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

Florida Nurse Allegedly Abuses Patient During Medication Administration

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

A Florida State Hospital licensed practical nurse (LPN) has been arrested and charged with one count of abuse of a disabled adult at the hospital. The nurse was arrested on a felony warrant by the Attorney General’s Medicaid Fraud Control Unit (MFCU). The arrest was announced by the Florida Attorney General on June 29, 2012.

Nurse Allegedly Abused Patient During Medication Administration.

The nurse allegedly struck a disabled woman at the mental health facility, while trying to administer medication. The nurse attempted to administer medications to the patient by holding her nose closed in an attempt to force her mouth open, slapping her across the face, and pulling the patient’s hair, according to the charges filed.

The nurse has been charged with one count of abuse of a disabled adult, which is a third degree felony. If convicted she faces up to five years in prison and a $5,000 fine.

Medicaid Fraud Control Unit (MFCU) Conducted Investigation of Nurse.

Investigators with the Medicaid Fraud Control Unit (MFCU) received information regarding the alleged abuse from the Florida Department of Children and Families’ (DCF) Adult Protective Services Program. The Calhoun County Sheriff’s Office assisted in the arrest. The case will be prosecuted by the State Attorney’s Office for the Second Judicial Circuit of Florida.

Contact Health Law Attorneys Experienced in Representing Nurses.

The Health Law Firm's attorneys routinely represent nurses in Department of Health investigations, before the Board of Nursing, in appearances before the Board of Nursing in licensing matters, and in administrative hearings.

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

Sources Include:

Lucas, John. "Attorney General Pam Bondi Announces Arrest of Nurse for Abusing a Disabled Adult at Florida State Hospital." Florida Office of the Attorney General. (June 29, 2012). Press Release. From: http://www.myfloridalegal.com/newsrel.nsf/newsreleases/AF6292E44D8579B685257A2C0069ED2D

WCTV. "Nurse at Florida State Hospital Arrested for Abuse." WCTV.com. (June 29, 2012). From:
http://www.wctv.tv/home/headlines/Nurse_at_Florida_State_Hospital_Arrested_for_Abuse_160893645.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.  http://www.thehealthlawfirm.com/  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Informal Hearings Before the Florida Board of Pharmacy

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

If you are scheduled to appear for an informal hearing before the Florida Board of Pharmacy, there are a number of facts that you will want to know in order to be properly prepared.  This article will cover many of them.

Limited Circumstances for Informal Administrative Hearing

First, you should understand that you will only be at an informal hearing in which you appear before the Board of Pharmacy itself for a very limited number of reasons.  These will include the following:

1.  If you completed an election of rights (EOR) form and agreed that you did not intend to dispute any material facts alleged against you from the administrative complaint (AC) in the case.

2.  If you entered into a settlement agreement (or "stipulation") (similar to a plea bargain in a criminal case) in which you agreed to accept discipline against your license.

3.  You failed to submit any election of rights (EOR) form and failed to file a petition for a formal hearing in a timely manner, and, therefore, you have waived your right to a formal hearing.
There are a few other circumstances in which there may be an informal hearing before the Board of Pharmacy, such as motions to modify a final order, motion to lift a suspension of a license, appearance in accordance with an earlier order, petition for a declaratory statement, or other administrative matters.  This article only discusses those directly relating to disciplinary action as indicated above.

What an Informal Administrative Hearing Is Not.
1.  An informal administrative hearing is not an opportunity for you to tell your side of the story.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

2.  An informal administrative hearing is not an opportunity for you to prove that you are innocent of the charges.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

3.  An informal administrative hearing is not an opportunity for you to introduce documents or evidence to show that someone else committed the offenses charged and you did not.  You have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.
4.  An informal administrative hearing is not an opportunity for you to argue that you should not be in the board's impaired practitioners program (the Professionals Resource Network (PRN)) because you have completed a different program or that you do not have a problem.  These are the only programs recognized and used and you have agreed that there are no disputed material facts in the case or you would not be at an informal hearing.

Board of Pharmacy Formal Administrative Hearing vs. Informal Hearing.
If you desire to contest the facts alleged against you then you must state this in writing.  If the material facts in a case are challenged by you, then the Board of Pharmacy or the Department of Health (DOH) (note:  all professional boards are under the Department of Health in Florida) must forward your case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge (ALJ) will be appointed to hold a formal hearing in your case.  This is the only way that exists for you to prove that the facts alleged against you are incorrect or that you are not guilty of the charges made against you.  In fact, you do not even have to do anything in such a case.  The Department of Health has the burden of proof and it has to prove the charges against you and the material facts alleged against you by clear and convincing evidence.  Often, it is unable to do this at a formal administrative hearing.
However, because of the technicalities of evidentiary law and administrative law, we do not recommend that a nonlawyer attempt to represent himself or herself at such hearings.  You can make technical mistakes (such as answering requests for admissions incorrectly) that severely compromise any defense you may have.  We recommend that you always retain the services of an experienced health lawyer in any such matter.

What to Do If You Find That You Are at an Informal Hearing and Decide to Contest the Material Facts of the Case (And Your Guilt or Innocence).
If you have been scheduled for an informal administrative hearing and you decide that you do desire to challenge the material facts alleged against you in the administrative complaint (AC), file a written objection to proceeding at the informal hearing.  State that you have discovered that there are material facts that you do desire to challenge and that you desire that the proceedings be converted to a formal hearing.  File this with the Clerk of the administrative agency you are before (usually the department of health or the Agency for Health Care Administration (AHCA) and also send a copy to the opposing attorney and the executive director of the Board of Pharmacy.  Do this as early as possible and keep proof that you have actually and filed the written request.
If you are already at the informal hearing when you discover this, object to the proceedings on the record and ask to have the informal hearing be converted to a formal hearing where you may contest the material facts.  State this as many times as reasonably possible.

Preparing for an Informal Hearing Before the Board of Pharmacy.
Since you are not contesting the facts alleged against you, if you are going to an informal hearing be sure you do the following:
1.  Be sure you know where the hearing is going to be held.  Try to stay the night before in the same hotel as the hearing will be held.  You will usually have to make these reservations early in order to get a room.

2.  Attend a Board of Pharmacy meeting that occurs before the one at which your case is scheduled.  This will give you a feeling for the procedures that will be followed, will help to make you less nervous when you appear, and you can obtain continuing education units for doing so (be sure to sign in and sign out).  Be sure to attend one of the days when the disciplinary hearings are held.

3.  Dress professionally for the appearance.  This may be the most important event in your professional career.  For men, this means a suit and tie or, at least, a dark coat, dark slacks and a necktie.  For women, a professional business suit or the equivalent is in order.  Do not dress as if you are going to the park, the beach or out on a date.  Do not wear sexually provocative or revealing clothing.

4.  Check the agenda that is published on line a day or two before the scheduled hearing to make sure that your case is still scheduled for the date and time on the hearing notice.  Informal hearings may be moved around on the schedule.  Make sure you are there at the earliest time on the hearing notice or agenda.

5.  Listen to questions asked of you by Board of Pharmacy members and attempt to answer them directly and succinctly.  You will be placed under oath for the proceeding and there will be a court reporter present as well as audio recording devices to take everything down.

6.  Do not argue with the Board members or lose your temper.  This is not the time or place to let this happen.  If you have such tendencies, then you should have an attorney there with you who can intercept some of the questions and can make defensive arguments (to the extent that they may be permitted) for you.

7.  You may introduce documents and evidence in mitigation.  However, you have agreed that the material facts alleged are true, so you may not contest these.  In effect, you have plead guilty and you are just arguing about how much punishment (discipline) and what kind of punishment you should receive.

8.  If you do intend to introduce documents and evidence in mitigation, be sure you know what the mitigating factors are (these are published in a separate board rule in the Florida Administrative Code for each professional board).  These may include, for example, the fact that there was no patient harm, that there was no monetary loss, that restitution has been made, the length of time the professional has been practicing, the absence of any prior discipline, etc.  You should submit these far ahead of time with a notice of filing, so that they are sent out to the board members with the other materials in your file.  This is another reason to have experienced counsel represent you at the informal hearing.

9.  Be prepared to take responsibility for your actions.  If you are not prepared to take responsibility, then this means you must believe you are innocent and you should be at a formal hearing, not an informal one.

10.  Be prepared to explain what went wrong, why it went wrong, and what remedial measures you have taken to prevent a recurrence of this type of event in the future.  Show that you have learned from this experience and that you are not going to make the same mistake again.

11.  It is our advice to always retain the services of an experienced attorney to represent you at such hearings.  Often your professional liability insurance will cover this.  If you have professional liability insurance, be sure that it contains a rider or addendum that provides coverage for professional license defense matters and administrative hearings.  You need at least $25,000 to $50,000 in coverage for this type of defense.  If necessary, you should contact your insurer or insurance agent and have the limits increased for a small additional premium.

Other Little Known Facts About Board of Pharmacy Proceedings to Remember.
Professional licensing matters are considered to be "penal" or "quasi-criminal" in nature.  Therefore, you have your Fifth Amendment rights in relation to being required to give evidence against yourself.  You cannot be compelled to do this in such matters.  However, since it is an administrative proceeding and not a criminal proceeding, there is no requirement that the licensee be advised of this by a DOH investigator or attorney.
If you enter into a settlement agreement and attend the informal hearing to approve it, nothing you say or testify to at this hearing can later be used against you.  This is because you are involved in an attempt to negotiate and settle (or compromise) the claims being made against you.  It is a general rule of law that nothing the parties say in such settlement proceedings can later be used as evidence if the settlement agreement is not approved.  The law tries to promote settlements among parties to any dispute in this way.
It is true that on occasion the Board will examine a case on an informal hearing and will decide to dismiss it.  This is rare, but it does happen.  Sometimes, it will be a tactical decision on the part of you and your attorney to elect to go to an informal hearing with the hope that the Board of Pharmacy may examine the case and decide to dismiss it.  However, you cannot count on this happening.

Don't Wair Until it is Too Late;  Consult with an Experienced Health Law Attorney.
Do not wait until action has been taken against you to consult with an experienced attorney in these matters.  Few cases are won on appeal.  It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.

The attorneys of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing pharmacists, pharmacies and pharmacy techs in investigations and at Board of Pharmacy hearings.  Call now or visit our website http://www.thehealthlawfirm.com/.

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

Florida Pain Clinics Continue to be a Target for Law Enforcement

Florida pain clinics began to really feel the impact of becoming law enforcement's newest target about a 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."
Regulations increased, and lawmakers enacted severe penalties for doctors accused of over-prescribing, including prison sentences. Most physicians were banned from dispensing drugs in their offices, and the governor created a Florida drug "strike team" 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."
According to the Orlando Sentinel, 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.
Now, 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 http://www.thehealthlawfirm.com/ for more information about this.

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/.