Monday, April 30, 2012

Impact of a Criminal Charge on Florida Health Professional

Criminal charges against a health care professional can have serious consequences. This post will discuss the impact of a criminal charge on a Florida licensed health professional.
What is the Effect of a Plea of Nolo Contendere for a Florida Licensed Health Professional?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), a plea of nolo contendere is treated the same as a plea of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.

What Is the Effect of an Adjudication or Finding of Adjudication Withheld?

Pursuant to the general chapter of Florida Statutes applicable to all licensed health professionals (Chapter 456), an adjudication or finding of adjudication withheld (or "adjudication deferred" in some jurisdictions) is treated the same as a finding of guilty for all purposes. Additionally the chapter of Florida Statutes that governs each type of health professional usually contains similar provisions; sometimes this will be in the Florida Administrative Code (F.A.C.) Rules that have been adopted by the separate professional licensing board for that profession.
When must a Licensed Health Professional Report Guilty Pleas (Nolo Plea or Guilty Plea) and Convictions (Adjudication Withheld or Finding of Guilty) to the Florida Department of Health?

Any guilty plea (as defined above as a nolo plea or guilty plea) or any adjudication of guilt (as defined above as adjudication withheld or finding of guilty) of any crime must be reported by the health professional to his or her professional licensing board (or the Department of Health when there is no board) within thirty (30) days of the conviction or finding. Section 456.072(1)(x), Florida Statutes.

In Florida, all health professionals licensed or regulated under Chapter 456 of Florida Statutes, are required to report to their professional board (or the Florida Department of Health if there is no professional board in their profession) any convictions or findings of guilty of criminal offenses, in any jurisdiction.

Unfortunately, pursuant to Florida Statutes, a plea of nolo contendere must be reported just as a plea of guilty to an offense (a plea of not guilty does not need to be reported). A finding of guilty or a finding of adjudication withheld (also called a "withhold" or "deferred adjudication" in some jurisdictions) must also be reported (a finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

Licensed practitioners who also are required to have a profile with the Department of Health (e.g., physicians licensed under Chapters 458, 459, 460 or 461), must submit an update to their profile, including criminal convictions, within fifteen (15) days of the "final activity that renders such information a fact." Section 456.042, Florida Statutes. For example, a doctor of medicine (M.D.), licensed pursuant to chapter 458, Florida Statutes, must submit an update to the physician's profile within fifteen (15) days. A registered respiratory therapist, on the other hand, doesn't have a profile. The registered respiratory therapist would have to report a matter qualifying with the above within thirty (30) days to his or her board, the Board of Respiratory Care. (A finding of not guilty, a dismissal, a nolle prosequi, pretrial diversion or pretrial intervention program in almost all cases dose not have to be reported).

As with any such important legal matter, we recommend reporting in a typed, professional letter, via a reliable method of delivery which provides tracking and delivers you a receipt. We do not consider e-mail to be reliable or susceptible of verification or tracking. We usually recommend reporting such matters via U.S. Express Mail, with a return receipt requested. Be sure to keep copies of the correspondence, the receipt of mailing and the return receipt, to document reporting and delivery dates, and to prove receipt.

Always consult the latest versions of the Florida Statutes and the Rules of the Department of Health and your professional board to make sure you have the correct information. We recommend retaining a health attorney familiar with the Department of Health and its regulatory processes, as such a report will usually require the Department of Health to commence an investigation of the health professional, even if the health professional is located in another state.
Which Crimes May Result in an Automatic Bar to Licensure?

Senate Bill 1984, effective July 1, 2009, amended various section of Florida Statutes, including sections of Chapter 456. These amendments prohibit the Department of Health from granting a new license to or granting the renewal of a license to a health professional because of a guilty plea or conviction of certain offenses. This is also grounds for revocation of the health professional's license. Generally, as set forth in Section 456.0635(2)(a), Florida Statutes these are: Being convicted of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a felony under:
    • Chapter 409 (the Medicaid Program)
    • Chapter 817 (Fraud)
    • Chapter 893 (Drugs)
    • 21 U.S.C. Sects. 801-970 (Food and Drugs); or
    • 42 U.S.C. Sects. 1395-1396 (Medicare, Medicaid, and Social Security)
unless the sentence and any subsequent period of probation for such conviction or pleas ended more than 15 years prior to the date of the application. (Sect. 456.0635(2)(a), Fla. Stat.) Additionally, grounds for discipline against the existing license of health professional includes:
    • Any misdemeanor or felony relating to Medicaid fraud: "Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, under 18 U.S.C. Sect. 669, Sects. 285-287, Sect. 371, Sect. 1001, Sect. 1035, Sect. 1341, Sect. 1343, Sect. 1347, Sect. 1349, or Sect. 1518, or 42 U.S.C. Sects. 1320a-7b, relating to the Medicaid program." (Sect. 456.072(1)(ii), Fla. Stat.
    • Being convicted of, or entering a plea of guilty or nolo contendere to, any misdemeanor or felony, regardless of adjudication, a crime in any jurisdiction which relates to health care fraud. (Sect. 456.072(1)(ll), Fla. Stat.
Defense Strategies and Avoidances
    • Plead to some offense or offenses other than the ones listed above.
    • Avoid a felony conviction; misdemeanors do not prohibit licensure or renewal, but may result in disciplinary action.
    • Avoid any offenses that sound like "health fraud," "Medicaid fraud" or "Medicare fraud."
    • Violations of other states' laws don't count; just Florida's and federal listed above (caveat).
    • Attempt to obtain pre-trial diversion, pre-trial intervention or drug court.
    • Attempt to avoid having to enter a guilty plea or nolo plea.
    • Attempt to include in settlement agreement/plea bargain agreement/stipulation that client may apply to have record sealed immediately upon completion of requirements and State will not object.
    • Advise client to immediately apply for sealing of record when all requirements of probation are met.
    • Obtain input from a board certified health lawyer or other "expert" as to the disproportionate effect (all of the collateral consequences) that a "conviction" may have on the licensed health professional.
What Are the Collateral Effects of "Conviction" of above Offenses?
  1. A case involving an arrest or a conviction involving alcohol abuse (DUI/public Intoxication) or drugs (possession, diversion, theft, trafficking) will probably result in an emergency suspension order (ESO) until entire licensure case is complete.
  2. Client may be required to be evaluated and probably enrolled in the Impaired Nurses Program (IPN) (for nurses only) or the Professionals Resource Network (PRN) (for all other licensed health professionals), which is usually at least a five year contract.
  3. Action to revoke, suspend or take other action against the clinical privileges and medical staff membership of those licensed health professionals who may have such in a hospital, ambulatory surgical center, skilled nursing facility, or staff model HMO or clinic. This will usually be physicians, physician assistants (PAs), advance registered nurse practitioners (ARNPs), certified registered nurse anesthetists (CRNAs), podiatrists, clinical psychologists and clinical pharmacists.
  4. Mandatory report to the National Practitioner Data Base (NPDB) (Note: Healthcare Integrity and Protection Data Bank or HIPDB recently folded into NPDB) which remains there for 50 years.
  5. Must be reported to and included in the DOH profile that is available to the public online (for those having one), and remains for at least ten years.
  6. Any other states or jurisdictions in which the client has a license will also initiate action against him or her in that jurisdiction. (Note: I have had two clients who had licenses in seven other states).
  7. The OIG of HHS will take action to exclude the provider from the Medicare Program. If this occurs (and most of these offense require mandatory exclusion) the provider will be placed on the List of Excluded Individuals and Entities (LEIE) maintained by the HHS OIG.
  8. If the above occurs, the provider is also automatically "debarred" or prohibited from participating in any capacity in any federal contracting and is placed on the U.S. General Services Administration's (GSA's) debarment list.
  9. The U.S. Drug Enforcement Administration (DEA) will act to revoke the professional's DEA registration if he or she has one.
  10. The certified health professional's certify organization will act to revoke his or her certification.
  11. Third party payors (health insurance companies, HMOs, etc.) will terminate the professional's contract or panel membership with that organization.
  12. Any profile maintained by a national organization or federation (e.g., American Medical Association physician profile or Federation of State Boards of Physical Therapy profile) will include the conviction.
  13. Regardless of any of the above, any facility licensed by AHCA (hospitals, skilled nursing facilities (SNFs), public health clinics, public health clinics, group homes for the developmentally disabled, etc.) that are required to perform background screenings on their employees will result in AHCA notifying the facility and the professional that he or she is disqualified from employment.
 For further information, visit our website at

Friday, April 27, 2012

The 25 Biggest Mistakes Doctors Make After Being Notified of a Department of Health Complaint

The investigation of a complaint which could lead to the revocation of a physician's license to practice medicine and the assessment of tens of thousands of dollars in fines, usually starts with a simple letter from the Department of Health (DOH). This is a very serious legal matter and it should be treated as such by the physician who receives it. Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over, and they have attempted to represent themselves throughout the case. Often, the mistakes that have been made severely compromise an attorney's ability to achieve a favorable result for the physician.

These are the 25 biggest mistakes we see in the physician cases we are called upon to defend after a DOH investigation has been initiated:
  1. Failing to keep a current, valid address on file with the DOH (as required by law), which may seriously delay the receipt of the Uniform Complaint (notice of investigation), letters, and other important correspondence related to the investigation.
  2. Contacting the DOH investigator and providing him/her an oral statement or oral interview. (Note: There is no legal requirement to do this.)
  3. Making a written statement in response to the "invitation" extended by the DOH investigator to do so. (Note: There is no legal requirement to do this.)
  4. Failing to carefully review the complaint to make sure it has been sent to the correct physician (Note: Check name and license number).
  5. Failing to ascertain whether or not the investigation is on the "Fast Track" which may then result in an emergency suspension order (ESO) suspending the physician's license until all proceedings are concluded. (Note: This will usually be the case if there are allegations regarding drug abuse, alcohol abuse, sexual contact with a patient, mental health issues, or failure to comply with PRN instructions.)
  6. Providing a copy of the physician's curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so. (Note: There is no legal requirement to do this.
  7. Believing that if they "just explain it," the investigation will be closed and the case dropped.
  8. Failing to submit a timely objection to a DOH subpoena when there are valid grounds to do so.
  9. Failing to forward a complete copy of the patient medical record when subpoenaed by the DOH investigator as part of the investigation, when no objection is going to be filed.
  10. Delegating the task of providing a complete copy of the patient medical record to office staff, resulting in an incomplete or partial copy being provided.
  11. Failing to keep an exact copy of any medical records, documents, letters or statements provided to the investigator.
  12. Believing that the investigator has knowledge or experience in hospital procedures, medical procedures or the health care matters or procedures being investigated.
  13. Believing that the investigator is merely attempting to ascertain the truth of the matter and this will result in the matter being dismissed.
  14. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.
  15. Talking to DOH investigators, staff or attorneys, in the mistaken belief that they are capable of doing so without providing information that can and will be used against them.
  16. Believing that because they haven't heard anything for six months or more the matter has "gone away." The matter does not ever just go away.
  17. Failing to submit a written request to the investigator at the beginning of the investigation for a copy of the complete investigation report and file and then following up with additional requests until it is received.
  18. Failing to wisely use the time while the investigation is proceeding to interview witnesses, obtain witness statements, conduct research, obtain experts, and perform other tasks that may assist defending the case.
  19. Failing to exercise the right of submitting documents, statements, and expert opinions to rebut the findings made in the investigation report before the case is submitted to the Probable Cause Panel of your licensing board for a decision.
  20. Taking legal advice from their colleagues regarding what they should do (or not do) in defending themselves in the investigation.
  21. Retaining "consultants" or other non-lawyer personnel to represent them.
  22. Believing that the case is indefensible so there is no reason to even try to have it dismissed by the Probable Cause Panel.
  23. Attempting to defend themselves.
  24. Believing that because they know someone on the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.
  25. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them, to communicate with the DOH investigator for them, and to prepare and submit materials to the Probable Cause Panel.
Bonus Point: 26. Communicating with the Department of Health about the pending case.

Not every case will require submission of materials to the Probable Cause Panel after the investigation is received and reviewed. There will be a few where the allegations made are not "legally sufficient" and do not constitute an offense for which the physician may be disciplined.

In other cases, an experienced health care attorney may be successful in obtaining a commitment from the DOH attorney to recommend a dismissal to the Probable Cause Panel. In other cases (usually the most serious ones), for tactical reasons, the experienced health care attorney may recommend that you waive your right to have the case submitted to the Probable Cause Panel and that you proceed directly to an administrative hearing. The key to a successful outcome in all of these cases is to obtain the assistance of a health care lawyer who is experienced in appearing before the Board of Medicine in such cases and does so on a regular basis.

For more information regarding DOH investigations or other legal matters visit our website at

Wednesday, April 25, 2012

Novitas Becomes Medicare Administrative Carrier for Jurisdiction 12

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

Diversified Service Options (DSO) acquired Highmark Medicare Services (Highmark) on January 1, 2012. DSO is a holding company and a wholly-owned subsidiary of Blue Cross and Blue Shield of Florida, Inc. (BCBS Florida). Highmark had the contract with the Centers for Medicare & Medicaid Services (CMS) to be the Medicare Administrative Contractor (MAC), formerly known as a "Carrier" or "Fiscal Intermediary," for Jurisdiction 12, which includes Delaware, New Jersey, Pennsylvania, Maryland and Washington, D.C. For Part B services, Jurisdiction 12 also includes the counties of Arlington and Fairfax in Virginia and the city of Alexandria in Virginia.

As of March 1, 2012, Highmark changed its name to Novitas Solutions, Inc. (Novitas). Novitas has now assumed the duties of Highmark as the Part A and B Medicare Administrative Contractor (MAC) for Jurisdiction 12.

Additionally, Novitas will now serve as the Part A and B MAC for Jurisdiction H, which includes Arkansas, Colorado, Louisiana, Mississippi, New Mexico, Oklahoma, Texas and the Indian Health Service (IHS).

First Coast Service Options, Inc. (First Coast), is also a wholly-owned subsidiary of Blue Cross and Blue Shield of Florida, Inc. First Coast is the current MAC for Jurisdiction 9, which includes Florida. Although plans for a merger between First Coast and Novitas are not known at this time, it is speculated that such an arrangement may occur in the future.

Sources Include:
Blue Cross Blue Shield of Florida, Inc. Press Release, "Diversified Service Options of Florida to Acquire Highmark Medicare Services:  Will Expand Medicare Operations" (Dec. 8, 2011).

Healthcare Data Management, "What Happened to Highmark Medicare Services?"  (Mar. 16, 2012).  From:
Novitas Solutions, Inc. Press Release, "Highmark Medicare Services Inc. Changes Name to Novitas Solutions, Inc." (Apr. 10, 2012). From:

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.  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Monday, April 23, 2012

"Cert Audits" Added to Medicare Audit Contractor Alphabet

The Medicare Comprehensive Error Rate Testing program audit or CERT audit is one of the newest acronyms we have encountered in the Medicare Program's audit process. It could be that we just haven't had clients who had problems with this in the past, as we have seen plenty of Zone Program Integrity Contractor (ZPIC) audits, Medicare Administrative Contractor (MAC) audits and actions, Medicaid Fraud Control Unit (MFCU) audits, etc. However, we did have a client recently who was being audited by a CERT contractor and we assisted in resolving document discrepancies.

The Centers for Medicare & Medicaid Services (CMS) created the Comprehensive Error Rate Testing (CERT) program to measure the paid claims error rate for Medicare claims submitted to Medicare administrative contractors, carriers, durable medical equipment regional carriers, and fiscal intermediaries (now Medicare Administrative Contractors or MACs) . CMS receives in excess of two billion claims annually. The CERT program randomly selects approximately 120,000 of these claims for review to determine whether the claims were properly paid.

Statistical samples are selected and the CERT documentation contractor (CDC) submits documentation requests to those providers who submitted affected claims. Once the requested documentation has been received, the information is forwarded to the "CERT review contractor" (or CRC) for review. The CRC will review the claims and supporting documentation to measure compliance with Medicare coverage, coding and billing rules.

As with many audits, it seems like the most common problems being detected have to do with medical records errors, such as the documentation not supporting the code billed, absence of signatures on medical record entries, wrong dates of service, absence of medical record documentation, illegible records, wrong provider being billed for, etc.

We have been pleasantly surprised, however, when our personal phone calls to CDC and the CRC have been answered and actual accurate information provided, as well as letters and documents we provided being promptly acknowledged. Like with any other audit, however, we urge those being audited to seek the advice of an experienced health law attorney who may be able to assist in heading off and avoiding a more serious investigation or a large repayment demand eventually resulting.

For more info see:
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Wednesday, April 18, 2012

Differences Among a Home Health Agency, a Nurse Registry and a Homemaker and Companion Services Provider in Florida

The differences among a Home Health Agency, a Nurse Registry and a Homemaker and Companion Services Provider in Florida can be found in distinctions in the licensure requirements, the insurance requirements and the types of services that can be provided. The owners and operators of such businesses must should be aware of these. Diligence must be taken to ensure that employees of one type of provider do not deliver services to clients/patients that are not authorized by the company's license.

When applying for a license for any of these types of organizations, care must be taken to list all of the services that the organization will actually be delivering.

Home Health Agencies

Home Health Agencies (HHAs) are generally able to provide hands-on services to clients/patients. Among the services they may provide are:

Home Health Aide
Certified Nursing Assistant (CNA)
(Note: Some home health agencies only provide the above services.)
Nursing (LPN, RN)
Therapy: Physical (PT), Speech (ST), Occupational (OT)
Home Medical Equipment
Social Work
Dietetics & Nutrition
(Therapy, social work, dietetics & nutrition are generally not provided by licensed only HHAs, except for those that are in the process of getting certified for Medicare or Medicaid.)

Home Health Agencies are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-8, Florida Administrative Code (F.A.C.). The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).

Nurse Registries

Nurse Registries generally act as the intermediaries in locating and obtaining contracts between clients/patients and health providers such as nurses. Nurse Registries only have independent contractors.

Among the services that may be provided by the independent contractors of a Nurse Registry are:

Home Health Aide
Certified Nursing Assistant (CNA)
Nursing (LPN, RN)
(Note: Some Nurse Registries do not provide nurses)

Nurse Registries are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-18, Florida Administrative Code (F.A.C.). The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).

Homemaker and Companion Services Organizations

A Homemaker and Companion Services Organization may not provide any hands-on personal care or treatment of a client. For example, its employees may not bathe the client, changes bandages, or provide any hands on medical or nursing treatments

Among the services they are authorized to provide are:

Homemaker Services
Companion Services

Homemaker and Companion Services Organization are licensed and authorized pursuant to Chapter 400, Part III (Section 400.461), Florida Statutes, and Chapter 408, Part II, Florida Statutes, and are regulated pursuant to Chapter 59A-8, Florida Administrative Code (F.A.C.). (specifically 59A-8.025), F.A.C. The new licensing rules for them are located at Chapter 59A-35, Florida Administrative Code (F.A.C.).

All of the foregoing are licensed and regulated by the Home Care Unit of the Agency for Health Care Administration (AHCA) in Tallahassee. It can be located at:

Agency for Health Care Administration
Bureau of Long Term Care Services
Home Care Unit
2727 Mahan Drive - Mail Stop #34
Tallahassee, FL 32308
Phone: (850) 412-4403 Phone
Fax: (850) 922-5374 Fax

For more information regarding Florida home health agencies, nurse registries and homemaker and companion services providers, please visit our website at

Monday, April 16, 2012

Meyers Case Set the Standard for Later Court Cases Ruling Against Disruptive Physicians

One of the most important cases for physicians with hospital privileges to be aware of is Meyers v. Columbia/HCA Healthcare Corp., which was finally decided in 2003. In ruling on disruptive physician cases, courts almost always rely on Meyers, and it has been cited repeatedly in other disruptive physician cases to justify a hospital or medical staff's peer review actions disciplining the physician.

In this case, Dr. Meyers, an orthopedic surgeon, received provisional medical staff privileges at a hospital. A year later, the credentials committee at his hospital, comprised of three board members, re-evaluated Dr. Meyers for advancement to active staff privileges. He was denied active staff privileges by the committee for reasons that included his alleged temper tantrums, condescending remarks towards women, refusal to speak to a member of his surgical team during surgical procedures, and several instances of throwing a scalpel during surgical procedures.

Dr. Meyers was granted a hearing by the hospital. The hospital's bylaws provided for a fair hearing committee comprised of three members of the medical staff, who would have been Dr. Meyers' peers. However, the fair hearing committee in Dr. Meyers' case was different. It was comprised of a retired judge, an attorney, a bank president, an industrialist and a dentist. The fair hearing committee met eleven times and 35 witnesses testified during the course of the hearing. After the hearing, the fair hearing committee recommended not appointing Dr. Meyers. It cited his failure to meet the hospital's ethical standards, as well as his inability to work cooperatively with others. This recommendation was adopted by the hospital's governing board.

Dr. Meyers sued the hospital and the fair hearing participants. His claims included breach of contract, antitrust, violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), tortious interference, and defamation.

The hospital moved for a summary judgment, claiming immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), which provides immunity if a professional review action is taken under a combination of four circumstances: (1) in the reasonable belief that the action would further quality healthcare; (2) after a reasonable investigation; (3) with adequate notice and hearing procedures; and (4) the reasonable belief that the action was warranted by the facts and the process.

The trial court granted summary judgment in favor of the hospital and the hearing panel's members. The court's analysis of the summary judgment standard in the Meyers case for HCQIA has been relied upon regularly since this. Meyers indicated that the professional review actions that were followed satisfied the HCQIA's immunity requirements. The district court's action was later affirmed on appeal by the Sixth Circuit.

Because of Meyers, physicians have a much higher standard to overcome, in order to get a similar case before a jury. The physician must demonstrate 1) that a genuine issue of fact exists and 2) that a reasonable jury, viewing the facts in the best light for the plaintiff, might conclude that he has shown by a preponderance of the evidence that the actions of the hospital and committee are outside the scope of HCQIA.

In both Meyers and in subsequent cases, physicians have attempted to challenge this summary judgment standard by various legal arguments. One used is that the action taken against the physician was not "fair" because the hearing committee did not include a physician of the same specialty. Another is that the hearing panel did not include a physician, a "peer." Therefore how could it truly be "peer review."

In Meyers, both the Sixth Circuit and the district court looked to the hospital's medical staff bylaws which stated that medical staff members (other physicians) would be appointed to the fair hearing committee only "when feasible." The hospital presented evidence that no medical staff member could serve on the committee at the time when the hearing was scheduled in Dr. Meyers' case. Furthermore, the district court stated that the bylaws of a hospital concerning peer review actions are inconsequential, as long as the HCQIA's fair hearing requirements are met. In the HCQIA, there is no requirement that a physician must serve on a fair hearing committee.

Meyers also provided grounds for justifying professional review actions based a physician's "general behavior and ethical conduct." Disruptive behavior is also enough to justify suspension or termination of privileges, because, according to the district court, "Quality patient care demands that doctors possess at least a reasonable ability to work with others."

Although the Meyers case has been the precedent for disruptive physician cases since 2003, physicians must also be aware of The Joint Commission's standard on disruptive behavior, issued in 2008. This standard affirms that disruptive behavior is enough to justify a hospital's action against a physician, including termination. Physicians can now expect to see even more actions initiated by hospitals and their staffs against any physician deemed uncooperative or disruptive. You can read The Joint Commission's sentinel alert on disruptive behavior here.

If you find yourself at the center of a peer review hearing due to reasons of disruptive behavior, make sure that you contact an experienced healthcare attorney to help you navigate the peer review process. Visit our website at for more information.

Friday, April 13, 2012

Medicare Prohibits Waiver of Co-pays and Deductibles; Professional Courtesy Deemed 'Unlawful'

The heavily regulated health care environment of today makes it difficult to practice the time-honored tradition of professional courtesy. Professional courtesy originally referred to the provision of health care to physician colleagues or their families free of charge or at a reduced rate. Many argue, rightfully so, that the Hippocratic Oath even requires this for the patient who is a physician and his or her family. More recently the scope of professional courtesy has been extended to include patients who may face financial hardship, and physicians commonly forgive or waive co-payments to facilitate patient access to necessary medical care.

Because of the government's aggressive approach to ensure that all claims are billed correctly, the once common practice of professional courtesy is now considered illegal. According to the Department of Health and Human Services (HHS), Office of Inspector General (OIG), "It is unlawful to routinely waive co-payments, deductibles, coinsurances or other patient responsibility payments." (67 Fed. Reg. 72,896 (Dec. 9, 2002)). This applies to health care and services paid by Medicare, TRICARE/CHAMPUS, and any other program paid partially or in full with federal funds. It also includes professional courtesy, as well as "take what insurance pays" (TWIP) policies.

Although we know of no prior instance of the OIG or Department of Justice prosecuting a physician’s extension of professional courtesy, arrangements for free or discounted care implicate fraud and abuse laws, including the Federal False Claims Act, and the Federal Anti-Kickback Statute. There have also been private insurance fraud actions based on illegally waiving co-pays and providing discounts that were not extended to the insurer, as well as Federal actions for these violations and using waivers and discounts to induce Medicare patients to use other health care services.

Physicians must be extra cautious in bestowing professional courtesy, including discounts and waivers, so that they are not punished for genuinely good deeds. While there may be situations where it is defensible to not charge for services to health care professionals, the physician should assure that this professional courtesy is not linked to referrals, either in reality or in appearance.

Waiving Co-Pays
Some physicians commonly reduce the cost of care for patients by waiving the co-pay. However, waiving a co-payment has been interpreted as a fraudulent misrepresentation of physician charges against all types of payers. For example, under traditional Medicare, physicians are paid eighty percent (80%) of the "allowable amount" or the "actual charge," whichever is less. In the instance where Medicare allows $100, the program pays $80 and the co-payment amount is $20. By the physician accepting "what insurance pays" as the only payment, this is viewed as the physician's having an actual charge of $80, so the resulting payment from Medicare should be only $64. Therefore, by Medicare's rules. the physician has overcharged Medicare.

In the health care industry, a discount is a reduction in the normal charge based on a specific amount of money or a percentage of the charge. To comply with government and insurance policies, the discount must apply to the total bill, not just the part that is paid by the patient. For example, if a patient owes a 20% co-pay on a $25 charge ($5) and the physician applies a discount of $5, then the patient must pay $4 and the insurance company will pay $16.
In addition, private insurance plans and some federal programs have a "most favored nation" clause in their contracts with physicians. This entitles the plan to pay the lowest charge the physician bills to anyone. Any pattern of discounts could result in a reduction in the physician’s allowable reimbursement schedule to the discounted amount.

"Kickbacks" and Inducements to Refer Patients
The federal government and some states have specific laws governing financial transactions between health care providers, including the Medicare Fraud and Abuse laws and the Stark I and Stark II. These laws prohibit any incentives that influence physicians to refer patients. For example, a physician who only extended professional courtesy to other health care providers who referred him or her patients would violate the law.

These laws have been interpreted very broadly by the courts. Any payment or inducement that might have a tendency to affect referral decisions is prohibited, even if it has other valid purposes. Professional courtesy based on being on the same hospital staff would raise the same issues, although the link to referrals is more tenuous. Giving professional courtesy to all physicians without conditions would be more defensible, but if the government could show that a disproportionate number of physicians receiving the courtesy were also referring physicians, the court would probably rule that this was a prohibited inducement.

In the past, if physicians violated the terms of their contracts with private insurers, the insurer could refuse to pay the claim and/or deselect the physician from the plan. The insurer could also sue the physician for fraud. However, under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)\ it is now a federal crime to defraud private insurance companies. Violations can result in fines and criminal prosecution.

The federal government can also refuse to pay the claim and can ban the physician from participation in Medicare and Medicaid. In addition, when the physician files a claim for services that were provided in ways that violate the federal regulations, that claim violates the False Claims Act (FCA). Violations of the FCA are punishable by a $5000 per claim fine and imprisonment.

For more information on waiving co-pays and deductibles, health care discounts, professional courtesy and other billing issues, please visit our website at

Monday, April 9, 2012

Florida Pain Clinics Continue to be Targeted by Law Enforcement

Pain clinics in Florida began to feel the pressure of becoming law enforcement's newest target about one year ago. This was based in part on televison "magazine" shows and investigative reporters' shows and articles publicizing many abuses by patients who were "doctor shopping" and physicians who were allegedly "over-prescribing."

More regulations were enacted. Lawmakers began to approve severe penalties for doctors accused of over-prescribing, including prison sentences. Most physicians were banned from dispensing drugs in their offices. A Florida drug "strike team" was created whose mission was to eliminate any pain clinics that were found to be suspicious. The Florida Surgeon General and the Board of Medicine made announcements about the "crackdown" on "over-prescribing."

Since the implementation of the new pain management and prescribing laws, the Florida strike force has made thousands of arrests and seized millions of pills in an effort to curb alleged over-prescribing and prescription drug abuse, according to the Orlando Sentinel.

After a year of strict regulations and punishments for Florida's pain management physicians, pain clinics, pharmacists and pharmacies, the state is continuing to attack the pain management profession. While the planned measures aren't as harsh as those that began a year ago, such as installing prescription drop boxes at police stations, they continue to place a stigma on the practice of pain management - a medical subspecialty with the purpose of alleviating the pain of suffering patients.

In addition, patients with true medical need for prescription pain medications are finding it increasingly difficult to even locate a physician to treat them, given the stigma and the possibility of arrest and prosecution. Medical ethicists have commented on this problem, an issue that will become increasingly problematic for the foreseeable future.

If you work in the pain management industry (physician, pharmacist, pain clinic, pharmacy, etc.) and feel that your medical license, pharmacy license, or business is at risk or is under investigation by the Drug Enforcement Administration (DEA) or Florida Department of Health (DOH), please visit our website at for more information about this.