Is It Legal to Require a Flu Shot for Health Professionals?

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

The warnings have been loud and clear from the Centers for Disease Control and Prevention (CDC). This influenza season is off to an early and serious start. With that in mind, a number of states are requiring all health professionals in the state to receive the flu vaccination. Some of those opposed to getting vaccinated are being fired by hospitals and health facilities. Because of this, a controversy is arising between employee rights and patient safety, according to a number of news sources.

Click here to read more on this year’s flu season from the CDC.


Hospitals Want to Keep Patients Safe and Healthy.
In December 2010, the Department of Health and Human Services (DHHS) announced a 10-year agenda to improve the nation’s health. It’s called Healthy People 2020. A part of this agenda calls for a ninety percent (90%) average vaccination rate of health professionals. Click here to read the press release on the Healthy People 2020 initiative from the DHHS.

According to an American Medical News article, there’s a push in the medical community to meet this goal as soon as possible. The CDC states that as of November 18, 2011, close to eighty-four percent (84%) of doctors in the U.S. had been immunized against influenza. The CDC is praising these doctors for this high number, hoping other health professionals and the public will follow suit.

The safety of patients is the chief reason for the mandate. In an ABC News article, one Indiana hospital said that it implemented the mandatory vaccine in September of 2012, to promote patient safety. Of the hospital’s 26,000 employees statewide, ninety-five percent (95%) have complied.


Some Employees Fired for Refusing to Get a Flu Shot.
A large majority of employees at the Indiana hospital complied with the mandate; however, 1,300 employees did not. According to ABC News, eight employees, including at least three veteran nurses, were allegedly fired because they refused to get a flu vaccine.

The fired nurses are standing their ground, saying they should have the right to refuse the flu vaccine. One nurse had filed two medical exemption requests, a religious exemption request and two appeals. All were denied by the hospital. To read more on this story from ABC News, click here.

In October 2012, Rhode Island mandated immunizations for all health care workers who have patient contact. On December 6, 2012, a health care worker union filed a federal lawsuit against the Rhode Island Department of Health (DOH) to prevent it from implementing the regulations, according to a Fierce Healthcare article. Click here to read the entire Fierce Healthcare article.


How Groups are Fighting Back.

The attorney representing the Indiana nurses, who were fired, states that his clients had the right to refuse their flu shots. He argues Title VII of the Civil Rights Act of 1964 prohibits religious discrimination against employees. The attorney is suggesting religion is legally broad under the First Amendment, so it can include any strongly held belief. According to a Chicago Tribune article, in 2009 New York mandated flu shots for all health workers, during the H1N1 outbreak. Unions fought the issue in court, and the state has since relaxed the rule.


Flu Shots in Florida.
I’ve recently received calls from several local health care professionals working in different Florida hospitals, regarding refusing flu shots and other vaccinations. I’ve also read the news stories about Tampa General Hospital and Moffitt Cancer Center in Tampa requiring employees to receive the influenza vaccine. According to the news articles, the two Tampa health facilities require employees who refuse the flu shot to wear surgical masks.

However, the states and hospitals may not back down in this case. The issue may have to be decided by the courts. I promise to write more on this topic later.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.
At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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


What Do You Think?
What do you think of mandated flu shots for health care workers? Is receiving a flu shot mandatory at your job? As a health care professional, do you think it is important to receive a flu shot? Is there enough medical evidence to justify firing health care professionals for not receiving the flu shot? Please leave any thoughtful comments below.


Sources:
Lupkin, Sydney. “Nurses Fire for Refusing Flu Shot.” ABC News. (January 3, 2013). From: http://abcnews.go.com/Health/indiana-hospital-fires-nurses-refusing-flu-shot/story?id=18116967
Moyer, Christine. “More Physicians on Track to get Flu Shots.” American Medical News. (December 14, 2012). From: http://www.ama-assn.org/amednews/2012/12/10/hlsb1214.htm
Cheung-Larivee, Karen. “Health Unions Sue Over Mandated Flu Shots.” Fierce Healthcare. (December 10, 2012). From: http://www.fiercehealthcare.com/story/health-unions-sue-over-mandated-flu-shots/2012-12-10


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

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

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

Part 2 - Burden of Proof in Professional Licensing Disciplinary Cases

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH)  in professional licensing disciplinary cases.  This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else.  It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida.  However, since we routinely represent health professionals, I will continue to concentrate on those licenses by the state DOH in this blog.

Click here to read part one.


Fifth Amendment Protection Against Self-Incrimination Applies.
Because potential license revocation proceedings are penal in nature, a respondent or license holder in such an investigation or administrative hearing has the right to remain silent under the Fifth Amendment of the United States Constitution and under the Florida Constitution.
Otherwise, this would defeat the spirit and intent of the constitutional protections guaranteed by the Fifth and Fourteenth Amendments to the United State Constitution.  See, State v. Caballero, 396 So. 2d 1210, 1213 (Fla. 3d DCA 1981) ("A coerced confession offends due process of law.");  Dickerson v. U.S., 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000) ("We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily");  Chambers v. State of Fla., 309 U.S. 227, 228, 60 S. Ct. 472, 473 (1940) ("[U]se by a state of an improperly obtained confession may constitute a denial of due process of law as guaranteed in the Fourteenth Amendment");  and Barnes v. Merrill, 2002 WL 1313123 (D. Me. 2002) ("Involuntary statements are inadmissible under the Fifth Amendment requirement that no person can be compelled to be a witness against himself in a criminal case.").
For Florida cases on point, see, Chancellor Media Whiteco Outdoor v. Fla. Dep't of Transport., 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001), substitute opinion entered on rehearing, 795 So. 2d 991, 26 Fla. L. Weekly D1894 (Fla. 5th DCA July 30, 2001).  See also, State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So.2d 487, 491 (Fla. 1973);  Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993) ("We agree that requiring Kassover to answer . . . questions does violate his right against self-incrimination which applies not only to criminal matters but also administrative proceedings such as licensing").


Florida Courts Require Higher Standard for Administrative Licensure Cases.
In Florida, the courts have adopted and have required the “clear and convincing” standard to be used in any case involving a professional license, finding that such action by the state is punitive or penal in nature and affects a substantial right of the respondent.  The key Florida cases that discuss this are two Florida Supreme Court cases, Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).  See also, Kozerowitz v. Fla. Real Estate Comm'n, 289 So. 2d 391 (Fla. 1974).

Any case in which a state administrative agency seeks a penalty, a fine or action affecting the status of a professional license, would require the application of a "clear and convincing standard."  An action to revoke a professional license is definitely considered to be penal.  So too is an action which results in the loss of income, such as by suspending a license (so there is no professional income), a fine, or an order to refund professional fees.  McDonald v. Dep't of Prof. Reg., Bd. of Pilot Commissioners, 582 So. 2d 660 (1st DCA 1991).

Although these are all Florida cases, if you read them and follow their rationale, they go back to basic constitutional principles of due process of law and the taking away of rights or property without due process.
For example, in one case in which I defended a nursing home's license, the state had evidence that contradicted itself.  There were certain facts at issue and the state put forth two different sets of facts.  The state could not prove either set of facts by "clear and convincing evidence."  Therefore, by law, the administrative law judge had to rule in favor of the license holder.


Penal Statutes, Such as Professional Discipline Statutes and Professional Practice Acts Must Be Narrowly Interpreted.
A statute is unconstitutionally void for vagueness if it fails to give a personal of ordinary intelligence fair notice of what conduct is forbidden by the Statute.  Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d  110 (1972).  United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, (1954).  Criminal statutes must be written with sufficient specificity so that citizens are given fair warning of the offending conduct, and law enforcement officers are prevented from engaging in arbitrary and erratic enforcement activity.  Papachristou; Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 59  S. Ct. 618, 83 L. Ed. 888 (1939). 

Florida case law has long upheld this principle of the common law as well.  Statutes must be written well enough so as to provide fair notice to ordinary citizens as to their exact meaning.  State v. Warren, 558 So. 2d 55 (Fla. 5th DCA 1990),  aff’d. Warren v. State 16 Fla., L. Week 28 (Fla. 1991).


When First Notified of a Pending Investigation Seek the Advice of an Experienced Health Law Attorney.
When you receive any notice, by telephone, by mail, by hand delivery or by information passed along by your employer, that an investigation has been opened against your professional license, immediately contact an attorney experienced in such matters.  Do not talk to the investigator.  Do not talk to the prosecuting attorney.  Do not call the state agency and ask for advice on what you should do. Do not send a written statement explaining your side of the story.

You have important constitutional rights that protect you.  But you have to exercise the common sense required to use these rights.  Part of this is by obtaining competent legal counsel who can advise you and protect your rights.  Again, we remind you that unless an attorney routinely handles this type of case, he or she may be unfamiliar with what your rights are in such a situation or how to handle it.


Contact Experienced Health Law Attorneys.
At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

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

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

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

Part 1 - Burden of Proof in Professional Licensing Disciplinary Cases

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

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases.  This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else.  It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida.  However, since we routinely represent health professionals, I will concentrate on those licenses by the state DOH in this blog.


Overview.
What few people (even attorneys) know is that cases which involve discipline against a professional's license are treated as "punitive" or "penal" cases.  This means the standards applied to them, at least in Florida, are the same that are applied to criminal cases.

Therefore, if the statute that is being charged is unclear or ambiguous, the courts apply a "strict scrutiny" standard.  If the language of the statute does not clearly prohibit the acts being charged or is unclear about being covered by the statute, then there should be a ruling in favor of the one charged.

Additionally, rights that apply in criminal cases, such as the right to have an attorney and the right to not be compelled to be a witness against oneself found in the Fifth Amendment of the U.S. Constitution, also apply to administrative cases involving discipline against a license holder.

The state has a higher burden of proof in an administrative licensure case, as well.  The burden of proof that applies in a civil case, "preponderance of the evidence" (also described as the greater weight of the evidence, the preponderance of the evidence or more than fifty percent), does not apply in administrative discipline cases.  Instead a higher burden, "clear and convincing evidence" applies.  Therefore, if the evidence supports the license holder's position, just as much as it supports the state's case, the state loses.


Know Your Constitutional Rights.

The Fifth Amendment of the United States Constitution provides individuals protection against self-incrimination, stating:

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

Note that in Florida, as in most states, a professional license is considered to be a property right which cannot be taken by the state without due process of law.
Article I, Section 9 of the Constitution of Florida also provides similar protections stating:

No person shall be deprived of life, liberty or property without due process of law . . . or be compelled in any criminal matter to be a witness against oneself.

In addition, case law in Florida has upheld as a protected right the individual's ability to practice a profession of choice if otherwise so qualified.  To take away this right requires due process of law and reviewing courts will apply a strict scrutiny standard.

Under some states’ constitutions or state statutes there is a right to work or a right to practice the profession of one’s choice;  this further lends credibility to an argument that agency actions which take away this substantial right should require a greater burden than that required in a mere civil case (i.e., preponderance of the evidence”).  However, even without such a provision in the state constitution, a professional license (or the right to practice a profession) is a substantial right and to take it away should require a higher burden of proof (e.g., clear and convincing).

Cases that are "Penal" Receive A Higher Degree of Protection.

The law is settled through U.S. Supreme Court cases that “penal statutes are to be construed strictly, Commissioner v. Acker, 361.U.S. 87, 80 S. Ct. 144, 4. L. Ed. 2d 127 (1959), Fed'l Comm. Comm’n v. Am.  Broadcasting Co., 347  U.S. 284, 296.  One “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362.  See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410;  Elliott v. RR Co., 99 U.S. 573, 576.

Penal statutes must be construed narrowly and are interpreted against the state.  Any part or term that is vague will not be enforced or will be stricken.  Warren v. State,  16 Fla. L. Week 1346 (Fla. 1991).  Accord, Riley v. Georgia,  219 Ga. 345, 133 S.E. 2d 367 (Ga. 1963);  State v. Morrison, 25 N.J. Super. 534, 96 A. 2d 723 (Essex Cty. Ct., N.J., 1953);  U.S. v. Ortiz, 24 M.J. 164 (CMA 1987), at 168.


Florida Courts Apply Criminal Law Rights and Protections to Cases Involving Administrative Penalties.

The Florida Supreme Court has affirmatively extended the proscription against self-incrimination to any administrative proceeding of a "penal" character.  This could be one in which the state seeks revocation or suspension of a license or one in which the state seeks a fine on a licensee.  Kozerowitz v. Fla. Real Estate Comm'n, 289 So. 2d 391 (Fla. 1974).
Any administrative proceeding in which the state seeks to inflict a penalty against the license or the licensee would invoke these rights.  An action to revoke a professional license is penal.  So, too, is an action which results in the loss of income or a fine.


Check Blog for More on the Burden of Proof.

Be sure to check our blog regularly to learn more on the burden of proof in administrative cases involving discipline of professional licenses. Part two of this blog series will be posted soon.


Contact The Health Law Firm. We are Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.
The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

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

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

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

Department of Justice Settles Lawsuit with Specialty Pharmacy in California

By Lance O. Leider, J.D., and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
The Department of Justice (DOJ) announced on December 27, 2012, that a specialty pharmacy, based in San Diego, California, has agreed to pay a $11.4 million settlement. That payment is to resolve allegations that the company used kickbacks to persuade doctors to write prescription for its products. The allegations came from a whistleblower lawsuit filed by a former employee.
Click here to read the press release from the DOJ.


Pharmacy Allegedly Used Expensive Kickbacks to Boost Business with Physicians.
An article in Modern Healthcare states that the specialty pharmacy allegedly used tickets to sporting events, concerts, plays, spa outings, golf games and ski trips to bribe physicians to write prescriptions for its products. The company also had representatives schedule paid “preceptorships,” where the reps would follow physicians in their offices in an attempt to increase prescriptions written for their products.
To read the Modern Healthcare article, click here.


How the Lawsuit was Settled.
The specialty pharmacy company agreed to a forfeiture of $1.4 million to resolve the anti-kickback statue allegations. It will also pay $9.9 million to resolve false claims allegations, according to the DOJ. Representatives with the DOJ said that by entering the deferred prosecution agreement the company was able to avoid criminal and civil liability for the kickback and false claims violations.


Former Employee Receives $1.7 Million for Filing Lawsuit.
According to the DOJ, the settlement resolves a False Claims Act lawsuit that was filed by a former sales representative for the specialty pharmacy. As part of the resolution, that whistleblower will receive $1.7 million.
Whistleblowers stand to gain substantial amounts, sometimes as much as thirty percent (30%), of the amount the government recovers under the False Claims Act (31 U.S.C. Sect. 3730). Such awards encourage employees and contractors to come forward and report fraud. You can learn more on the False Claims Act on the DOJ website.


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. 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.

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


What Do You Think?
What do you think of the settlement agreement? As a health professional are you tempted with kickbacks? Please leave any thoughtful comments below.


Sources:
Department of Justice. “Victory Pharma Inc. of San Diego Pays $11.4 Million to Resolve Kickback Allegations in Connection with Promotion of Its Drugs.” Department of Justice. (December 27, 2012). From: http://www.justice.gov/opa/pr/2012/December/12-civ-1547.html

Kutscher, Beth. “$11.4 Million Settlement in Pharma Kickback Case.” Modern Healthcare. (December 27, 2012). From: http://www.modernhealthcare.com/article/20121227/NEWS/312279957/


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

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

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

A Closer Look at the Three-Year Medical School Degree

By Danielle M. Murray, J.D., The Health Law Firm


To combat the nationwide shortage of primary care physicians and the increase in student debt, several medical schools around the country are offering the chance for students to finish school in three years, instead of four. According to a number of news articles, these programs are geared specifically toward medical students looking to practice primary care. The hope is that these programs will be cost less for students and add more primary care physicians to under-served areas.


Degrees Offered at Some Schools Around the U.S.
According to an article in The New York Times, a small number of students are currently participating in the three-year degree program. There are about 16 incoming students in the program at New York University (N.Y.U.), nine students at Texas Tech Health Science Center School of Medicine and an even smaller number are at the Mercer University School of Medicine campus in Georgia. In an interview in The New York Times, the dean at Texas Tech said if this approach works, the schools will open up the program to a larger number of students.
To read the entire New York Times article, click here.


Students on a Fast and Rigorous Schedule.
According to an article in American Medical News, the condensed medical school eliminates breaks and electives and allows students to begin clerkship training in their second year. This is a full year earlier than the traditional four-year curriculums. In the same article, medical experts warn these accelerated programs are not for everyone, saying it takes a mature person to go through rotations earlier and at a quicker pace.
Students are given a chance to opt out if they decide to pursue a different career path. The American Medical News article explains that at Mercer, students who decide that family medicine is not for them are integrated into the traditional four-year program.
Click here to read the article from American Medical News.


More Doctors, Less Debt.
This three-year program is expected to save a quarter of the cost of medical school, which is more than $49,000 a year in tuition and fees at N.Y.U., according to The New York Times. The money saved helps primary care physicians lessen their debt as they go to work in a lower paying field. This program is expected to attract more students to practice in fields such as pediatrics and internal medicine.
According to the Association of American Medical Colleges, the physician shortage is expected to reach 91,500 physicians by 2020. This program, as it grows, can help alleviate the shortage and bring more doctors to areas in need.


Contact a Health Care Attorney that is Experienced in the Representation of Medical Students, Interns, Residents and Applicants.
The Health Law Firm and its attorneys represent medical school students in disputes with their medical schools, internship supervisors, and in dismissal hearings. We have represented residents, interns and fellows in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation and on other matters.
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Comments?
What do you think of a three-year medical school degree for doctors? Do you think the fourth year of medical school is necessary for primary care physicians? Please leave any thoughtful comments below.


Sources:
Hartcocollis, Anemona. “N.Y.U. and Other Medical Schools Offer Shorter Course in Training, for Less Tuition.” The New York Times. (December 23, 2012). From: http://www.nytimes.com/2012/12/24/education/nyu-and-others-offer-shorter-courses-through-medical-school.html?pagewanted=all&_r=0
Krupa, Carolyne. “Med School on the Fast Track: A 3-Year Degree.” American Medical Association. (May 7, 2012). From: http://www.ama-assn.org/amednews/2012/05/07/prl20507.htm


About the Author: Danielle M. Murray is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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

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

Department of Health Licensees Have to Maintain Continuing Education Requirements

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

Those who are licensed by the Department of Health (DOH) must be sure they are maintaining their continuing education requirements by taking the required courses in a timely manner.  We have attended at least one professional board meeting recently where there was concern expressed about licensees failing to meet their continuing education requirements.  One estimate was that approximately sixty percent (60%) were deficient in one profession.

Failing to obtain the required courses during the time period set forth by statute and by board regulation can result in disciplinary action being taken against a licensee.  Disciplinary action in one state can lead to disciplinary action commenced against a license held in another state, if the licensee holds multiple licenses.

11 Problems We See Among Licensed Health Care Professionals Arising Out of Continuing Education:

1. Failure to take courses from a continuing education provider properly approved by the state board. When in doubt, ask, in writing.
2. Failure to take and complete all required courses and hours within the period of time established by the board.
3. Failure to take the exact subject matter courses required by law (such as HIV awareness, domestic violence, prevention of medical errors, etc.).
4. Failing to maintain documents proving that the provider took the courses (such as registration, payment receipt, course attendance certificate, etc.).
5. Failing to apply for or request an exemption from continuing education requirements at the time the grounds for them first arise (e.g. hardship, medical problems, not practicing).
6. Failing to respond to an audit of continuing education completion requirements (you will then be assumed to have not completed them and a DOH investigation will be opened).
7. Failing to respond in a succinct, organized manner, by letter, with proper documentation, sent to the correct address that auditor states, via certified mail, return receipt requested.
8. Assuming that the office manager, practice manager or administrative secretary is going to take care of such matters so you do not have to be concerned with them.
9. Arguing with or being demeaning to the auditor who requests information or who advises you that you are short of hours or courses.
10. Failing to immediately make up any missing hours or courses from prior periods, in addition to fully meeting all current continuing education requirements.
11. Failing to respond to citations, complaints or letters sent to you by the DOH regarding this matter.

Often consulting an experienced health law attorney on such matters can save a great deal of turmoil, mental anguish, cost and damage to your professional license and professional reputation.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.
At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


What Do You Think?
Are you guilty of failing to meet your continuing education requirements? Do you think the continuing education classes are worth the time invested in them? Please leave any thoughtful comments below.


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

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

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

Florida Pharmacy Owner Admits to Multi-Million Dollar Health Fraud Scheme

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

A co-owner and operator of three Miami-area pharmacies pleaded guilty on December 6, 2012, for his part in a $23 million health care fraud scheme. The pharmacy owner allegedly admitted in the Florida Southern Federal District Court to one count of conspiracy to commit health care fraud and one count of conspiracy to pay illegal health care kickbacks, according to a Department of Justice (DOJ) press release.
Click here to read the entire press release from the DOJ.


Owner and Co-Conspirators Allegedly Paid for Referrals.
According to court documents, the pharmacy owner allegedly admitted to paying illegal kickbacks to an unnamed number of co-conspirators in return for Medicare and Medicaid beneficiary information. That information was then used to submit fraudulent claims. A majority of the beneficiaries referred to the owner’s pharmacies reportedly resided at assisted living facilities (ALFs) in Miami.

The court documents state that the pharmacy owner also allegedly paid kickbacks to physicians in exchange for prescription referrals which were also billed to Medicare.


Pharmacy Owner Allegedly Submitted More Than $23 Million in False Claims.
As part of the scheme, the pharmacy owner allegedly instructed drivers working for his pharmacies to pick up unused medications from ALFs around Miami. The medications were then allegedly placed back into pill bottles. Unused and partially used medications were billed back to Medicare and Medicaid, according to court documents.
Click here to read the court documents on this case.

The pharmacy owner and his co-conspirators allegedly submitted more than $23 million in false and fraudulent claims to Medicare and Florida Medicaid programs.

Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.
The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.
For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.


Sound Off.
What do you think of this case? Is the Miami area just a hotbed for Medicare and Medicaid schemes? Please leave any thoughtful comment below.


Sources:
United States of America v. Jose Carlos Morales. Case Number 12-23374, Preliminary Injunction and Supporting Memorandum of Law. (September 14, 2012). From: http://www.thehealthlawfirm.com/uploads/USA%20v%20Morales.pdf
Department of Justice. “Pharmacy Owner Pleads Guilty in Miami for Role in $23 Million Health Care Fraud Scheme.”

Department of Justice . (December 6, 2012). From: http://www.justice.gov/opa/pr/2012/December/12-crm-1461.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.



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

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