Crack Down on Unlicensed Practice of Nursing by Florida Department of Health

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

The Florida Department of Health (DOH) recently made a presentation regarding its increased investigation and prosecution of the unlicensed practice of nursing and other health professions. More resources and more investigators are being assigned to this duty.

The Department of Health has more than doubled the investigators in the Unlicensed Activity Unit from seven investigators to nineteen recently. This dramatic increase in resources and staff has resulted in the investigation of more complaints than ever regarding unlicensed practice of nursing.


Weapon of Choice in This Battle: Trust Funds.

Florida has a dedicated trust fund to combat unlicensed nursing and medical activity. Each nurse or other licensed health professional pays a $5.00 fee at initial licensure and each licensure renewal. These funds are deposited into Florida’s Medical Quality Assurance (MQA) Trust Fund. Each board is then consulted regarding enforcement methods and strategies to increase awareness about unlicensed activity. The Board of Nursing is routinely consulted by MQA on this issue.


Public Service Announcements.

The DOH has produced several short videos to inform the public of unlicensed activity. These public service announcement videos are currently being run as movie previews in theaters throughout South Florida. South Florida, as the most densely populated region in the state, higher rates of unlicensed activity than other parts of Florida.


Tips to Avoid Unlicensed Practice of Nursing Charges.

Here are some tips you can use to avoid charges of unlicensed practice of nursing or of aiding and abetting the unlicensed practice of nursing:

1. If you are not licensed as a nurse in the state of Florida and you are working in Florida, do not call yourself a nurse. This by itself violates the law.

2. It does not matter if you are licensed as a nurse in another state or another country. If you are not licensed in Florida, you may not legally refer to yourself as a nurse here.

3. Wear a name tag that identifies you as “Medical Assistant,” “Doctor’s Assistant,” “Phlebotomist,” “Clinic Staff,” or title other than a nurse if you are not a licensed nurse in Florida.

4. If a patient or your own staff incorrectly refers to you as a “nurse,” correct them and advise them that you are not licensed in the state of Florida or that you are not a nurse, but a medical assistant.

5. If you are a doctor, clinic administrator, or office manager, never refer to a medical assistant, certified nursing assistant (CNA) or other unlicensed person as a “nurse” or “the nurse.”

6. Be sure none of your business cards, resume, letterhead or correspondence refers to you as a nurse, R.N., or L.P.N., unless you are actually licensed in the state.

We have been required to provide legal advice and representation to many different individuals because of situations like those above.


Word to the Wise.

The DOH’s Bureau of Enforcement is cracking down on unlicensed activity. It is highly likely that if you are practicing a health profession without a license, any complaint about you will be investigated. Practicing a health care profession without a license is a criminal offense. Penalties include arrest by law enforcement, fines, and the issuance of a cease and desist order.

To view the DOH Unlicensed Activity Program website, click here.


Comments?

Do you think the that merely referring to a person as a “nurse” should be grounds to prosecute him or her? How about referring to a person as a “doctor” or “doc?” If so, “what’s up, doc?” Please leave any thoughtful comments below.


Contact Experienced Health Law Attorneys
.

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

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


About the Author:
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 © 1999-2015 The Health Law Firm. All rights reserved.
George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law
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Join Us for Florida Laws and the Nurse: New Licensure Requirement

Join Joanne Kenna nurse attorney with The Health Law Firm and the Greater Orlando Chapter of the American Association of Legal Nurse Consultants for:

FLORIDA LAWS AND THE NURSE – NEW LICENSURE REQUIREMENT:  Keep Your Patients Safe and Protect Your Nursing License

PROGRAM OBJECTIVES

The purpose of this is course is to provide nurses with knowledge of the Florida Laws and Rules that govern the practice of nursing in Florida, while meeting the 2015 requirement for Florida nurse licensure and renewal; and to provide valuable information regarding the structure and purpose of the Florida Board of Nursing Disciplinary Process and how to protect your nursing license by providing excellence in nursing care.

Upon completion of this course, you will be able to:

  • Describe the purpose and provisions of the Health Professions and Occupations Statue, the Florida Nurse Practice Act and Florida Health Professions Regulations;
  • Describe nursing standards of practice and identify deviations in standards;
  • List the steps in the Florida Nursing Disciplinary Process;
  • List specific sources of nursing practice that have high potential for putting a nursing license at risk of discipline.
  • Describe resources and procedures to protect your nursing license and respond to disciplinary action by the Florida Board of Nursing.

Beginning with the biennium ending in 2015, each Florida Nursing licensee must complete a two hour course on the laws and rules that govern the practice of nursing in Florida.  This program is approved by the Board of Nursing to meet the requirement.

SPEAKERS FOR THIS PROGRAM ARE:

ATTORNEY JOANNE KENNA, RN, JD is an attorney, whose practice encompasses most aspects of health law and nursing law, including the representation of health care providers in professional licensing and credentialing matters, professional board representation, administrative hearings, contracts, licensure issues, corporate matters, transactional matters and litigation.  Ms. Kenna received her juris doctorate degree from Stetson University College of Law.  She has an extensive legal background including medical malpractice defense and nursing home defense.  Prior to law school, Ms. Kenna’s nursing career included at the University of Chicago Hospitals and Clinics included being the head nurse of the cardiac critical care units, a cardiac nursing instructor and cardiac nursing consultant.  She brings a vast amount of experience and expertise to her role in health law.

JUDY A. YOUNG, RN, MSN, MHL is a nurse with over 38 years experience, 20 of which were served in the US Air Force.  Judy is the owner of Florida Legal Nurse Experts, LLC, and works as an independent Legal Nurse Consultant.  Judy’s LNC experience includes defense of mass torts / product liability; expert witness for both plaintiff and defense; and behind the scenes LNC roles for both plaintiff and defense firms.  She currently does medical malpractice defense work.  She also remains clinically active in critical care.  In addition to decades of critical care experience, Judy has been a nursing school director and instructor, and has experience in nursing administration and flight nursing.  She has a master’s degree in nursing from University of Oklahoma, and a master’s degree in health law, from the Sheppard Broad Law Center, Nova Southeastern University, Ft. Lauderdale, FL.

WHEN: October 28, 2014 – Social (light food) & Networking – 5:30 – 5:45 PM; Chapter Update Meeting 5:45 – 6:00 PM; and Education Program 6:00 – 8:00 PM.

CONTINUING EDUCATION CREDITS: 2.0 contact hours, as part of the total hours of continuing education required for initial licensure and biennial renewal, FL Administrative Code 64B9-5.011.  Approved by The Greater Orlando Chapter AALNC, FL Board of Nursing Continuing Education Provider #: 50-13.  LNCCs – This topic qualifies as contact hours that can be applied toward LNCC certification renewal.  If you are submitting this program as contact hours on application for LNCC renewal, report these hours on the application as nursing contact hours.

WHERE:  PLEASE NOTE NEW LOCATION!!!  We are now holding our Greater Orlando Chapter AALNC Meetings at University of Central Florida (UCF).  The street address is UCF Continuing Education, Innovative Center, 3280 Progress Drive, Suite 700, Orlando, FL 32826,  Room 722.

REGISTRATION:  If you plan to attend the meeting in person, PLEASE RSVP by contacting:  info@orlandoaalnc.org.  If you are a guest, please provide your name, address and FL nursing license number for continuing education credit and course completion certificates.

**NEW REGISTRATION INFORMATION:  Members and guests will be able to attend the program in person or “virtually” by logging in online.  Registration to attend the meeting online, will be completed through UCF Continuing Education.  Information regarding the online registration process will be sent ASAP.  The program will also be available for online attendance at any time after the live meeting.

FEES: The meeting / program is free to all Greater Orlando Chapter Members.  There will be a fee for guests:  $25.00 for in person attendance.  Virtual (online) attendance is also free for members, and $25.00 for guests.

Nurses: Contact The Health Law Firm for Representation in Last Minute Depositions and Hearings

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

We often receive calls from health professionals, including registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners regarding the possibility of representing them on short notice at a Board of Nursing hearing, or at a deposition related to a health care matter.

We Take Last Minute Cases.

Many law firms refuse to represent a client at a hearing unless given plenty of advance notice and preparation time. We, also, always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare, in order to provide our clients the best possible representation. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

We may do this too, if we believe the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile. However, often this is not the situation.

Administrative Proceedings Can be Very Complex.

In some cases individuals responding to a disciplinary complaint may be fooled into believing that they can effectively represent themselves. They later find out that they have gotten into waters over their heads. Laypersons (meaning, in this case, nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Nursing and the Department of Health (DOH) have enacted, may quickly be perplexed and at wit’s end. Often the individual may only figure this out days or weeks before the final hearing.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the Department of Health (DOH) investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Procedural Mistakes Can Be Damaging To Your Defense.

Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Nursing, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Nursing to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have a great many more procedural rights than you have at an informal hearing. However, we still recommend that you have an experienced health lawyer represent you at a formal hearing.

Available for Deposition Coverage.

In a number of cases, we have been requested to provide local deposition coverage in an area near to one of our offices, when an out-of-town lead counsel is unable to make the trip. If the issues involve health care, we are pleased to be able to assist whenever we can.

Often Professional Liability Insurance Will Pay Legal Fees for Deposition Coverage.

If you are a registered nurse, advanced registered nurse practitioner, certified registered nurse anesthetist, licensed practical nurse, nurse midwife or nurse practitioner who has a professional liability insurance policy, especially one with the larger national companies, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is to contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates, Nurses Service Organization (NSO) and many other malpractice insurance companies provide excellent deposition coverage.

The second thing you should do is to call an experienced attorney and schedule a consultation. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Consult With An Experienced Health Law Attorney.

We routinely provide deposition coverage to registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing registered nurses (RNs), advanced registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), licensed practical nurses (LPNs), nurse midwives and nurse practitioners in investigations at Board of Nursing hearings. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Have you ever had an informal or formal hearing before the Board of Nursing? What was the experience like? 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.

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.

Nurses Fight for Lawmakers to Relax Laws Requiring Doctors to Oversee Their Work

CCS Blog LabelBy Carole C. Schriefer, R.N., J.D., The Health Law Firm and George F. Indest, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

There’s a controversial tug-of-war in the health care industry. According to The Washington Post, in 11 states nursing groups are pushing legislation that would permit nurses with master’s degrees or higher to order and interpret diagnostic tests, prescribe medications and administer treatments without the supervision of a physician. Similar legislation is likely to be introduced in three other states. Currently, each state decides how much supervision nurses must receive from physicians.

This legislation faces strong opposition from physicians, led by the American Medical Association (AMA). This is according to an article in The Washington Post, published on March 24, 2013. Click here to read that article.

The Fight for Autonomy.

According to The Washington Post, the American Association of Nurse Practitioners (AANP) and other nursing groups are coordinating this legislation effort. These groups are receiving support from consumer advocates and state officials concerned about the possible doctor shortage.

Physicians’ groups are arguing that with little or no supervision, patient care will be compromised, according to a Bloomberg News article. The physicians’ strongest argument is the difference in education between them and advanced practice nurses (APNs). To read the Bloomberg News article, click here.

Difference in Education.

Advanced practice nurses obtain a bachelor’s degree in nursing, then spend between two and three years studying for a master’s degree. A master’s program includes extensive clinical training in addition to class work. One additional year of school is needed to get a Doctor of Nursing Practice (D.N.P.) degree.

Physicians obtain a bachelor’s degree, then continue on with four years of medical school. This is followed by at least three years in a residency program.

Laws for Nurse Supervision Differ State-by-State.

Each state regulates how much oversight nurse practitioners must have. According to Bloomberg News, in 16 states, including Colorado, New Hampshire, New Mexico and Washington, nurses can evaluate and diagnose patients, order diagnostic tests and prescribe drugs. Nurses in these states can start a practice or work in a clinic with no physician present.

Florida and Alabama nurses can’t prescribe controlled substances, including medications for pain, insomnia and attention deficit disorder and must have a supervisory agreement in place with a physician supervisor. Their practice is limited by what the physician places in the agreement.

Court Cases of Nurses vs. Doctors.

According to Bloomberg News, physicians in Iowa sued the state in 2010, after it allowed nurses with advanced training to perform a fluoroscopy, which is a radiographic procedure that takes pictures inside the body. The physicians do not believe nurses have the proper training to carry out this procedure. The case is before the Iowa Supreme Court after a lower court sided with the physicians.

Physicians sued the state of Colorado when the governor allowed nurse anesthetists to work without supervision. An appeals court sided with the nurses in 2012. There is a discussion of this case on our blog. Click here to read it.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, nurses, nurse practitioners, pharmacists, pharmacies and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Comments?

Do you think nurses with advanced degrees should be allowed to practice without the supervision of physicians? Do you think it is necessary for patient care for physicians to be present? Please leave any thoughtful comments below.

Sources:

Pettypiece, Shannon. “Nurse Practitioners, Doctors in Tug-of-War Over Patients.” Bloomberg Business Week. (March 7, 2013). From: http://www.businessweek.com/printer/articles/100802-nurse-practitioners-doctors-in-tug-of-war-over-patients

Aizenman, N.C. “Nurses Can Practice Without Physician Supervision in Many States.” The Washington Post. (March 24, 2013). From: http://www.washingtonpost.com/national/health-science/nurses-can-practice-without-physician-supervision-in-many-states/2013/03/24/98b241cc-8745-11e2-999e-5f8e0410cb9d_story.html

About the Authors: Carole C. Schriefer 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.

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 Service Organization (NSO) Attorneys, Lawyers and Defense Council in Florida

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

Often we learn after the fact that a health professional such as nurses, advance registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNPs) and nurse midwives (NMs) has received Nurses Service Organization (NSO) insurance, has had a legal problem, and has not been able to locate an attorney or law firm that accepts this type of insurance. We have offices in Florida and Colorado, but we have attorneys licensed in Florida, Colorado, Louisiana, the District of Columbia, Virginia and other states.

Additionally, we can provide legal advice and representation in license investigations and administrative proceedings in many other states.

If you have NSO Insurance, do not go without an attorney or with a lawyer that has little or no experience where you need it.

The Health Law Firm Will Work with Your Insurance Company.

Call us first. We can assist you in determining if your legal problem is covered by your insurance, and we can help you file a claim to have your legal defense expenses and costs covered. In most cases, we will accept the assignment of your insurance so that you do not have to worry about legal bills while your case is going on.

Contact Health Law Attorneys Experienced in the Representation of Nurses.

The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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. 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, if your insurance company will allow this. Many of these insurers will pay our firm to represent you in the legal defense of an investigation or complaint against your professional (nursing, medical, dental, psychology, mental health counselor) license or for an administrative hearing involving professional discipline.

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.

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.

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.

Advice for Nurses Regarding Department of Health Investigations

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

We see and hear about a lot of incorrect legal advice being given to nurses regarding what they should do if they are being investigated.

The incorrect advice being given even includes mailings they may have received containing a brochure “What Every Nurse Needs to Know” published by the National Council of State Boards of Nursing. It gives advice in response to the question: “What should you do if you are the subject of a complaint?” It advises the nurse to contact the Board of Nursing (BON) immediately in such an event and states that the complaint will be handled in a “fair and appropriate matter.” It advises that a BON representative will describe the investigation process and answer any questions that you may have about an investigation if a complaint is filed against you.

This does not appear to be sound advice and we would warn nurses against following it. Such advice may cause great damage to any defenses you may have, even if you are totally innocent.  If you don’t believe me, then contact a nurse who has been investigated and has received discipline and ask him or her what he or she thinks about this.  Alternatively, attend a Board of Nursing meeting and observe first hand the disciplinary cases that come before it (you can even get free continuing education credits for doing this) and talk to some of the nurses there.

You Have a Constitutional Right in Florida to Refuse to Make a Statement

Most states, Florida included, do not require you to make any statement to an investigator (or attorney) working on a Board of Nursing complaint.  We recommend that you not do so.

Under Florida law, your constitutional right to not make any statement that might help to incriminate you applies to such proceedings. Nurses are often falsely accused of misconduct or wrongdoing by patients, families of patients, employers and rivals. Most states do have adequate procedural safeguards in place that, if used by the nurse, will help to ensure the correct outcome of the matter. However, you must first know what these rights and safeguards are, and then know how to use them to your advantage in such proceedings. Very few attorneys are experienced in such matters and even fewer nurses are.

Investigations That May Affect Your Professional License Are Considered to Be “Penal” or “Quasi-criminal” Investigations

You should think of the investigation in the same light as a criminal investigation against you if you were wrongfully accused of a crime. In the case of a BON complaint, you can lose your license, lose your career, and be assessed monetary fines in the thousands of dollars. Why would you want to contact the investigator in such a matter and make statements that can later be used against you, if you don’t have to?

In most states, Florida included, the burden of proof is on the state to prove every element of the case against you. However, if you make any statements to the investigator (or the attorney for the Board), oral or written, this can be used against you. Even the simplest, most innocuous statements can cause you tremendous difficulty, because anything you say is something the state is no longer required to prove in an investigation or a hearing.

Even the Simplest Statement You Make Can Be Used Against You

For example, the state may not have an admissible document or a witness who is available at the time who can state that you actually saw or treated the patient. Without being able to prove this, the state may not be able to prove any charge against you.

Yet if you make a simple statement that you did treat the patient, the state no longer has to introduce any other proof of this. You have helped the state to prove its case against you without even meaning to do so. You have now made the case against you quicker, easier and less expensive for the state to prove; you may have made the case against you possible to prove when otherwise the state would not have been able to prove it at all.

Board of Nursing Does Not Usually Give Legal Advice to Nurses

It has also been our experience that BON representatives and staff do not have the time or resources to answer every question you may have. Furthermore, BON representatives are not able to give you legal advice on what to do. Even if you do speak with an attorney representing the BON, that attorney is not allowed by law to give you legal advice. Remember, the attorney representing the BON works for the state and is similar to a prosecutor. If you were charged with a criminal offense, would you call up the attorney prosecuting you and ask for her or his legal advice on what to do?

Nursing Liability Insurance May Cover Your Legal Defense of a Complaint Against Your License; Call Your Insurer Right Away

If you have nursing malpractice insurance, your professional liability insurance will most probably pay for your legal defense of a complaint filed against you, for a subpoena sent to you or for any deposition you must give. The need for defense of a complaint filed against you with the state licensing agency occurs many times more frequently than the need to defend a nursing malpractice claim or suit. This is the main reason we recommend that every nurse purchase nursing malpractice insurance. It is very inexpensive and usually provides excellent coverage.

However, always check to make sure that it will cover your legal expenses in a nursing complaint whether or not it results in a potential malpractice claim. If possible, purchase a rider to raise the limits of such legal defense payments for licensure defense to at least $50,000. If this is not available from this insurer, purchase a second policy.

Most nursing professional liability insurance allows the nurse to select the attorney of his or her choice to defend her or him. This is a very desirable feature to have in a professional liability insurance policy. Otherwise, the insurance company will reserve the right to pick your attorney, whether or not you agree with the choice.

Your Employer Ain’t Gonna Cover You

Many nurses make a terrible mistake thinking “I work for a hospital;  the hospital insures me.” Or “I work for a nursing home, the nursing home insures me.” This is not correct when it comes to complaints filed with the Board of Nursing or Department of Health. A hospital will have insurance (or will self-insure) to cover itself, not you. A nursing home will have insurance to cover itself, not you. If you have a complaint filed against you with the Board of Nursing, it is very rare that your employer will pay for your legal defense;  additionally this will almost never occur if you no longer work for that employer.

In many cases, and in most cases we have seen in the past, it has been the employer hospital or the employer nursing home that has filed the complaint with the against the nurse. You don’t think the employer is going to pay for your legal defense if it has filed the complaint against you, do you? In addition, the employer who has filed the complaint, in the vast majority of cases, also fires the nurse. So you may be out of a job as well as not be able to pay for a legal defense of your license.

If your employer obtains an attorney to represent you in a matter, ask the attorney: “Do you work for me or the employer?” Also ask: “If there is a conflict between my defense and the employer’s defense, will you continue to represent me or will you represent the employer?” Ask these questions in writing and get the answer in writing.

Failing to purchase professional liability insurance to protect your license is not very smart given how inexpensive it is. You have worked many years to obtain your professional license. You and your family have spent a great deal of money for your education to achieve it. If you can’t afford a legal defense, you may be forced into accepting a settlement agreement (also referred to sometimes as a “stipulation” or a “plea bargain”) for some type of disciplinary action. Even if you only receive some small disciplinary action, this will be shown on your license forever. It will be reported to national reporting agencies and will prevent many employers, especially the good employers from hiring you. It may even bar you from working in some circumstances. If you have a professional license in another state, it will be reported to the other states and similar disciplinary investigations will be started against you in these other states.

Consult with an Experienced Attorney, Regardless

Even if you don’t have insurance that covers your legal defense in an investigation that has been opened against you, please locate and consult with an experienced health lawyer who routinely defends nurses in nursing board cases. Additionally, don’t believe or rely on all of the rumors, gossip and “legal advice” that your colleagues who are not lawyers (or even your lawyers friends who are not experienced health lawyers) will give you. The fee for the legal consultation is worth the price. Make your decisions from a position of experienced knowledge, not one of ignorance or false assumptions.

We recommend that if you receive any notice or indication that anyone has filed a complaint against you with the BON or any other licensing agency that you do not contact the BON, its investigators, or any of its representatives.  We recommend that you immediately contact an attorney who specializes in defending nurses before the BON.

Locating an Experienced Attorney

If you are unable to locate an attorney experienced in handling nursing cases, contact The Health Law Firm, The American Association of Nurse Attorneys (TAANA), the American Health Lawyers Association (AHLA), or your state bar association, by telephone or by visiting their website. Ask for a referral to such an attorney. Be sure to ask the attorney how many similar cases has she or he actually handled before the Board of Nursing.

This Advice Applies to Other Health Professionals as Well

The foregoing information applies to doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, and all other licensed health professionals;  not just to nurses.

The attorneys of The Health Law Firm represent nurses, doctors, dentists, pharmacists, advanced registered nurse practitioners (ARNPs), certified registered nurse practitioners (CRNAs), midwives, physician assistants, massage therapists, psychologists, mental health counselors, social workers, physical therapists, respiratory therapists, medical students, residents, interns and all other licensed health professionals, in Florida and also in states other than Florida.  In many states we are permitted to represent the health professional in investigations and administrative proceedings.

The Bottom Line:  Don’t Talk to Investigators

The bottom line is:  Don’t talk to an investigator until your attorney has checked him or her out and advises you it is okay to do so.  This will rarely happen.

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

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

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.