State Nursing Boards to Give Greater Scrutiny to License Applications Watching for Fraud: Part One: Reciprocity and Fraudulent Applications

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

This will be a two-part blog series focusing on increased scrutiny given to license applications by state nursing boards following the suspension or revocation of 13 nursing licenses due to alleged fraud.

The first part will discuss the incident that initiated the heightened inquiry expected from state nursing boards, as well as the reciprocity process in licensing.  The second part will discuss how these new and more extensive investigations will affect nurses and their employers.

A Case of Fraud.

Nurses seeking licensure by reciprocity should expect their applications to receive increased scrutiny by the licensing board based upon the recent events in Massachusetts.  The State of Massachusetts Board of Registration in Nursing recently discovered more than a dozen nursing licenses it issued were obtained by fraud.  The licenses were obtained by submitting fraudulent documents showing the individuals were licensed as nurses in other states. The Board revoked or suspended the licenses of those individuals and Massachusetts health regulators launched a statewide review of some 21,000 professional licenses for fake credentials.  All of the fraudulent applications sought licensure in Massachusetts through reciprocity provisions in the state’s law.

Click here to read more details on the story.

Licensure by Reciprocity.

Most states offer licensure by reciprocity to nurses and other health care professionals that are licensed in other jurisdictions.  Reciprocity broadly defined is a mutual exchange of privileges.  In the matter of professional licensing, it is a provision that allows for a license from one state to be recognized as valid in another.  Licensure by reciprocity allows a health care provider to forgo retaking examinations when seeking a license in a new jurisdiction.  The normal process for licensure by reciprocity is for the board staff or an outside contractor to review the applications, verify the information and then make recommendations to the board.  The board then acts upon the recommendations.

Forged Documents and Failed Verifications.

The 13 nurses alleged of fraud are said to have taken advantage of the reciprocity provision in Massachusetts.  The investigation in Massachusetts revealed that four of the applications were submitted with forged documents purportedly from the Hawaii Board of Nursing.  Additionally, six others had forged documents claiming the applicants were licenced in Alabama and in Oklahoma.  The applications for licensure bore several similarities including signatures by improper officials for the states in which the applicants were allegedly licensed.  It appears the process of vetting these candidates failed in the verification of the credentials.

The Massachusetts Board engaged Professional Credential Services of Nashville, as an outside contractor to review the applications and verify information submitted before professional licensing was extended by the state.  Professional Credential Services is a contractor for numerous boards and those boards are also reviewing the applications previously processed by the company.

Not the First Time.

The Massachusetts Board is not the first state board to discover numerous licenses were issued based upon fraudulent information.  Several years ago, the Florida Board of Massage Therapy discovered that a corrupt employee of a legitimate college with a legitimate massage therapy program had been taking cash payments from applicants and forging transcripts used to obtain massage therapy licenses.  Some of the applicants actually had the required education and training necessary to become licensed, but the corrupt employee embezzled their payments without submitting their paperwork through the college.

The investigation in Florida eventually led to the corrupt employee, in part due to facts common to all cases.  The fraudulent licenses discovered in Massachusetts also have some common elements that could indicate a single individual or a small group of individuals is responsible for all the fraudulent claims.  To read about the massage therapy fraud case in Florida, click here to read our past blog.

Comments?

Do you think nurses and other health care professionals should have to retake examinations when seeking a license in a new jurisdiction?  Please leave any thoughtful comments below.

Source:

Lazar, Kay and Freyer, Felice J.  “State finds license fraud by 13 nurses.”  The Boston Globe: 13 Sept. 2015.  Web.  25 Jan. 2016.

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.

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.

Keywords: Board of Nursing, Discipline, Board of Nursing attorney, Board of Nursing case, Board of Nursing lawyer, Board of Nursing representation, Florida Board of Nursing, Massachusetts Board of Registration in Nursing, Professional Credential Services, Florida Board of Massage Therapy, fraudulent credentials, fraudulent licenses, fraudulent applications, health law firm, licensed practical nurses, medical licensing board, licensure by reciprocity, nurse, nurse attorney, nurse lawyer, nurse midwives and nurse practitioners, 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 © 1996-2016 The Health Law Firm. All rights reserved.

Terminated Nurse Whistleblowers Retaliation Claims Reinstated

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

Husband and wife, Ronald and Ramona Young, were terminated from their nursing jobs with CHS Middle East LLC (CHS), following reports made by the couple regarding alleged violations of the company’s contract with the United States government.  The couple alleged that CHS was using expired medications, employing improperly trained and inadequate staff, and lacking protocols and guidelines.  The pair filed a retaliation suit against the health care contractor (operating a U.S. Department of State outpost in Iraq) claiming that they engaged in protected activity under the False Claims Act (FCA) for blowing the whistle about such violations.

CHS contended in its motion for summary judgment that the Youngs’ conduct was not protected whistleblower activity because the couple did not assert allegations of false claims submissions by the company.  Furthermore, CHS maintained that the contractor fired the Youngs due to “loud, accusatory and even threatening” behavior aimed at CHS management and fellow co-workers.  The company concludes the Youngs were terminated “for very good cause.”

To read the motion in opposition filed with the court by the Youngs, click here.

This is the couple’s second go at the suit.  The first attempt resulted in the case’s dismissal in 2013.  However, the U.S. Fourth Circuit Court of Appeals reinstated it in 2015, with a finding that quality-of-care concerns fall under the protections offered by a recent ruling expanding FCA liability.

To read the Fourth Circuit’s full opinion, click here.

The Case That Changed the Rules.

The claims asserted by the Youngs seem to mirror allegations of FCA violations raised in United States ex rel. Badr v. Triple Canopy, Inc., Nos. 13-2190, 13-2191 (4th Cir. Jan. 8, 2015).  In that case, the Fourth Circuit implemented the doctrine of implied certification under the FCA to determine liability.

Fourth Circuit Judge Dennis W. Shedd stated, “While we have guarded against turning what is essentially a breach of contract into an FCA violation, we have also continued to recognize that the FCA is ‘intended to protect the treasury against the claims of unscrupulous contractors, and it must be construed in that light.'”  Id. (quoting United States ex rel. Owens v. First Kuwaiti General Trading & Contracting Co., 612 F.3d 724, 734 (4th Cir.2010).  Furthermore, “to satisfy this goal, courts have recognized that ‘a claim for payment is false when it rests on a false representation of compliance with an applicable contractual term.”  Id. (quoting United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1266 (D.C.Cir.2010) (SAIC ).

In other words, the doctrine treats a claim submitted by a contractor as an implicit representation that the contractor has accordingly complied with any relevant contract terms, laws or regulations.  If the contractor knows it is in noncompliance with contractual terms, a submission for a claim renders a false representation in determining FCA liability.

To read the full opinion of the Fourth Circuit in United States ex rel. Badr v. Triple Canopy, Inc., Nos. 13-2190, 13-2191 (4th Cir. Jan. 8, 2015), click here.

In determining that implicit false statements may constitute fraud under the FCA, even in the absence of the explicit condition of payment, the Fourth Circuit further concluded that an employee raising concerns of implicit false statements may likewise constitute protected whistleblower activity.

Not All U.S. Courts of Appeals Are Embracing the Doctrine.

The U.S. Seventh Circuit Court of Appeals more recently rejected the notion of the implied certification doctrine in United States v. Sanford-Brown, Limited, No. 14-2506 (7th Cir. June 8, 2015).  In that case, Brent M. Nelson, former Director of Education of Sanford-Brown College (SBC), contended that the defendants agreed to comply with all Title IV regulations by entering into a Program Participation Agreement (PPA) with the U.S. Secretary of Education.  Nelson argued that due to this agreement of compliance, SBC fraudulently used Title IV benefits when they made, or caused students to make or use, applications for federal subsidies with the knowledge that they were not in compliance with Title IV restrictions.

On the flip side, SBC argued that in order to satisfy the “knowingly” component under the FCA, Nelson must offer proof of SBC’s intention to defraud the government out of subsidies upon the execution of the PPA.  The Seventh Circuit relied on its prior decision in United States ex rel. Main v. Oakland City Univ., 426 F.3d 914 (7th Cir. 2005), where it concluded that “a PPA entered into by an institution qualified as a false record under the FCA where the promises of future compliance it contained were false when the parties entered into the agreement.”  Id. at 916.

However, in Nelson’s case the Seventh Circuit did not embrace the implied certification theory, finding that Nelson failed to present any evidence to prove that SBC entered into the PPA in bad faith.  The Seventh Circuit is less liberal in its interpretation of the doctrine stating, “fraud requires more than a breach of promise: fraud entails making a false representation, such as a statement that the speaker will do something it plans not to do.”

To read the full opinion of the Seventh Circuit in United States v. Sanford-Brown, Limited, No. 14-2506 (7th Cir. June 8, 2015), click here.

Comments?

What are your thoughts on the implied certification doctrine?  Do you think FCA liability and whistleblower protections should extend to implicit false statements?

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims.  We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.  We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

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

Sources:

United States ex rel. Badr v. Triple Canopy, Inc., Nos. 13-2190, 13-2191 (4th Cir. Jan. 8, 2015).

United States v. Sanford-Brown, Limited, No. 14-2506 (7th Cir. June 8, 2015).

Young et al. v. CHS Middle East LLC, No. 13-2342 (4th Cir. May 27, 2015).

Fischler, Jacob.  “Nurses Say Whistleblowing Activity at Iraq Base Protected.”  Law360.  Portfolio Media Inc.: 8 Jan. 2016.  Web.  11 Jan. 2016.

Overley, Jeff.  “Nurses’ Whistleblowing Protected Under FCA, 4th Circ. Says.”  Law360.  Portfolio Media Inc.: 27 May 2015.  Web.  11 Jan. 2016.

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 health attorney, qui tam lawyer, health law attorney, Florida health lawyer, The Health Law Firm, health law defense lawyer, health care fraud attorney, whistleblower attorney, False Claims Act (FCA) defense lawyer, FCA attorney, government health care fraud, health fraud and abuse allegations, health fraud attorney, FCA legal representation, relator attorney, qui tam attorney, relief from retaliation by employer, legal representation for retaliatory claims, FCA retaliation, wrongful termination attorney, FCA employee investigation, implied certification doctrine, implicit false statements theory, government health contractor attorney, noncompliance with contractual terms, Title IV restrictions attorney, FCA liability determination, employee protected activity under FCA

“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.

Nonprofit Teaching Hospital Agrees to Pay $850,000 in HIPAA Settlement

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

Massachusetts-based Lahey Clinical Hospital Inc. (Lahey) recently entered into a settlement agreement with the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) to resolve potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules.  The HHS press office announced on November 25, 2015, that Lahey agreed to pay $850,000 and to adopt an extensive action plan to correct deficiencies in its HIPAA compliance program as a part of a Resolution Agreement.

To read the full Resolution Agreement, click here.

Lahey is a nonprofit teaching hospital affiliated with Tufts Medical School.  It is a covered entity per Section 160.103, 45 Code of Federal Regulations, and thereby required to comply with HIPAA rules.  The medical center provides primary and specialty care to hundreds of thousands of patients each year.

In 2011, Lahey notified HHS that an unencrypted laptop used in connection with a computerized tomography (CT) scanner had been stolen from an unlocked treatment room during overnight hours.  The laptop hard drive contained certain unsecured electronic protected health information (ePHI) of approximately 599 patients.  The OCR notified Lahey of its investigation regarding Lahey’s compliance with HIPAA by way of letter dated November 9, 2011.

To read the full press release issued by HHS on November 25, 2015, click here.

OCR’s Investigation into Lahey’s Conduct.

The OCR claimed that its investigation uncovered Lahey’s widespread non-compliance with HIPAA rules.  Per the terms of the Resolution Agreement, no admission or adjudication of guilt has been determined by Lahey or HHS.  However, the OCR reported to Lahey that its investigation indicated the following potential HIPAA violations:

(1)    Failure to conduct a thorough risk analysis of all of its ePHI as part of its security management process (section 164.308(a)(1)(ii)(A), 45 Code of Federal Regulations (C.F.R.));

(2)    Failure to implement reasonable and appropriate physical safeguards for a workstation that accessed ePHI to restrict access to authorized users only (section 164.310(c), 45 C.F.R.);

(3)    With respect to the workstation, failure to implement and maintain policies and procedures that govern the receipt and removal of hardware and electronic media that contain ePHI, including the movement of these items within its facility (section 164.310(d)(1), 45 C.F.R.);

(4)    Failure to assign a unique user name for identifying and tracking user identity with respect to the workstation at issue (section 164.312(a)(2)(i), 45 C.F.R.);

(5)    Failure to implement a mechanism to record and examine activity at the workstation at issue (section 164.312(b), 45 C.F.R.); and

(6)    Impermissible disclosure of the ePHI of 599 patients for a purpose not permitted by the Privacy Rule (section 164.502(a), 45 C.F.R.).

The Implementation of a Corrective Action Plan.

Lahey agreed to enter into a Corrective Action Plan (CAP) with HHS as a part of the settlement.  In accordance with the CAP, Lahey has agreed to certain action obligations to be completed within specific time frames.  Lahey is expected to fully and timely comply with all provisions contained in the CAP.  Should Lahey breach any of the provisions contained in the CAP, it is offered a limited amount of time to correct the breach in order to avoid civil monetary penalties (CMP) pursuant to section 160.312(a)(3)(i) and (ii), 45 C.F.R.

For more information on penalties resulting from failure to comply with HIPAA, click here read one of my previous blogs.

HIPAA is a Tricky Situation.  

With the rise of the use of technological devices for personal and professional purposes, HIPAA violations are now resulting from seemingly innocent behavior that actually constitutes a breach.  It is important to be aware of what all HIPAA encompasses and how to safeguard yourself and your workplace from blindly falling into its snare.  Click here to read an informative and eye-opening blog post by The Sentinel Watch regarding various HIPAA perils for health care professionals that aren’t so obvious.

HHS recently issued a HIPAA fact sheet to assist health care professionals and organizations.  To review the document providing a basic overview of HIPAA’s rules and your responsibilities as a licensed health care professional, click here.

For even more information on HIPAA basics and the implementation of safeguards, read one of my previous blog posts here.

Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, or corrective action plans , please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620.

Sources:

HHS Press Office.  “HIPAA Settlement Reinforces Lessons for Users of Medical Devices.”  Press Release.  U.S. Department of Health & Human Services: 25 Nov. 2015.  Web.  3 Dec. 2015.

Resolution Agreement, 1-2, Nov. 19, 2015.

Appendix A: Corrective Action Plan, 2 & 6, Nov. 19, 2015.

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: Health Insurance Portability and Accountability Act (HIPAA), HIPAA, HIPAA compliance, data security, protected health information (PHI), electronic protected health information (ePHI), Patient privacy, U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), patient rights, HIPAA compliance audit, HIPAA violation, penalties for HIPAA violation, criminal penalties for HIPAA violation, civil penalties for HIPAA violation, civil monetary penalties for HIPAA breach, HIPAA compliance, privacy, defense attorney, HIPAA defense lawyer, health care professional attorney, HIPAA defense attorney, HIPAA violation help, HIPAA attorney, HIPAA lawyer, compliance plans, health law firm, The Health Law

“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 © 1996-2015 The Health Law Firm. All rights reserved.

Florida Federal Court Upholds False Claims Act Retaliation Claim Against Northside Hospital and HCA, Inc. Health System

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

In a recent decision, the United States District Court for the Middle District of Florida refused to dismiss a second amended complaint for a False Claims Act (FCA) Retaliation Action. The Florida federal court found that the second amended complaint filed in the case adequately stated protected conduct the former employee engaged in as an effort to prevent and stop further FCA violations by the alleged offending hospital. Therefore, it properly stated a cause of action.

The Facts of the Case.

Brenda Farnsworth, former Vice President of Quality and Risk Management for Northside Hospital, was placed on administrative leave for alleged insubordination in February of 2012. A whistleblower action by Farnsworth against the hospital and its parent company, HCA, Inc., quickly followed, but the government did not intervene.

Farnsworth dismissed her original complaint and filed a second claim, this time an FCA retaliation claim per Section 3760(h), 31 United States Code. The Court dismissed that claim without prejudice, however, due to Farnsworth’s failure to properly demonstrate any specific protected conduct she engaged in as an effort to prevent or stop the alleged FCA violations.

To see the full Order of the court dated May 29, 2015, click here.

Requirements for Filing a Successful Claim.

A showing of protected conduct (in furtherance of an FCA enforcement action by way of a whistleblower lawsuit) in an effort to prevent or remedy fraudulent activity is necessary in order to successfully file an FCA claim. Specific actions of internal reporting or other alternative means to a lawsuit need to be outlined in the complaint.

Dismissing an action without prejudice allows the Plaintiff the opportunity to remedy the defect in the complaint and re-file the claim.

The Third Time’s a Charm.

Farnsworth filed her second amended complaint and the defense again moved to dismiss it. However, this time the court found that Farnsworth had satisfactorily corrected the errors in her retaliation claim to meet the standards set forth for filing a claim under the FCA.

Click here to view the Second Amended Complaint.

Farnsworth alleged defendants were billing Medicare and Medicaid for treatments not performed by attending physicians, falsifying medical records for services ordered by a physician on suspension, double billing for unauthorized medical research, and billing for tests and treatments that were not medically necessary.

For more information on the allegations raised, click here to read about the case at its’ commencement in 2013.

Furthermore, Farnsworth detailed instances in which she internally reported the alleged fraudulent activity to specific members of management within Northside Hospital and HCA. Such internal reports constituted a showing of an effort to stop the illegal activity and prevent further violations to satisfy the requirements for an FCA claim.

Therefore, the court denied the alleged defendants’ motion to dismiss as to HCA, Inc. and Northside Hospital.

To read more on the court’s full decision of September 8, 2015, upholding the Second Amended Complaint, click here.

The Purpose of the False Claims Act and Relief from Retaliation.

The FCA has become the government’s main line of defense against health care fraud and abuse. The FCA allows any employee with knowledge of fraudulent activity to bring a civil suit against an employer in the name of the government.

Furthermore, the government protects such employees from any retaliation by the employer for reporting alleged health care fraud and abuse. Section 3730(h)(1), 31 United States Code states:

“Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.”

The Health Law Firm is highly experienced in assisting health care employees with whistleblower, qui tam, and retaliation claims under the FCA.

To learn more on whistleblower/qui tam cases, read our two-part blog. Click here for part one and click here for part two.

Editor’s Comments:

Brenda Farnsworth, the plaintiff in this case, had been the hospital’s Vice President of Quality and Risk Management. When she did the correct thing, to protect patients, it is alleged that she was retaliated against. Physicians, nurses and hospital employees should always do the right thing. When superiors refuse to take action or, worse, retaliate against you, blow the whistle!

Comments?

Do you have knowledge of or have you ever suspected health care fraud or abuse in your workplace? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblower cases both in defending such claims and in bringing such claims. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters. We have represented doctors, nurses and others as relators in bringing qui tam or whistleblower cases, as well.

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

Sources:

American Health Lawyers Association. “U.S. Court in Florida Refuses to Dismiss FCA Retaliation Action Against Health System.” Fraud and Compliance: AHLA. 25 Sept. 2015. Web. 28 Sept. 2015.

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: False Claims Act defense attorney, retaliation defense attorney, health care fraud defense lawyer, anti-fraud attorney, Medicare and Medicaid attorney, fraudulent practices in health care, whistleblowers lawyer, FCA violations, fraud detection, qui tam lawyer, health attorney, defense attorney, The Health Law Firm, health law firm, fraud investigations, fraudulent Medicare billing, federal health care program fraud, illegal Medicare and Medicaid billing practices, relief from retaliation, False Claims Act (FCA) Retaliation Action, retaliation claims defense lawyer

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“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 © 1996-2015 The Health Law Firm. All rights reserved.

South Florida Nursing Home Chain to Pay $17M in Whistleblower Suit

IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
A Miami-based nursing home chain has agreed to pay a record $17 million to settle a False Claims Act suit that was brought by its former Chief Financial Officer (CFO). The United States Attorney’s Office claims that Plaza Health Network, formerly known as Hebrew Homes, allegedly doled out illegal payments to physicians for referrals of Medicare patients from 2006 through 2013.

A Sophisticated Kickback Scheme.

According to the U.S. Attorney’s Office and the Secretary of Health and Human Services, Plaza Health Network hired physicians to serve as medical directors, but in reality these were “ghost positions.” These positions allegedly existed solely for the physician to refer patients to the company’s facilities, dramatically increasing the number of referrals. Each facility had several medical directors who were paid thousands of dollars each month.

The suit also alleged that Plaza Health Network submitted false claims to Medicaid and Medicare for therapy services that were never provided at inflated costs to taxpayers.

Click here to read more from the Miami Herald.

A Record Settlement.

The settlement is reportedly the largest in U.S. history for a nursing home allegedly violating the Anti-Kickback Statute. This settlement also resolves a whistleblower suit filed by the company’s former CFO. He filed the suit under a provision of the law ( the False Claims Act) that allows a private individual to sue on behalf of the government. He will collect more than $4 million as part of the settlement. “Illegal inducements paid to physicians in exchange for patient referrals will not be tolerated,” said Deputy U.S. Assistant Attorney General Benjamin C. Mizer.

The Legalities of Such Cases.

This case was brought under the federal False Claims Act or “whistleblower law.” This mandates standards and regulations for both civil and criminal penalties against those falsely billing the government. False Claims Act cases, such as this recent one, are typically filed in a qui tam (or whistleblower) proceeding. This type of action involves a private party filing a lawsuit against a defendant who allegedly is defrauding the government. The “whisleblower” receives a percentage of the money recovered by the government, often millions of dollars. Usually these types of cases protect the whistleblowers from receiving any potential prosecution or punishment due to involvement in the fraudulent actions.

The government urges health care providers to step forward and report illegal and fraudulent activities as soon as they are uncovered. The False Claims Act provides a system of rewards that encourages whistleblowers to bring these issues to the government’s attention.
To read one of our past blogs on this topic, click here.

Contact Health Law Attorneys Experienced with Qui Tam or Whistleblower Cases.

Attorneys with The Health Law Firm also represent health care professionals and others who may desire to file a qui tam, False Claims Act or whistleblower suit. We work with physicians, nurses and other professionals yo investigate, document and file such cases. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding and other services that assist us in such matters. We have represented number of doctors and other licensed health professionals as relators in bringing qui tam or whistleblower cases. Our attorneys are also available to defend physicians, medical groups and health care providers in qui tam or whistleblower cases.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Individuals working in the health care industry often become aware of questionable activities. Often they are even asked to participate in it. In many cases the activity may amount to fraud on the government. Has this ever happened to you? Please leave any thoughtful comments below.

Sources:

Hamer, Spencer. “Miami Nursing Home to Pay Record $17M in Whistleblower Suit.” JDSupra Business Advisor. (June 19, 2015). From:
http://www.jdsupra.com/legalnews/miami-nursing-home-to-pay-record-17m-in-61433/

Ovalle, David. “South Florida Nursing Home Chain to Pay $17 Million in Federal Settlement.” Miami Herald. (June 16, 2015). From:
http://www.miamiherald.com/news/local/article24666172.html

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

KeyWords: False Claims Act attorney, Anti-Kickback Statute, relator’s counsel, qui tam lawsuit, defense attorney, litigation, whistleblower, whistleblower lawsuit, whistleblower protection, fraud defense, fraud prevention, Medicare, whistleblower’s lawyer, Medicare fraud, defense attorney, defense lawyer, legal representation, government health programs, Medicare audit, Florida Medicare, oncologist, Florida healthcare, fraud schemes, Medicare overbilling, whistleblower settlement, 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 © 1996-2015 The Health Law Firm. All rights reserved.

The American Nurses Association Breathes New Life Into The Nursing Code of Ethics For 2015

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 a daily basis, the average nurse uses knowledge, training and ethical standards to make vital decisions regarding patient health. Nurses are required to quickly process simple and complex emergency situations, which leaves little room for second guessing. So, to help guide those in the profession, the American Nurses Association (ANA) created a Code of Ethics.

This Code is the structure that provides foundational standards and offers guidance to practicing nurses for various situations. It also sets the standards against which nursing performance can be judged. For the first time since 2001, the ANA has revised the Nursing Code of Ethics. The revised Code was released to the public on January 1, 2015.

 

Why Now?

The revised version of the Nursing Code of Ethics is geared to help nurses in a more modern practice environment. It addresses some of the more current issues, including confidentiality issues raised by social media, treatment for end-of-life care and the integration of social justice into health care policy as a whole. These guidelines need to be updated as conditions and society changes, and health care advances and presents new problems.

 

What Changes Were Made?

Provisions 1-3: These contain newly established guidelines on advocating for the                                    patient, family and community, along with the need to exercise                                        kindness and respect in all professional relationships.

Provisions 4-6: Contains new guidelines on delivering and maintaining competent care                            that includes self-respect and self-care, accountability, and                                              responsibility to continue learning and growing personally and                                          professionally.

Provisions 7-9: Sets forth broader health issues in the community and on a national                                and international level, along with the advancement of professional                                  values, social policy and education.

 

The Nursing Code of Ethics is a reflection of the proud ethical heritage of nursing and serves as a guide and promise to society for all nurses now and into the future.

To view the complete revised Nursing Code of Ethics, click here.

ANA

Click here to find out more information on the American Nurses Association’s 2015 Year of Ethics

 

Comments?

What are your thoughts on the updates made to the code of ethics? Do you think it will help nurses identify components of real-world problems and analyze the situation effectively? Please leave any thoughtful comments below.
Contact Health Law Attorneys Experienced in Representing Nurses.

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

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

Howard, Cynthia. “2015: The Year of Nursing Ethics.” Nurse Together. (February 5, 2015). From: http://www.nursetogether.com/2015-the-year-of-nursing-ethics

Northeast Ohio Media Group Marketing Staff. “Year of Ethics Offers Nurses Guidance and Support Regarding Moral Decisions.” Cleveland.com. (April 15, 2015). From: http://blog.cleveland.com/university_hospitals_health_system_inc/2015/04/year_of_ethics_offers_nurses_g.html

American Nurses Association. “Code of Ethics for Nurses With Interpretive Statements.” (May 1, 2015). From: http://www.nursingworld.org/Mobile/Code-of-Ethics

 

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.

Nurses Need to Monitor Their Personal Nursys Profiles

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

Nurses, did you know that the status of your license and disciplinary actions taken against you are constantly being tracked by employers? It is actually relatively easy with the National Council of State Boards of Nursing (NCSBN) database, called Nursys. What’s even scarier is employers can sign up for an e-Notify option. This is an e-mail notification system that delivers real-time updates to employers about nurses. The Nursys’ e-Notify option is frequently used by hospitals and medical groups to regulate and screen employees. Click here to read a previous blog on Nursys.

It is imperative, as a nurse, you regulate your own profile regularly for discrepancies. You can do so by clicking here for the Nursys website.

Be Familiar with Nursys and the e-Notify Option.

Nursys is the only national database for license verification, discipline and practice privileges for registered nurses (RNs), licensed practical nurses (LPNs), practical nurses (PNs), certified nurse midwives (CNMs), certified nurse practitioners (CNPs), clinical nurse specialists (CNSs) and certified registered nurse anesthetists  (CRNAs). The data on Nursys comes directly from the Florida Board of Nursing and forty-six (46) other state nursing boards. The e-Notify option provides automatic email notifications of licensure status changes and discipline action changes to employers directly. Any institution that employs a nurse can track or check licensure and discipline information at any time.

Employers using Nursys have the ability to view and manage their institution’s nurse employees, including uploading nurse profiles, searching nurses by name, editing nurse information and viewing individual nurse reports.

Nursys Makes it Easy for Employers to Keep Tabs on Nurses.

According to the website, a nurse’s profile on Nursys contains:

–  the nurse’s name,
–  licensed jurisdiction,
–  license type
–  license number,
–  compact status (single state or multistate),
–  license original issue date,
–  license expiration date,
–  discipline against license, and
–  discipline against privilege to practice.

e-Notify will alert subscribers when then following changes are made to a nurse’s record:

–  license status,
–  license expirations, and
–  publicly available disciplinary and alert action and resolution.

Flaws in the Nursys Program.

If you have recently received discipline from the Florida Board of Nursing, or any other state board of nursing, it would be prudent to immediately check this website to verify that any information listed under your profile is accurate.  The website clearly states that it is the nurse’s responsibility to contact the board of nursing to update his or her information.

Our law firm has encountered errors on this database that our client contended caused him to lose employment opportunities. Be responsible for verifying the information on your personal profile.

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.

Comments?

Did you know about Nursys? What do you think of the database? Do you monitor your profile? Please leave any thoughtful comments below.

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.

Think You Have Professional Liability Insurance Through Your Employer? Think Again, Nurse!

00034_RT8By Joanne Kenna, R.N., J.D., The Health Law Firm

Not a week goes by without a call coming into the firm from a nurse whose license is under investigation for some reason or another.  The nurse is generally dumbfounded that this has happened.  “But I’m a good nurse.  I never thought this could happen to me,” is the sad refrain.

Very often the nurse is correct.  He/she is a clinically good nurse.  Often there has never been any prior problem or any question of this.  But all it takes is one instance, just one violation that gets reported to the Department of Health (DOH), and the nurse is suddenly in the position of having his/her license investigated.  The nurse then has to defend his/her actions to protect the integrity of his/her license, and possibly even his/her ability to continue practicing, against the allegations of the violation.

Employer’s Insurance Coverage Protects the Employer, Not You.

Normally when a licensure investigation is initiated, the nurse is upset and angry, and is determined to do whatever is necessary to protect his/her license.  At this point the intelligent  nurse will usually start making telephone call(s) to seek legal advice and counsel.  Then comes the harsh reality.  Obtaining good legal services is expensive.  It can be very expensive.  Inevitably the question is put to the nurse as to whether he/she has insurance.  All too often the nurse responds that his/her insurance is (or more often at this point, was) through his/her employer.

Then more reality hits.   Often the nurse has already been terminated from employment by this point.  So, no insurance.  Even if the nurse is still employed, the nurse quickly finds out that the coverage he/she believed existed, and often was led by the employer to believe existed, is not really a policy for the nurse at all.  The nurse is “covered” under the hospital’s (you can substitute nursing home, clinic, etc., as applicable here) policy really only to protect the hospital’s interests.  Therefore, this “coverage” extends only to those situations and occurrences where the hospital might have liability.  (And even in that case the nurse should be wary because it is really the hospital’s interests that are being protected by the policy.   Where the nurse’s interests happen to be aligned with the hospital’s, all is good.  But where they are not, well, the hospital has coverage and its interests will be protected; as for the nurse, he/she is on his/her own).

What you should know is that the hospital’s insurance coverage is there to protect the hospital – – period.

Protect Your Nursing License with a Personal Professional Liability Insurance Policy.

You should also recognize that no nurse is immune from a professional liability claim.  No matter how conscientious and clinically competent the nurse may be, the potential for a professional licensure action always exists.   Day after day nurses forego legal representation when they are under licensure investigation because legal representation is unaffordable for them.  While some nurses get lucky and will have a good outcome in spite of this, many others will not.  The very idea of gambling with your nursing license that took so much effort to earn and is the key to your future earning capacity, is not only risky, it is downright foolish.

The truth of the matter is that all nurses should protect themselves by obtaining a personal professional liability insurance policy.  A good policy will provide medical malpractice and, very importantly, licensure protection coverage.  The cost on these policies varies, but it is generally quite affordable, often costing little more that $10 – $15 a month.

Licensure protection coverage provides the nurse with the ability to obtain competent legal representation from an attorney or a law firm that is familiar with handling licensure investigations and the disciplinary actions that can ensue from them.  Good policies will provide $10,000 – $25,000, and even more for legal expense.  Having this money available at the time it is needed allows the nurse to focus on his/her defense and provides the nurse the opportunity to pursue this defense all the way through the administrative process.  All too often the alternative is having the limited available funds dictate the nurse’s acceptance of an undesired resolution to the matter.

Be Smart, Get Professional Insurance Before it is Too Late.

So, if your independently wealthy, you can continue practicing without much concern about how you will be able to afford legal services for licensure defense if and when that becomes necessary.  If though you are not, and your answer to the question of whether you have insurance would be that you do through your employer, now is the time to start thinking about changing that.  Tomorrow just might be too late.

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.

Comments?

Do you have personal professional liability coverage? Are you thinking about getting it now? Please leave any thoughtful comments below.

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.

“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: Beware of Nationwide Telephone Prescription Drug Scam

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

The Drug Enforcement Administration (DEA) is warning nurses to be aware of a prescription drug scam. This telephone scheme is extorting money from people all over the country. On November 28, 2012, the DEA released a press release explaining the details of the scam.

Criminals Ask Victims for Cash Over the Phone.

The scam starts with criminals posing as DEA agents calling victims by telephone. Frequently the victims will have recently purchased prescription drugs over the internet or by phone. The imposters tell the victims that purchasing the drugs in that manner is illegal, and that they must pay a fine. If the victims refuse to send money, the phony DEA agents threaten to arrest the victims or search their property. Some of the victims have also reported unauthorized use of their credit cards after purchasing the prescription drugs.

Click here to read more on this scam from a DEA press release.

The DEA wants to remind nurses that no DEA agent will ever contact you by telephone. They might show up at your house early in the morning or while you are eating dinner, however. Also, agents never request money or any other form of payment.

Nurses You Need to Know the Rules for Purchasing Drugs Electronically or By Phone.

Many times it may be illegal to purchase controlled drugs by phone or over the internet. That’s why you should go to Canada to do it. There are direct flights from Orlando. However, some pharmacies that meet stringent requirements and are registered by the DEA are allowed to sell drugs over the internet or by phone. So don’t be fooled by this telephone scam.

How Do Scammers Get Your Information?

The scammers are counting on the fact that if you have done this, you, as a nurse, will get scared and believe their accusations. Many people have no idea whether such conduct is legal or illegal. These imposters are banking on your ignorance and fear of losing your license to practice. They are also banking on the fact you won’t report this to the real police.

Where do they get this information? Chances are, they are just “cold-calling” people. There are bound to be a certain number of people they reach who have done this. However, if they seem to have your personal information (or credit card number) report this to the police right away. Be sure to obtain a written police report. Also, you should file a HIPAA Privacy Complaint with the Office of Civil Rights (OCR) to begin an investigation if you believe your personal information has been stolen by or given to someone else to use.

Why Pain Patients Turn to Alternative Means to Obtain Drugs.

It is no surprise that the DEA, along with other law enforcement agencies, has stepped up its efforts to cut down on overprescribing. To see examples of what I am talking about read my past blogs: Walgreens fights the Drug Enforcement Administration’s (DEA) immediate suspension order and Drug Enforcement Administration (DEA) pulls controlled substance licenses from two Sanford, Florida, CVS pharmacies.

If the largest, legitimate pharmacy chains in the state and nation are not allowed to fill these prescriptions, where will chronic-pain patients turn? Are these actions driving our citizens into the hands of shady pharmacies that have fewer safeguards and less accountability, such as online pharmacies? Are these actions driving our citizens to seek out illegal drug dealers and turn to illegal drugs to cope with their legitimate medical problems? That is just one opinion. Tell us yours below.

Contact Health Law Attorneys Experienced with Investigations of Nurses.


The attorneys of The Health Law Firm provide legal representation to nurses and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

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

Comments?

As a nurse, have you been contacted by these phony DEA agents? Please leave any thoughtful comments below.

Sources:

Pavuk, Amy. “DEA Warns of Prescription-Drug Scam.” Orlando Sentinel. (November 29,2012). From: http://www.orlandosentinel.com/news/local/breakingnews/os-dea-warns-scam-internet-20121128,0,5800536.story

Drug Enforcement Administration. “DEA Scam Alert – Extortion Scheme.” DEA. (November 28, 2012). From: http://www.justice.gov/dea/divisions/mia/2012/mia112812a.shtml

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

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Legal Responsibilities of Nurse Supervisors

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

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

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

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

I. Failure to Properly Supervise.

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

A. Special Duty Nurse.

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

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

B. Student Nurses. 

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

II. Unlicensed Assistive Personnel.

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

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

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

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

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

6. Accurately document the care provided.

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

III. Inadequate Staffing.

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


Nursing Law Manual.

This blog post came from The Florida Nursing Law Manual.

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

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

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

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

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.