigation; (3) any significant ameliorative efforts; and (4) the history of compliance.

First, the OIG will evaluate the nature and circumstances of the bad actor’s conduct. For instance, conduct that causes physical, mental, or financial harm to others increases compliance risk, thereby increasing the likelihood that the OIG will pursue an exclusion. Similar to the Department of Justice’s heightened focus on individual accountability, the OIG stressed that it will scrutinize an individual’s role in planning or leading unlawful conduct, which increases compliance risk.

Second, the OIG will assess the bad actor’s conduct during the Government’s investigation. If that person obstructed or impeded the investigation of the unlawful conduct, then the OIG will be more likely to pursue an exclusion. Notably, the OIG stated that a prompt response to a subpoena is “expected” and will not favorably affect the risk assessment.

Third, the OIG will weigh the bad actor’s ameliorative or remedial steps taken after the prohibited conduct occurred. For example, an entity that takes disciplinary action against individuals responsible or the conduct will lower its compliance risk. Similarly, individuals that receive new training or retain a mentor to improve their health care practice will face a lower risk of exclusion.

Finally, the OIG will focus on the bad actor’s history of compliance with the OIG. Importantly, the existence of a compliance program will not affect the risk assessment— likely another “expected” requirement of health care organizations. In contrast, the absence of a compliance program will increase compliance risk and the likelihood that the OIG will pursue an exclusion.

The OIG update ultimately reflects the government’s increased expectations of compliance programs and heightened scrutiny of individual wrongdoing. As federal agencies continue to prioritize the prosecution of fraud and abuse, health care organizations and practitioners would be wise to proactively address these concerns internally.

Contact Health Law Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program and Assisting in Reinstatement Applications.

The attorneys of The Health Law Firm have experience in dealing with the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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: Miles Indest, J.D./M.B.A. candidate, will graduate in May 2016 from Tulane University Law School and the Freeman School of Business. He has served three years as a member of Tulane Law Review, and currently serves as the Writing Skills Chair of Tulane Moot Court.

Sources:

“Criteria for Implementing Section 1128(b)(7) Exclusion Authority.” U.S. Department of Health and Human Services Office of Inspector General. (2016). Web.

Dani Kass. “HHS Watchdog Lays Out New Grounds For Exclusion List.” Law360. (2016). Web.

KeyWords: Health law, Office of Inspector General, exclusion list, defense lawyer, exclusion, OIG, OIG exclusion list, Florida defense attorney, reinstatement, application for reinstatement, OIG hearing,Medicare exclusion, Medicare reinstatement, Removal from List of Excluded Individuals and Entities, LEIE, Florida defense lawyer, defense attorney, The Health Law Firm

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 © 2016 The Health Law Firm. All rights reserved.

Increased Florida ARNP Prescriptive Authority to Include Controlled Substances

00034_RT8By Joanne Kenna, R.N., J.D., The Health Law Firm
Under new law passed just this month, Advanced Registered Nurse Practitioners (ARNPs) in Florida will be able to prescribe controlled substances beginning January 1, 2017. This increased prescriptive power will be permitted under the supervision and protocol requirements that already exist for ARNPs, and will require that the ARNPs register as controlled substance prescribers (i.e., hold a valid federal controlled substance registry number). ARNPs who are controlled substance prescribers also must indicate this on their practitioner profiles.

There will be some restrictions, limitations and requirements:

• Only ARNPs who have graduated from a program leading to a master’s or doctoral degree in a nursing clinical specialty area with training in specialized practitioner skills will be eligible to prescribe controlled substances.

• ARNPs will only be allowed to issue prescriptions for Schedule II controlled substances for a period limited to a 7-day supply. However, psychiatric ARNPs will not be limited to this 7-day supply limitation when prescribing Schedule II psychiatric drugs.

• A joint committee, composed of three (3) ARNP members, three (3) physician (any combination of M.D. or D.O.) members, and a doctor of pharmacy member, will establish a formulary of controlled substances that an ARNP will not be allowed to prescribe, or will be allowed to prescribe only for specific uses, or in limited quantity, or only if the ARNP has certain specialty certification. The initial formulary recommended by the committee is to be adopted by the Board of Nursing by no later than October 31, 2016.

• The legislature has designated that the formulary must restrict the prescribing of psychiatric mental health controlled substances for children younger than 18 years of age to ARNPs who also are psychiatric nurses (i.e., a master’s or doctoral degree in psychiatric nursing and two (2) years of post-master’s degree clinical experience under the supervision of a physician).

• ARNPs who prescribe controlled substances will be required to complete three (3) hours of continuing education in the safe and effective prescribing of controlled drug prescribing as part of their biennial nursing licensure continuing education requirement.

• ARNPs will not be permitted to prescribe controlled substances in pain management clinics.

Also, ARNPs will be held accountable and subject to disciplinary action by the Board of Nursing if they fail to meet the generally accepted standards of practice for the prescribing of controlled substances and document the requisite medical record information to demonstrate the standards have been met. This would include, but not be restricted to, the necessity of a medical history and physical examination; sufficient justification for the use of a controlled substance; discussion with the patient, surrogate or guardian of the risks benefits of the controlled substance use, including the risks of abuse, addiction and physical dependence; and discussion of the proper administration of the controlled substance.

In addition to ARNPs, the legislature has similarly increased the prescriptive authority for physician assistants (PAs).

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: Joanne Kenna is a nurse-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.

KeyWords: Ordering of controlled substances, Prescribing controlled substances, Florida increased prescriptive authority, Florida ARNPs, CRNAs and PAs, HB 1241 Ordering, Florida Association of Nurse Anesthetists (FANA), American Association of Nurse Anesthetists (AANA), Florida Board of Nursing, Florida legislation, legal counsel for Nurses, nursing defense lawyer, health care attorney, health law defense attorney, historic legislation, health care law, nurse attorney, nurse lawyer, nurse representation, The Health Law Firm
“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 © 2016 The Health Law Firm. All rights reserved.

Amendment to Florida Law, HB-1241, Expands Authority of ARNPs and PAs to Order Controlled Substances

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 11, 2016, a number of health care-related bills made their way through the Florida Legislature, including a bill that will amend the existing laws applicable to Florida Advanced Registered Nurse Practitioners (ARNPs) and Physician Assistants (PAs). The Florida Legislature passed a measure that expanded existing Florida law on the ordering of controlled prescriptions by ARNPs and PAs.

HB 1241-Ordering.

HB 1241 makes it clear that ARNPs and PAs can order medications, including controlled substances for administration to patients in hospitals, ambulatory surgery centers and nursing homes. Medical Associations, such as Florida Association of Nurse Anesthetists (FANA), have long been fighting for this measure and quickly supported the legislation.

To view HB 1241 and the amendments, click here.

To learn more on the regulations on ARNPs and PAs scope of practice, click here to read one of my prior blogs.

This bill will now be forwarded to the governor, Rick Scott, for signature. It is not a law until it is signed by the governor, who may still decide to veto it.

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 visit our website at www.TheHealthLawFirm.com.

Sources:

Ammann, Phil. “Health Care Bills Advance in Legislature.” Florida Politics. (March 12, 2016). Web.

“Historic Legislation Passes-Controlled Substance Prescriptive Authority For All Florida ARNPs Including CRNAs.” FANA. (March 11, 2016). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

Keywords: Florida Legislature, ordering of controlled substances, Florida ARNPs , CRNAs and PAs, HB 1241Ordering, Florida Association of Nurse Anesthetists (FANA), American Association of Nurse Anesthetists (AANA), legal counsel for Nurses, nursing defense lawyer, health care attorney, health law defense attorney, historic legislation, health care law, nurse attorney, nurse lawyer, nurse representation, The Health Law Firm

“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 © 2016 The Health Law Firm. All rights reserved.