Florida’s Prescription Drug Monitoring Program Not Being Used by Doctors

By Danielle M. Murray, J.D.
The Florida Prescription Drug Monitoring Program is apparently collecting dust as physicians are choosing not to use it. The Tampa Bay Times reported on October 5, 2012, that as few as one in twelve doctors have ever used the database. That is about eight percent (8%) of all physicians. Approximately fourteen percent (14%) of physicians are registered for the database.
Click here to read the entire story from the Tampa Bay Times.


Physicians Not Required to Use Database.
Physicians interviewed for the article said the problem is that database use is not mandatory. Physicians are not required to review the database prior to accepting a new patient, or prior to giving out a prescription.  Some physicians said they would ask the pharmacy or check the local arrest records if they had a suspicion that the patient was abusing drugs or "doctor shopping."
One potential reason that physicians may not check the database is simply that they don't want to know.  If they know a patient is abusing prescription drugs, then that patient has to be sent away, and that is a loss of business. Another reason could be some doctors may not know the database exists, and other doctors may simply be too busy to bother.


Database Succeeds in Other States.
The prescription drug database in Kentucky had a similar usage problem until the state made it mandatory for physicians to check the database.  A mandatory law in Ohio resulted in shock when physicians saw the reality of the large number of prescription drug abusers in their practices.
For the foreseeable future, using the database will not be mandatory for physicians. However, physicians should consider using the database, or otherwise remaining vigilant to avoid being labeled an overprescriber.
For legal tips for working with pain patients, click here.


Using the Database for Prosecution.
From my perspective, I have seen the database in Florida used mostly as a tool for prosecution of pain management physicians and pharmacists. Even in cases where the pharmacist has been the one to notify the authorities of suspected forged prescriptions and where the pharmacist has cooperated in prosecuting the criminals, I have seen this database cited as evidence against him or her. I do not believe this is what the legislation intended.


Contact an Experienced Health Law Attorney.
As a health care professional, you may one day be charged with overprescribing narcotics or even criminally charged in the death of a patient due to their drug habits. If you are contacted by the Department of Health (DOH) or the Drug Enforcement Administration (DEA), do not sign anything or make any statements to anyone. Call an experienced health law attorney to learn about your rights in such a case.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Comments?
As a physician, do you use the Florida Prescription Drug Monitoring Program? Why or why not? Please leave any thoughtful comments below.


Source:
Cox, John Woodrow, "Florida Drug Database Intended to Save Lives is Barely Used by Doctors." Tampa Bay Times. October 7, 2012. From: http://www.tampabay.com/news/health/florida-drug-database-intended-to-save-lives-is-barely-used-by-doctors/1255062


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.

Osteopathic Physicians: Do Not Make These Mistakes After Being Notified of a Department of Health (DOH) Complaint

By Christopher E. Brown, J.D.

The investigation of a complaint which could lead to the revocation of an osteopathic physician's license to practice 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 osteopathic physician who receives it. Yet, in many cases, attorneys are consulted by osteopathic 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 osteopathic physician.

These are the 25 biggest mistakes we see in the osteopathic medicine 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 osteopathic 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 osteopathic 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 osteopathic 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 medical procedures or 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 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 osteopathic 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.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Osteopathic Physicians.
 
The attorneys of The Health Law Firm provide legal representation to osteopathic physicians in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.
 
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
 
About the Author: Christopher E. Brown, J.D. 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

Florida Man Admits to Fraudulently Working as a Pharmacist for Nine Years

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

On July 24, 2012, a 49-year-old man from Ruskin in South Fla., pleaded guilty in federal court to fraudulently working as a Central Florida pharmacist from 2000 to 2009, according to the Department of Justice (DOJ) in a press release.

Fake Pharmacist was Working at Pharmacies in Central Florida .

Prosecutors said this man worked at pharmacies throughout Central Florida, including CVS pharmacy and Walgreens. According to the Orlando Sentinel, while working at one of the pharmacies, he gave a customer the incorrect medication, causing that person to suffer a severe reaction and stroke.

How He Obtained His False Identity.

Allegedly, the man fraudulently obtained a pharmacist license in September of 2000 from the State Department of Health (DOH) by using the name, date of birth, Social Security number and pharmacy education information of a licensed pharmacist.

The fake pharmacist was able to renew the license and was allegedly receiving paychecks from pharmacies through the mail.

The Real Pharmacist Reports His Identity Stolen.

Local authorities began investigating the South Florida man after a legitimate pharmacist in Arizona reported that his identity had been stolen.

The legitimate pharmacist first learned in 2007 that someone was using his identity in Florida when the Internal Revenue Service (IRS) contacted him about undeclared earnings. He had never worked in Florida and learned someone was posing as him and working as a pharmacist under his name, according to the court records.

To see the full press release on this case, click here.

Fraudulent Pharmacis Faces More Than 30 Years in  Prison.

The fraudulent pharmacist pled guilty to mail fraud, aggravated identity theft, and money laundering in Orlando. He faces up to 20 years in federal prison for the mail fraud charge, 10 years for the money laundering charge, and a minimum of two years for any other sentence for the aggravated identity theft charge, the Justice release said.
The Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) investigated the case with assistance from the Florida Department of Health’s Division of Medical Quality Assurance.

Click here to see our experience representing pharmacists and pharmacies.

Contact Health Law Attorneys Experienced with Representing Pharmacists and Pharmacies.

The attorneys of The Health Law Firm provide legal representation to pharmacists and pharmacies in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.
 
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:
FBI.gov. “Pharmacist Impersonator Charged with Mail Fraud, Identity Theft, and Money Laundering.” FBI, Tampa Division. (July 24, 2012). From Press Release: http://www.fbi.gov/tampa/press-releases/2012/pharmacist-impersonator-pleads-guilty-to-mail-fraud-identity-theft-and-money-laundering

TBO.com. “Ruskin Man Admits Identity Theft in Fake Pharmacist Case.” Tampa Bay Online. (July, 24, 2012). From: http://www2.tbo.com/news/health-4-you/2012/jul/24/ruskin-man-admits-identity-theft-in-fake-pharmacis-ar-440248/

Pavuk, Amy. “Feds: Man Stole Pharmacist's Identity, Worked at Pharmacies Across Metro Orlando.” Orlando Sentinel. (July 24, 2012). From: http://articles.orlandosentinel.com/2012-07-24/news/os-pharmacist-stolen-identity-20120724_1_pharmacies-illinois-court-federal-court

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.

25 Mistakes Dentists Make After Being Notified of a Department of Health Complaint

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

The investigation of a complaint which could lead to the revocation of a dentist's license to practice 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 dentist who receives it. Yet, in many cases, attorneys are consulted by dentists 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 dentist.

Here are the 25 biggest mistakes we see dentists make in cases 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 dentist. (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 dentist'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 dentist'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 dental 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 dental record to office staff, resulting in an incomplete or partial copy being provided.

11. Failing to keep an exact copy of any dental records, documents, letters or statements provided to the investigator.

12. Believing that the investigator has knowledge or experience in 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 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 dentist 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.

Contact Health Law Attorneys Experienced with Department of Health Investigations of Dentists.
 
The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations and other types of investigations of health professionals and providers.
 
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
 
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

Emergency Suspension Order Issued to Florida Cardiologist for Performing Stem Cell Treatments

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
A Florida cardiologist recently had his medical license emergently suspended by the Florida Department of Health (DOH) for performing stem cell treatments. According to the emergency suspension order (ESO), the DOH had previously warned the doctor to stop performing these treatments in 2011. Now, his license is at risk of being revoked. To view the ESO click here.

Cardiologist's License Suspended by the DOH Because He Was Allegedly Performing Stem Cell Treatments.

The DOH ordered the emergency suspension of the cardiologist's medical license in March 2012. He is being accused of violating an emergency restriction order (ERO) against using stem cell treatments in Florida. He is also being accused of causing the death of a patient.
We want to be perfectly clear that these are just allegations being made by the DOH at this point in time. All persons are presumed to be innocent until found guilty in a court of law (or, in DOH licensure cases, in an administrative final order).

Stem Cell Treatment Allegedly Factor in Patient's Death.

According to the ESO, the doctor performed a stem cell treatment on a patient who had both pulmonary hypertension and pulmonary fibrosis. Both of these conditions restrict blood flow to the heart. According to the ESO, the stem cell treatment included harvesting adipose tissue from the patient's abdomen and concentrating stem cells from the tissue in a lab. The concentrated stem cells were then infused into the patient's bloodstream to help treat the patient's pulmonary hypertension and pulmonary fibrosis. Allegedly, the cardiologist's patient suffered a cardiac arrest and died during the treatment.

Doctor Now Awaits Administrative Hearing.

An administrative hearing regarding the doctor's license suspension is scheduled for June 2012.

To view the administrative complaint issued by the DOH, click here.

To see a diagram or flow chart of the procedures followed by the Florida Department of Health, click here.

For an explanation of the differences between a formal administrative hearing and an informal administrative hearing under the Florida Administrative Procedure Act, Chapter 120, Florida Statutes, click here.

For the Florida Administrative Procedure Act, Chapter 120, Florida Statutes, click here.

Contact Health Law Attorneys Experienced with Emergency Suspensions and Other Adverse DOH Actions.

The attorneys of The Health Law Firm are experienced in handling all types of DOH cases, including emergency suspensions, administrative complaints, investigations, administrative hearings, investigations, licensing issues, settlements and more. If you are currently facing adverse action by the DOH contact one of our attorneys by calling (407) 331-6620 or (850) 439-1001. You can also visit our website for more information at http://www.thehealthlawfirm.com/.

Sources:

Fitzpatrick, David and Drew Griffin. "Florida Suspends Doctor Accused of Illegal Stem Cell Therapy." CNN. (Mar. 8, 2012). From:
http://www.cnn.com/2012/03/08/health/stem-cell-doctor-suspension/index.html

Miller, Reed. "Flouting Warning, Florida Stem-Cell Cardiologist has License Suspended." theheart.org. (Mar. 8, 2012). From:
http://www.theheart.org/article/1368039.do

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.

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 http://www.thehealthlawfirm.com/.