FTC Again Addresses State Legislators to Reconsider the Impact of State Regulations on APRNs’ Scope of Practice

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

Two weeks ago, the Federal Trade Commission (FTC) submitted written comments on the competitive impact of a legislative proposal to modify the supervision requirements imposed on Advanced Practice Registered Nurses (APRNs), sometimes called Advanced Registered Nurse Practitioners (ARNPs), Advanced Nurse Practitioners (ANPs) or Advanced Practice Nurses (APNs). The proposal in West Virginia, would permit some APRNs, under limited conditions, to write prescriptions without a formal agreement with a supervising physician. The proposal would also place the regulation of certain APRNs under authority of the West Virginia Board of Medicine of Osteopathic Medicine.

The Second Time the FTC Has Made Comments.

In 2014, the FTC issued a paper titled, “Policy Perspectives: Competitions and the Regulation of Advanced Practice Registered Nurses,” in which it advocated for the expansion of APRN scope of practice. APRNs, also known as nurse practitioners, are registered nurses who have been both educated and received specialized training beyond the requirements for a registered nurse. The FTC’s paper in 2014, contended that expanding the scope of practice would create more competition, helping to control costs, improve quality, promote innovation and expand access to care.

To read more about the FTC’s paper in 2014, click here.

The FTC’s Involvement.

The FTC has repeatedly voiced its opinion and recognized “the critical importance of patient health and safety, and [] defer[s] to state legislators to determine the best balance of policy priorities and to define the appropriate scope of practice for APRNs and other health care providers.” However, the FTC cautioned that the modifications in the proposal “could benefit patients, as it would permit a route to independent prescribing, at least for some APRNs under certain conditions,” it still “raises significant competitive concerns.

Limitations on Health Practitioners Result in Antitrust Scrutiny as Artificial Restraint on Trade.

Such limitations on what different health care practitioners are allowed to do or prohibited form doing by state licensure boards has fallen under scrutiny by the antitrust regulators lately. Often regulators believe that restrictions on what capable, trained professionals are allowed to do is nothing but an artificial restraint on trade, where one professional that may have more clout is attempting to keep the other profession(s) off of its “turf.” This is especially true when there appears to be no other valid reason to do so.

In the light of antitrust suits being filed across the nation against boards of dentistry and other licensure boards, many state boards and regulatory authorities are “running scared.” In Florida, for example, the Board of Medicine, Board of Dentistry, Board of Nursing, Board of Physical Therapy and other professional licensing boards have recently received legal instruction on how to avoid such charges being made against them. Additionally legislation has recently passed in the Florida Legislature to allow Advance Registered Nurse Practitioners (ARNPs) in Florida to write prescriptions for controlled substances for the first time ever.

In Hill v Florida Department of Health, our attorneys won a rule challenge/non-rule policy case against the Florida State Department of Health over information it promulgated stating that nurses were prohibited form administering Botox. See Shelley Kay Hill, R.N. v. Department of Health, Board of Nursing, Fla. Div. Admin Hrng. Case No. 14-4511RU (Final Order dated Mar. 10, 2015). Click here to read more.

To read a prior blog that I wrote on FTC vs. North Carolina Board of Dental Examiners case, click here.

The Health Law Firm Attorneys Represent Clients in Restraint of Trade, Scope of Practice and Other Related Legal Matters.

The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We routinely provide advice and analysis of proposed business ventures that include the foregoing. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters. We prepare requests for OIG Advisory Opinions, CMS Advisory Opinions and Petitions for Declaratory Statements to state agencies. We also prepare detailed Legal Opinion Letters on complex health care business transactions for proposed business ventures, mergers acquisitions, financing, etc.

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

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

Source:

Lomax, Dionne. “FTC Again Urges Consideration of Competitive Impact on State Regulation of APRNs.” Health Law & Policy Matters – Mintz Leven. (February 17, 2016). Web.

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

KeyWords: Advanced Practice Registered Nurses (APRNs), Federal Trade Commission (FTC), scope of practice, Advanced Registered Nurse Practitioners (ARNPs), Advanced Nurse Practitioners (ANPs), Advanced Practice Nurses (APNs), Restraint of Trade, antitrust law, trade regulation, OIG Advisory Opinions, CMS Advisory Opinions, Petitions for Declaratory Statements to state agencies, health care lawyer, health law defense attorney, health law, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

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.

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.

Detroit Medical Center Agrees to Pay $42M to End Long-Running Antitrust Suit

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

A month before trial was set to begin, Detroit Medical Center (DMC) agreed to pay $42 million to end a nine-year antitrust class action lawsuit. The suit was brought by nurses accusing eight Detroit area hospitals of conspiring to keep their wages low, violating antitrust laws from 2002-2006. The DMC was the last remaining defendant in a 2006 class-action lawsuit before Chief U.S. District Judge Gerald Rosen. To read a blog I wrote on another health care antitrust case, click here.

A copy of the class action complaint that was filed in the U.S. District Court for the Eastern District of Michigan can be found here.


Last Man Standing.

The nurses have alleged the DMC and seven other Detroit area hospitals “participated in an unlawful conspiracy to depress wages for Registered Nurses and/or to unlawfully exchange wage information in violation of Section 1 of the Sherman Antitrust Act.” For more information on antitrust laws, visit the “Areas of Practice” page on our website. The seven other hospitals involved in the suit settled with the nurses for a combined $48 million. DMC is expected to pay $42 million into a combined settlement fund, bringing total compensation in the case to $90 million. To view the class settlement agreement in this case, click here.

“It’s Not What It Looks Like.”

DMC had planned to take the case to trial in a month, but instead veered off course and decided to settle instead. “The settlement is not an admission of liability but rather a business decision to bring the matter to a resolution. We remain committed to our nurses and value the hard work and dedication of all our hospital staff,” DMC counsel released in a statement defending their decision. For more information, visit their website by clicking here.

Comments?

Do you think the settlement amount of $42 million was fair? Have you ever experienced a situation where antitrust laws were broken? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced With Antitrust Laws and Trade Regulation.

The Health Law Firm has attorneys who practice in the area of antitrust law and trade regulation. We have defended a hospital in federal court against allegations of violations of the antitrust laws, we routinely provide advice and opinion letters on antitrust and trade regulation matters, we have represented plaintiffs in law suits alleging anticompetitive behavior and violations of state and federal antitrust laws.

The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters.

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

Sources:

Kang, Peter. “Detroit Hospital to Pay $42M to End Nurse Wage-Fixing Suit.” Law360. (September 11, 2015). From: http://www.law360.com/health/articles/702135?nl_pk=68a34a8e-1544-489d-9b84-bbd4587b4d64&utm_source=newsletter&utm_medium=email&utm_campaign=health

Cwiek, Sarah. “Detroit Medical center agrees to settle with nurses, end long-running antitrust lawsuit.” Michigan Radio. (September 14, 2015). From: http://michiganradio.org/post/detroit-medical-center-agrees-settle-nurses-end-long-running-antitrust-lawsuit#stream/0

Halcom, Chad. “DMC expects to settle nurse wage class-action lawsuit for $42 million.” Crain’s Detroit Business. (September 14, 2015). From:
http://www.crainsdetroit.com/article/20150914/NEWS/150919922/dmc-expects-to-settle-nurse-wage-class-action-lawsuit-for-42-million

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: Antitrust laws, violating antitrust laws, anticompetitive conduct, Sherman Act, price fixing, wage fixing, trade regulation law, Federal Trade Commission, FTC, Detroit Medical Center, DMC, Michigan Antitrust Reform Act, unfair competition laws, deceptive and unfair trade practices, restraints on trade or business, defense attorney, defense lawyer, health care law, health law attorney, wage dispute, wage settlement, settlement agreement, health care law, health law attorney

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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.

Is Your Smart Phone HIPAA Compliant?

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

Identity theft is at an all-time high, and the health care industry is at exceptional risk. It’s no mystery that a patient’s health file contains all the pertinent information required to successfully steal a person’s identity, including the “Big 3”; specifically, name, date of birth, and Social Security number.

Worse yet, with ever-increasing technological trends, hackers are capable of banking a quick buck before most of their victims even become aware they are vulnerable.

Technology is a Positive Thing.

Technology offers us the world at our fingertips. Smart phones and tablets are conveniently mobile and, therefore, constantly available to us for information obtaining, information storing, information sharing and other communicative purposes.

Furthermore, technology has provided us with ways in which our lives can be made easier and more manageable through various downloadable applications (apps). These apps provide us with ways to track weather, news, and even our fitness progress, as well as coupons accessible by a simple bar code scan, meditation for the stressful life, and even automatic on/off commands for light switches and dishwashers. Apps also offer hours of enjoyment to satiate our craving for entertainment, even in the “company” of others, without ever having to leave our home.

It’s no wonder that more and more employers, especially hospitals (where everything moves at a fast pace), are jumping on board with the convenience and efficiency that technology can bring to the workplace. Furthermore, by implementing a bring your own device (BYOD) policy (since most employees already have access to their own technological devices) employers can save a ton on not having to purchase the tools on their own.

In a survey conducted by Aruba Networks, Inc., an HP company, in 2012, it was found that a whopping 85% of health care facilities were already allowing staff to utilize personal technological devices in the workplace. What was once considered to be unprofessional, is now determined necessary in carrying out normal job responsibilities. Due to the life-or-death nature of health care, hospitals are relying on electronic devices for:

(a) urgency in decision-making;

(b) constant availability;

(c) immediate response; and

(d) more accurate data; to name a few.

BYOD takes this a step farther in making information readily available to any health care professional at any time from their personal device, avoiding the necessity to access a workplace device which is not portable.

But What Happens When Technology is Used Negatively?

Technology sounds wonderful.

However, we have essentially stored our entire lives (and in the instance of health care professionals, now our patients’ entire lives) on a mobile device. Mobile, as in it goes with us everywhere, and therefore, it’s always at risk. Furthermore, with the heightened adoption of BYOD, systems are at risk of malware attacks resulting from downloads from personal devices that have not engaged appropriate security measures.

Regardless of how the attack occurs (lost, stolen, or of the viral nature), health care providers are responsible for protecting the privacy of their patients per the federal Health Insurance Portability and Accountability Act (HIPAA).

A Tweet May Result in HIPAA Violation for One Florida Hospital.

Following an alleged fireworks incident that resulted in the amputation of an index finger for New York Giants defensive end Jason Pierre-Paul, a tweet surfaced from Adam Schefter, an ESPN NFL reporter. Schefter tweeted a picture of the Giants’ medical record which he allegedly acquired from Miami-based Jackson Health System, reportedly without the consent of Pierre-Paul. To read more on this case, click here.

Tweeting; another by-product of technology and the insurgence of social media platforms. It’s enticing to share intimate details of our every day lives, especially when they affect others; namely, celebrities. And our smart phones offer instant access to photographing, uploading, and sharing of this “juicy” information.

But while Schefter is not in violation of any laws, the Florida hospital very well may be. Fines for HIPAA violations can range anywhere from $100-$50,000 per violation with the imposition of a $1.5 million dollar cap per calendar year.

Is a photograph worth your career?

What Can You Do to Protect Your Device?

Some HIPAA violations via technology are clearly avoidable (i.e., not divulging photographs of patient records for tweeting). Others are somewhat less manageable unless you know how to safeguard yourself against a technological breach.

While HIPAA does not require encryption and other safeguards on mobile devices, many employers do. It is important to know what your specific hospital’s policies are regarding HIPAA compliance on your smart phone and/or tablet.

Additionally, here are some tips to keep you and/or your employees protected under HIPAA violations when utilizing your own mobile device:

(1) Use a password or other user authentication (many devices now allow the use of fingerprint identification to unlock the device);

(2) Install and enable encryption on your smart phone;

(3) Install and activate remote wiping and remote disabling (this will protect you in the event your smart phone or tablet is lost or stolen);

(4) Disable and do not install or use file sharing applications;

(5) Install and enable a firewall on your device;

(6) Install and enable security software (this should protect against malware attacks);

(7) Keep your security software up to date;

(8) Research mobile applications (apps) before downloading (never just assume an app is HIPAA compliant- even health related apps);

(9) Maintain physical control over your device at all times (it goes without saying that your device is at the least risk when it’s in your own hands);

(10) Use adequate security, including those listed above, to send or receive health information over public Wi-Fi networks; and

(11) Delete all stored health information before discarding, selling, donating or trading the mobile device!

If all else fails and you find yourself in the middle of an investigation for possible HIPAA violations, consult with an experienced health attorney right away. There can be civil fines as well as criminal charges imposed on you, in addition to action taken by your employer.

For more information on risk assessment for HIPAA violations, read our previous blog post here.

Comments?
Do you use your own mobile device for your workplace? Do you know if it’s HIPAA compliant? Please leave any thoughtful comments below.

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 healthcare 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, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Bowman, Dan. “Potential HIPAA Violation Could Land Hospital in Hot Water.” FierceHealthIT. 9 July 2015. Web. 8 Sept. 2015.

Cook, Stacy. “How to Maintain HIPAA Compliance With Mobile Devices: A Law Review Q&A.” Advisory.com. The Advisory Board Company, 27 June 2014. Web. 8 Sept. 2015.

“Growing Tech Trends: The Rise of BYOD in Hospitals.” Information Technology Blog. Information Technology Group, 29 Apr. 2015. Web. 8 Sept. 2015.

“How Can You Protect and Secure Health Information When Using a Mobile Device?” HealthIT.gov. n.d. Web. 8 Sept. 2015.

Kolbasuk McGee, Marianne. “Prison Term in HIPAA Violation Case: Are More Such Prosecutions on the Horizon?” InfoRisk Today. 20 Feb. 2015. Web. 8 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: HIPAA complaints, HIPAA violations, HIPAA attorney, mobile device, technology in healthcare, technology in the workplace, HIPAA privacy complaint investigation lawyer, breach of patient confidentiality, breach of medical privacy, OCR HIPAA investigation, HIPAA complaint defense, technology in hospitals, health attorney, defense attorney, The Health Law Firm, health law firm, electronic devices, Social Security number, technological breach, breach of patient information, safeguarding patient information, HIPAA compliance, smart phones in hospitals

“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.

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