Say Whatttt? Defamation in Florida

TTP Headshot SmBy Thu T. Pham, O.D., J.D., The Health Law Firm.

Defamation is defined as any intentional false statement that harms a person’s reputation. It encompasses both written (libel) and spoken (slander) statements. Depending on the nature of the offense, it can lead to both civil and/or criminal sanctions. But when has defamation actually been committed? Successfully proving defamation can be difficult and convoluted.

Defamation Is Not…

Let’s start by stating what defamation is NOT. Speaking one’s mind, or voicing a negative opinion, is not defamation. The Constitution protects our freedom of speech. So, for example, to say that someone has a very un-agreeable disposition, is tacky, or even bad breath, is not defamation. We are all entitled to our opinions.
So What is Defamation?

Defamation has been committed when someone knowingly makes a false accusation. For example, falsely accusing an ex-employee of committing theft in order to gain the upper hand in an unemployment hearing would be considered defamation. There are 3 elements that must be demonstrated in order to prove defamation. One, the statement made was false, the statement caused harm, and the statement was made without adequate research as to its credibility. For a celebrity or public official, to prove defamation, they must also prove there was malicious intent behind the statement.
Situations Where You May Recover Damages Without Proving Actual Damages.

There are times when a statement is so heinous and despicable in nature that actual damages need not be proven. This is known as “defamtion per se.” Such statements include but are not limited to accusations of immoral acts, criminal activity, having a sexually transmitted infection, or having a characteristic that is incompatible with the proper exercise of one’s trade or profession. Punitive damages may be awarded in these instances as a way to punish the libeller.
Defenses In a Defamation Suit.

There are special protections afforded to members of the media, government workers, politicians, and public figures, providing them certain defenses in a defamation lawsuit.

For medical doctors, optometrists, nurses, dentists, hospitals, and nursing homes that are not afforded such protections, their only defense would be “substantial truth.” This means that the statement does not have to be entirely true as long as the “gist” of the statement is true.
If You Have a Valid Defamation Action, Don’t Delay!

If you feel that you’ve been defamed, do not wait to contact an experienced attorney. In Florida, the statute of limitations for a defamation action is two years. If a claim is not brought forth in this time period, it is forfeited.
Comments?

Before this blog, did you fully understand defamation? Please leave any thoughtful comments below.
Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, optometrists, pharmacists, psychologists and other health 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: Dr. Thu T. Pham represents physicians, dentists, nurses, optometrists, and other health care providers. Her practice includes health law, nursing law, employment law, defense of Medicare and Medicaid audits, and investigations, administrative proceedings and the defense of professional licenses and prepares appeals of administrative law cases. Dr. Pham is also an active doctor of optometry.

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 © 1996-2014 The Health Law Firm. All rights reserved.

Vision Service Plan Audits: An Eye-Opening Experience for the Unprepared

TTP Headshot SmBy Thu T. Pham, O.D., J.D., The Health Law Firm

Unannounced guests dropping by can be a stressful experience for a surprised host. Many would agree that the worst unannounced visitor of all, dreaded more than the in-laws, is the auditor. This “guest” is looking to scrutinize your office policies, patient records, and billing files to uncover and prove allegations worthy of disciplinary action. Optometrists and ophthalmologists have very different audit experiences in comparison to other types of healthcare professionals. Third party payers, typically Vision Service Plan (VSP), perform the audits of vision care practices. Warning: These third party payers have recently increased the frequency of such audits. Below is everything you need to know.

Types of VSP Audits.

Like most healthcare audits, the objective of VSP audits is to identify lapses in strict compliance of industry rules and regulations in areas such as billing, filing, and general business practices. However, unlike Medicare audits that take place only when there is a suspected issue or violation, VSP commonly performs routine audits to ensure quality control. Eventually VSP reviews each doctor about once every five years as required by the National Committee for Quality Assurance Standards. VSP rules change frequently without warning, so it’s critical to stay up to date on the latest compliance rules.

VSP audits can take place in two very distinct formats. The most common audit previously noted above is the routine quality control audit. A practitioner will be asked to send in a small number of randomly selected patient files. These files will be reviewed by the VSP Quality Control Unit that will issue a report of the audit results. If issues are noted in the audit, the results may include a corrective action plan identifying the necessary corrections required. These audits can be expected time to time for all practicing optometrists and ophthalmologists.

The second type of VSP audit is typically ordered when major patterns of inconsistency are noted in an initial quality control audit. A “targeted audit” is performed by the VSP Special Investigations Unit (SIU) and is almost always unannounced. The SIU investigator will show up at an office and request on average 30 to 50 records. These records are not randomly selected, but rather, are related to one or more areas of interest. These audits are conducted to prove violations when it is already believed, by VSP, that rules are being broken.

How to Avoid Negative Audit Results.

A targeted audit can be triggered by a multitude of red flags. Disgruntled employees who make a claim or a patient complaint can lead to a surprise in-office visit from a VSP auditor. In addition, many questionable billing patterns noted by an auditor during a routine quality control audit can spark curiosity for further investigation. Billing for services and products at a rate higher than surrounding area doctors, or at a rate higher than you traditionally have charged, are both red flags. Billing for a comprehensive eye exam and a routine exam on or near the same date will also stick out as potential fraud.

Auditors, in both a quality control audit and targeted audit, focus their scrutiny on the history, examinations, and medical decision-making parts of a patient record. For a doctor, it is beneficial to clearly and completely record the reason for a patient’s visit, their symptoms, and past health history.

Verify that you have recorded any and all tests and exams that were performed during the appointment. Auditors will argue that if you didn’t write it down, it didn’t happen. From our experience, the most poorly documented section of a patient’s record is the medical decision at the conclusion of an exam. It is very crucial to provide detailed statements in addition to a final diagnosis. This will show the auditor you gave sufficient consideration during the exam to conclude a diagnosis. The more documentation you have, the more defensible those records are in an audit. The number one reason an audit may have a negative outcome is due to missing or insufficient documentation.

The Auditor is Knocking at the Door. Now What?

During an audit, the single most important action you can take is to agreeably provide the auditor with ALL complete records related to their requests. The less you argue and defend yourself, the better. A common mistake doctors make during a VSP audit is not providing copies of all relevant information. Relevant information includes any and all information you have on a patient related to the services and materials provided. Do not make assumptions when it comes to what information the auditor needs. Give them copies of everything you have.

If you cannot locate necessary files required for the investigation, ask the auditor for a time extension and put this permission in writing. Do your best to locate these missing files. Patient charts you cannot find during an unannounced audit will be considered over billed. Also, ask the auditor for a copy of the list of patient records that were audited. Keeping track of what you provided the auditor is also important in legally protecting yourself.

The Aftermath of an Audit: What to Expect.

The results of your audit will be mailed to you in a letter. The letter will either give you notice that VSP is terminating your Network Provider Agreement, order that you pay restitution, or both. You may be offered a Consent Decree or a Corrective Action Plan. The Corrective Action Plan is self explanatory: you must agree to immediately cease the actions alleged in the audit. In a Consent Decree, you will receive a probationary time period in which VSP may decide to terminate you or not. In this time frame, you are also eligible for additional audits billable to you.

The letter will also explain the process of appealing the audit’s findings under the “Fair Hearing Plan.” You will only have 30 days to file an appeal. During the process, should your letter claim restitution payments, VSP will immediately start withholding all funds owed to you and apply it to the claimed restitution.

An appeal will be conducted through an administrative peer-review hearing before the VSP Quality Control Panel. Records of the audit will be reviewed once again, and you will have the opportunity to provide evidence and your own records in support of your defense. The board, consisting of three doctors selected by VSP, has the authority to overrule the initial ruling. They may revise the restitution owed, repeal the termination, or initiate another form of disciplinary punishment. It is extremely difficult to convince this panel for an appeal. Should you lose an appeal, you still may seek arbitration or legal action in court.

Ideally, it is best to have an attorney familiar with you and your business available before any audit is initiated. An experienced health law attorney armed with knowledge of industry laws can be critical in successfully surviving the audit process. Any negative VSP action is typically reported to the National Practitioner Data Bank (NPDB) and will remain on your professional file for life. You may also be reported to the Board of Optometry which can lead to disciplinary action against your license. Securing a health law attorney who is familiar with the process is invaluable when considering the potential harm a negative VSP audit can cause.

Comments?

Have you ever had experience with a VSP audit? Please leave any thoughtful comments below.

 

Contact Health Law Attorneys Experienced in Handling VSP Audits, Investigations and other Legal Proceedings.

The Health Law Firm’s attorneys routinely represent ophthalmologists, optometrists or other health professionals in VSP investigations, audits and recovery actions. We also represent optometrists, ophthalmologists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies.

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: Thu T. Pham, O.D., J.D., is an attorney with The Health Law Firm, which has a national practice. It’s 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 © 1996-2014 The Health Law Firm. All rights reserved.

 

Florida Ophthalmologist Blinded by Greed-Accused of $7 Million in Medicare Fraud

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

An Orlando ophthalmologist is accused of performing unnecessary laser-eye surgeries on numerous patients and submitting $7 million in false claims to Medicare. The eye doctor was indicted on April 24, 2014, on 20 counts of Medicare fraud by a federal grand jury in Jacksonville, according to the Orlando Sentinel. If convicted, the ophthalmologist could face life in prison.

Click here to read the entire article from the Orlando Sentinel.

The ophthalmologist’s practices are located in Leesburg and Orlando.

Charges Against the Ophthalmologist.

According to the Orlando Sentinel, the ophthalmologist is accused of falsely diagnosing patients with macular degeneration, a progressive eye disease that can lead to blindness. He allegedly performed laser surgery needlessly and provided unnecessary follow-up care to at least 20 patients. The indictment stated the eye doctor used the laser for treatment at such a low level for the patients that the work had no impact. This scheme allegedly spanned from 2000 until 2011.

And that’s not all. The eye doctor is also accused of falsifying medical records and billing other insurance companies for similar unnecessary procedures.

Records show state health officials suspended the ophthalmologist’s access to collect from Medicare and Medicaid in 2013, after investigating three malpractice complaints against him.

Losing His Luxuries.

As part of the criminal case, federal authorities have filed paperwork to seize the eye doctor’s four homes in Orange County, his Lexus and his Porsche convertible, according to The Florida Times-Union.

To read The Florida Times-Union, click here.

The civil forfeiture of property has become a popular tool for state and federal agencies to combat alleged criminal activity. In Florida, the Florida Contraband Forfeiture Act, Sections 932.701 through 932.706, Florida Statutes permits the government to seize personal property if there is probable cause to believe that property is either an instrumentality or the proceeds of criminal activity.

To read more on how the civil forfeiture of property and money is being used, click here to read a previous blog.

Eye Doctors Seeing Red After Medicare Reimbursement Data Released.

In April 2014, the government released records of Medicare reimbursement payments made to healthcare providers. Ophthalmologists ranked fourth among the highest-grossing Medicare recipients in Florida. To read my previous blog on reasons why ophthalmologists rack up more Medicare bucks, click here.

Don’t Wait Until It’s Too Late; 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 http://www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Comments?

Do you have any personal experience regarding improper billing or false diagnosing? Please leave any thoughtful comments below.

Sources:

Stutzman, Rene. “Orlando Eye Doctor Accused of $7 Million in Medicare Fraud.” Orlando Sentinel. (May 6, 2014). From: http://articles.orlandosentinel.com/2014-05-06/news/os-david-ming-pon-medicare-theft-20140506_1_medicare-fraud-macular-degeneration-laser

Schoellter, Jim. “Judge in Jacksonville Orders Ophthamologist Held in $7m Fraud Case Involving Hundreds of Seniors.” The Florida Times-Union. (May 6, 2014). From: http://members.jacksonville.com/news/crime/2014-05-05/story/judge-jacksonville-orders-ophthamologist-held-7m-fraud-case-involving#ixzz30w2cFtT4

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 © 1996-2014 The Health Law Firm. All rights reserved.

The Health Law Firm Attorneys Often Represent Ophthalmologists and Optometrists in Last Minute Depositions and Hearings

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

Our attorneys often receive calls from ophthalmologists, optometrists, and other health professionals regarding the possibility of representing them on short notice at a Board of Optometry or Board of Medicine hearing, or at a deposition related to a health care matter.

Call Us If You Need Last Minute Representation.

Many law firms refuse to represent a client at a hearing unless given plenty of preparation time. In a perfect world, we would always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

Please note, we may refuse some cases, if we believe the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile.

Administrative Proceedings Can be Very Complex.

Some times individuals responding to a disciplinary complaint may be deceived into thinking that they can effectively represent themselves. Laypersons (or nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Medicine or Board of Optometry and the Department of Health (DOH) have enacted, may quickly be perplexed.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the DOH investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Don’t Risk Damaging Your Defense.

Often you will find that just having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Medicine or Board of Optometry, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Medicine or Board of Optometry to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have many more procedural rights than you have at an informal hearing. We still recommend that you have an experienced health lawyer represent you at a formal hearing.

Professional Liability Insurance is Important, Here’s Why.

If you are a ophthalmologist, optometrist or other health professional who has a professional liability insurance policy, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates and many other malpractice insurance companies provide excellent deposition coverage.

The next step you should take is to call an experienced attorney. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Call An Attorney Experienced in the Representation of Ophthalmologists and Optometrists.

We routinely provide deposition coverage to ophthalmologists, optometrists or other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing ophthalmologists, optometrists and other health professionals in investigations and at Board of Medicine or Board of Optometry hearings. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Have you ever had an informal or formal hearing before the Board of Medicine or Board of Optometry? What was the experience like? 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.

Eye Doctors Seeing Red After Medicare Reimbursement Data Released

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

After the government released records of Medicare reimbursement payments made to healthcare providers, upset eye doctors are arguing the accuracy of the data. The Centers for Medicare and Medicaid Services (CMS) recently released the extensive details of such Medicare payments.

According to the New York Times, more than any other specialist, ophthalmologists were the biggest recipients of Medicare reimbursement payouts in 2012. The New York Times article states that 17,000 eye care providers, mostly concentrated in Florida, Texas, California and New York, accounted for seven percent (7%), or $5.6 billion, of all reimbursements in the fiscal year. Despite the data, ophthalmologists are claiming that the numbers released are complete misrepresentations of their actual take-home pay. Eye care physicians argue that the data lacks proper context thus resulting in a false image of fraud and wealth.

To read more on this topic from The New York Times, click here.

Reasons Why Ophthalmologists Rack Up More Medicare Bucks.

“Releasing the data without context will likely lead to inaccuracies, misinterpretations, false conclusions and other unintended consequences,” said Ardis Dee Hoven, M.D., a specialist in internal medicine and infectious diseases, and President of the American Medial Association. This is the argument made by eye doctors claiming the reimbursement data is unfair to them. The basis on which physicians are arguing the data accuracy hinges on the demographics of patients seen and the high cost of prescriptions they require.

With the exception of geriatrics, ophthalmology serves the largest quantity of elderly patients out of all specialities of medicine, according to the Washington Business Journal. Medicare coverage is widely used among this age demographic.

Medicare typically covers corrective procedures for macular degeneration, a common disease in the elderly. Eye physicians are equating the expensive treatment for this degenerative disease to the misleading reimbursement amounts on record with the CMS.

Lucentis is the Food and Drug Administration (FDA) approved drug used in the common procedure to correct macular degeneration. According to The New York Times, in 2012 Lucentis alone accounted for $1 billion in Medicare spending. With vials of the drug costing $2,000 each, physicians argue that it’s easy to see how a Medicare bill can mount up quickly. The majority of eye physicians argue that expenses of the drugs used to perform common procedures go directly to the drug companies, not into their pockets.

Click here to read more from the Washington Business Journal

Eye Drug Expenditures.

Ophthalmologists believe that they are being unfairly targeted by a system that they have no control over. The pressure is now on these physicians to start administering cheaper drugs to their patients. Avastin, an equivalent to Lucentis and produced by the same drug company, has a price tag 40 times cheaper and is reported to work equally as well. Although Avastin has not been approved for eye patients by the FDA, doctors have been saving their patients money by substituting the less expensive drug.

Johnathan Blum, principal deputy director of the CMS stated: “Under the current statutory framework we work under we cannot encourage or require physicians to use lower-cost drugs that are available.” Physicians argue that the profit margins they receive are similar no matter which drug is used in common procedures. They also stress that ultimately, it is the patient who has the final choice when deciding between the high-priced name-brand drug or an unapproved affordable drug.

To read the entire article on Bloomberg News, click here.

Pros and Cons of Publicly Releasing the Data.

The Medicare claims database is considered to be the most extensive source of information on doctors, nurse practitioners (NPs), and physician assistants (PAs) in the United States. Because the Medicare program is financed by taxpayers, many argue that they have the right to access this information. Those advocating the data release claim that the information could guide the general public in selecting physicians of quality and cost-effecting care, according to Modern Healthcare. The publication of this data is also for the purpose of more easily spotting physicians who overcharge Medicare. Insurers also argue that the data will assist in their efforts of demanding low-performing physicians to measure up to set standards.

Click here to read the entire Modern Healthcare article.

Contact Health Law Attorneys Experienced in Representing Optometrists and Ophthalmologists.

The Health Law Firm routinely represents optometrists, ophthalmologists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Comments?

Do you believe that releasing Medicare reimbursements creates misconceptions about doctors’ spending? As an optometrist or ophthalmologist, do you feel you are being unfairly portrayed by Medicare data? Please leave any thoughtful comments below.

Sources:

Reed, Tina. “7 Questions on Why Ophthalmologists get Reimbursed So Much From Medicare, and Why They Say You Shouldn’t Be Upset About It.” The Washington Business Journal. (April 15, 2014). From: http://bit.ly/1poQvtp

Pollack, Andrew. “Eye Doctors Say Their Profits Are Smaller Than Data Makes Them Look.” The New York Times. (April 9, 2014). From: http://nyti.ms/1m5vZf6

“Medicare database lists top-paid doctors; Fla. ophthalmologist received almost $21 million.” Modern Healthcare. (April 9, 2014). From: http://bit.ly/1nmTnFh

Chen, Caroline and Cortez, Michelle Fay. “Eye Doctors Say Medicare Pay List Unfairly Demonizes Them.” Bloomberg News. (April 11, 2014). From: http://bloom.bg/PXCrY1

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 © 1996-2014 The Health Law Firm. All rights reserved.

South Dakota Optometrist Settles Health Care Fraud Claims

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A South Dakota optometrist reached a settlement with the South Dakota Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU), and the U.S. Department of Health and Human Services (HHS), Office of the Inspector General (OIG). The optometrist will be shelling out $283,499 to resolve allegations he submitted false claims to Medicare, Medicaid and TRICARE, according to the South Dakota AG. This settlement was announced on October 1, 2013.

Click here to read the press release from the AG.

Optometrist Will Pay Fine and Sign Integrity Agreement as Part of the Settlement.

According to the AG, the optometrist allegedly submitted false claims to the health care programs for bifocal lenses, trifocal lenses and new patient visits. He is also accused of billing Medicare, Medicaid and TRICARE for medically unnecessary visual field examinations from June 2006 until December 2012.

On top of the fine, the optometrist will also sign an Integrity Agreement with the HHS, OIG. In the agreement, the optometrist will provide free eye care to underserved patients for one year, according to an article in Rapid City Journal.

Click here to read the Rapid City Journal article.

Responding to a MFCU Investigative Subpoena.

This case against the optometrist was handled, in part, by the MFCU. The MFCU is in charge of investigating and prosecuting health care providers suspected of defrauding the state’s Medicaid program.  When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific records. It is important to remember that the MFCU would not be involved unless criminal fraud was suspected. Click here to read practice tips on how to properly respond to a subpoena.

Fraud Charges Need to be Taken Seriously.

We have been consulted by many individuals, both before and after criminal convictions for fraud or related offenses. In many instances, we are convinced that the person is actually not guilty of fraud. However, in many cases those subject to Medicaid or Medicare fraud audits and investigations refuse to acknowledge the seriousness of the matter or they decide not to spend the money required for a top quality attorney to defend them.

If you are accused of Medicare or Medicaid fraud, realize that you are in the fight of your life. Your liberty, life and profession are at stake. You need to sell everything you own, borrow everything you can and hire the absolute best criminal defense attorney available who has experience in defending such cases to represent you.

If you win and are acquitted, at least you still have a professional license and can start over. However, if you lose, you will most probably be in prison for years. You will lose your license. You will be excluded from Medicare. You will be a convicted felon. You will have nothing and will have no way of starting over successfully. Be prepared to give up whatever you have if you can avoid a conviction.

Don’t Wait Until It’s Too Late; 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.

Comments?

Have you heard of the MFCU? How would you respond to a subpoena from the MFCU? Please leave any thoughtful comments below.

Sources:

South Dakota Attorney General. “Optometrist Settles Healthcare Case with South Dakota and United States.” South Dakota Attorney General. (October 1, 2013). From: http://atg.sd.gov/News/NewsReleases/NewsReleasesView/tabid/441/itemID/3251/moduleID/719/view/597/Default.aspx

Rapid City Journal Staff. “Optometrist Settles Case Involving Fraud Allegations.” Rapid City Journal. (October 1, 2013). From: http://rapidcityjournal.com/news/local/article_62eafa10-0c68-5240-aee5-97defb6627a5.html#.UkyGbJiR9mA.twitter

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.

Helpful Legal Tips to Ophthalmologists and Optometrists from a Health Law Attorney

2 Indest-2009-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The attorneys of The Health Law Firm represent Ophthalmologists and Optometrists in a number of different legal matters. We appear before the Board of Optometry. We represent ophthalmologists and optometrists in disciplinary matters, in credentialing matters, in licensing matters and in defending against malpractice claims and suits.

If you receive a letter from the Department of Health (DOH) notifying you that you are being investigated, this is a very serious matter. Get an attorney who is experienced in such matters.

Tips For Optometrists and Ophthalmologists After Being Notified of an Investigation:

1.  You are not required to make any statement to the investigator, oral or written, and     you should not do so.

2.  You do not have to send the investigator a copy of your resume, and you should not     do so.

3.  You have a Fifth Amendment right to refuse to say or do anything that might incriminate yourself. This applies to administrative investigations.

4.  If you have malpractice insurance (professional liability insurance) it may pay for     your legal defense in an investigation. Use it!

5.  You have the right to obtain a copy of the investigation after it is completed and to file a rebuttal to it.

Other Things to Keep in Mind When Being Investigated:

1.  You should never agree to voluntarily relinquish your license if any investigation is pending. This will be treated the same as a disciplinary revocation and the consequences will be severe. (see below.)

2.  You should never request an informal hearing. An informal hearing means you are admitting all of the allegations against you are true (pleading guilty), and you are not disputing them.

3.  If disciplinary action is taken against you (including a “voluntary” relinquishment) this will be reported to your national certification board and it will most likely revoke your national certification.

4.  If you have licenses in other states or in other health professions, this will be reported and they will commence investigations and disciplinary actions.

5. It will be reported to the National Practitioner Data Bank (NPDB) and the Office of         the Inspector General (OIG). The OIG will then commence action to exclude you from the Medicare Program. If excluded, it is likely that you will not be able to work in health care or for any government contractor in any capacity.

Our attorneys have been very successful in representing ophthalmologists and optometrists. We may be able to have your case dismissed by the Probable Cause Panel of the Board. If not, we may be able to obtain a favorable result for you in a formal administrative hearing (like a trial) where the government has to prove the case against you, and you are able to defend yourself.

You spent a great deal of time and money to get your professional education and your profession licenses. Don’t give it all up without getting advice from experienced attorneys.

If You Don’t Have Insurance Coverage, Get It Now!

Our recommendation is that every ophthalmologist and optometrist carry professional liability insurance that includes professional license defense coverage (sometimes called disciplinary defense, license defense, administrative hearing coverage or broad coverage). Often this type of insurance coverage is included in most professional liability policies; however, if it is not, it can often be added as a rider to the insurance policy for a slight additional charge. You should be sure that your coverage for professional license defense is at least $25,000, and we recommend that you increase it to $50,000. You should also request and obtain “broad form coverage” that includes coverage of your legal fees for defense of all administrative or governmental proceedings, including Medicare audits, Medicaid audits, EEOC complaints and other types of governmental actions that could be initiated against you.

If you are required to defend yourself at a formal administrative hearing, this is similar to a medical malpractice trial in civil court. Attorney’s fees, court reporter costs, expert witness fees and other costs and fees can rapidly mount up to the point where most ophthalmologists and optometrists could not afford to defend themselves. If you are then required to appeal an adverse outcome, the appeal alone could cost $10,000.

Don’t wait to purchase this type of insurance until there is a complaint filed against you, because then it is too late to purchase it. Complaints can be initiated against you based solely on anonymous calls to the Department of Health Hotline, newspaper reports, prior arrest reports, disgruntled patients, disgruntled insurance companies, competitors or other sources. Once and investigation is initiated, you should obtain legal representation right away. Without insurance, you probably will not be able to afford to hire a competent, experienced health lawyer to defend you. Always go to a board certified health lawyer experienced in representing ophthalmologists and optometrists.

For a chart depicting the Florida Department of Health investigation process, click here.

Contact  Health Law Attorneys Experienced in Representing Optometrists and Ophthalmologists.

The Health Law Firm routinely represents optometrists, ophthalmologists and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

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

Comments?

How much of this did your already know? As an optometrist or ophthalmologist, what are your biggest concerns? 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.
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