New York Optometrist Escapes Malpractice Suit for Patient’s Brain Tumor

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

On November 23, 2016, a New York appeals court freed a Madison Avenue Eye Care Ltd. optometrist Paul Kantrowich from a malpractice suit. It was alleged in the suit that Kantrowich negligently failed to diagnose a patient’s partial blindness that was caused by a brain tumor. The brain tumor was diagnosed by another doctor. The patient, Neil Flaherty, filed the suit too late, the court said, so the complaint against Kantrowich was dismissed.

Three-year Statue Limitations in New York Causes Dismissal of Case.

The New York appellate court said in its decision that Flaherty cannot bring up any visits he had with Kantrowich that occurred before February 2012 because his suit did not meet an exception to the three- year statute of limitations that exists in New York. The five-judge appellate court panel upheld the lower court’s September 2015 dismissal.

Kantrowich Did Not Diagnos Flaherty’s Brain Tumor.

The case dates back to 2005, when Kantrowich first examined Flaherty. Kantrowich had diagnosed Flaherty as being legally blind in his right eye, with 20/400 vision. For seven years, Flaherty returned to Kantrowich once a year to have his eyes examined as well as to get a prescription for contact lenses.

According to the allegations that were made, during the yearly visits, Kantrowich saw optic neuropathy, or damage, in Flaherty’s right eye. Kantrowich also noticed that the nerve was paler than it should have been. In February 2012, Kantrowich referred Flaherty to a neuro-opthamologist. The new physician to whom he was referred said Flaherty’s blindness was caused by a meningioma (tumor).

Flaherty’s suit against Kantrowich and Madison Avenue Eye Care, Ltd., claimed that Kantrowich should have either diagnosed the tumor earlier or referred him to a neuro-opthamologist sooner.

The appellate court said that Flaherty’s claims are subject to New York’s three-year statute of limitations because he did not come under the “continued treatment doctrine” which provides an exception to the statute of limitations. The court said that since Kantrowich only performed routine or diagnostic examinations and did not treat the neuropathy, his work cannot be considered a course of treatment.

The appellate court’s opinion states: “The measurement of plaintiff’s nerve pallor annually did not itself amount tp continuos treatment, or reflect any agreement to monitor the condition, but was part of the routine examination.”

The appellate panel stated that the February 2012 date falls within the statute of limitations, but because Flaherty did not argue that the delayed diagnosis worsened his condition or prevented him from getting better, the claim fails.

Editor’s Comments

It must be remembered that this case occurred in New York. Not every state has a statute of limitations for medical malpractice cases as long as New York’s is. For example, Florida’s statute of limitations for a medical negligence case is two years (in most cases). Most states have shorter statutes of limitations, with some as short as a year. If you suspect that you may have been the victim of malpractice, then you need to consult an experienced medical malpractice plaintiff’s attorney and follow-up on this at the earliest possible time. Any attorney will need time to investigate and follow the appropriate procedural steps required by law. Also, you may need to contact several different attorneys to find one who is interested in taking your case; but again, do this as early as possible.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, medical doctors, optometrists and ophthalmologists in defending against board complaints against their licenses, defending malpractice suits, defending peer review actions, defending whistle blower and other types of complex litigation cases. We represent physicians in Medicare and Medicaid audits, recovery actions, litigation, inspections and audits involving the DEA, Centers for Medicare and Medicaid Services (CMS), ZPIC audits, RAC audits, Department of Health (DOH) investigations, 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.

Source:
Kass, Dani. “NY Eye Doctor Escapes Suit Over Missed Brain Tumor.” Law360. (November 23, 2016.) Web.

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.

KeyWords: Reviews of The Health Law Firm, optometrist defense lawyer, health law, eye specialist defense attorney, Board of Optometry defense attorney, Board of Medicine defense counsel, legal representation for healthcare providers, The Health Law Firm reviews, ophthalmologist defense attorney, neuro-ophthalmologist defense counsel, health law litigation, legal representation of health professionals, The Health Law Firm, medical malpractice defense counsel suits, peer review action defense attorney, whistle blower defense litigation attorney, complex litigation attorney, Medicare audit defense counsel Medicaid audit defense attorney, DEA defense attorney, Centers for Medicare and Medicaid Services (CMS) defense counsel, ZPIC audit defense attorney, RAC audit legal counsel, Department of Health (DOH) investigation defense lawyer
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law Firm. All rights reserved.

Health Care Providers: PLEASE Talk to an Attorney Before You Talk to an Investigator!

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law firm, we often receive calls from new clients and from potential clients, after they have already spoken to and made critical harmful admissions against their own interests to investigators. It is imperative to know that in Florida, you do not have any duty to cooperate with any investigator who is investigating you. This extends to Department of Health (DOH) investigators (who are sometimes titled “Medical Quality Assurance Investigators” or “Medical Malpractice Investigators”), Drug Enforcement Administration (DEA) special agents, police officers, sheriff’s deputies, or criminal investigators of any type.

If you are being investigated, you will NOT be better off making a statement. You will NOT be better off explaining your side of the story. The investigator is NOT your friend. The investigator is NOT on your side.

You have a right under the U.S. Constitution to not make any statement that may be used against you. This is so important that in criminal cases government investigators are required to advise you of this by reciting to you your Miranda rights. To learn more about your Miranda rights, click here to read one of our prior blogs.

Know Your Rights.

In cases where you might have your medical license revoked or have your nursing license revoked or have your DEA number revoked or lose your Medicare provider status or your Medicaid provider status, the investigator is not required to advise you of your rights.

In a criminal case, there may be ways to have your statement thrown out. However, in a professional licensing case or other administrative case, it may be too late to avoid the damage. You may be the best witness the government has and you may be the only witness the government needs to prove this case against you.

In the case where you could receive a $100 criminal fine, the investigators are required to read you your constitutional Miranda rights and to be sure that you understand them before you make a statement. However, in a case where you can lose your professional license, where you could lose your livelihood and ability to make a living, where you could lose everything you have worked so hard to obtain, they are not required to do this. You must protect yourself.

Many health professionals, when confronted by an investigator, who will usually call at a very inconvenient time (to catch you by surprise) and will usually flash a badge (to intimidate you), will refuse to acknowledge the seriousness of the matter and will fall for the bait to “tell their side of the story.” This can be fatal to your defense and fatal to your license.

You Cannot Talk Your Way Out Of It.

Remember, this is the investigators’ job and profession. This is what they do full time, every day. And they are very good at it. They are 1,000 times better at getting you to admit the crucial elements of a disciplinary infraction than you are in “talking your way out of it.” They will not be convinced by any excuses you make. You will help them by talking to them, explaining why your decisions are correct, explaining why what you did is excusable, etc. It will not work. You will merely be giving them enough rope to hang you with.

Hint: If it is a Medicaid Fraud Control Unit (MFCU) special agent (investigator), you are probably under investigation for Medicaid fraud.

Hint: If it is an “auditor,” “surveyor” or “investigator” from an agency or company with “integrity” or “program integrity” in its name, they are probably investigating you for “lack of integrity,” i.e., false claims or fraud.

Hint: If it is a Drug Enforcement Administration (DEA) special agent (investigator) they are probably investigating you to prosecute you or to revoke your DEA registration for drug or prescribing violations.

Hint: If it is an Office of the Inspector General (OIG) special agent (investigator), you are probably under investigation for Medicare fraud or Medicare false claims.

Hint: If it is a Department of Health Quality Assurance Investigator or Medical Malpractice Investigator, they are probably only investigating possible disciplinary action against your license that could result in large administrative fines or revocation of your license.
Do not believe for a second that you are smarter than the investigator. Do not believe for a second that you will convince the investigator (or anyone else) that there is a legal or medical justification for what you did or what they allege. If it were as simple as that, then why would there be an investigation and why would you be the one being investigated?

Additionally, do not believe for a second that you can lie your way out of it, either. Remember, if the government cannot prove the basic offense that it is investigating against you, it may be able to prove that you have committed perjury or lied to an investigator. In the case of a federal official or a federal investigation, merely making a false statement (oral or written) to an investigator is a criminal act. This is what Martha Stewart and many others have served time for in federal prisons.

Keep Silent.

It is much better to make no statement at all. Blame it on your attorney. Tell the investigator that your attorney will kill you if you were to talk to the investigator without your attorney being there ahead of time. “Speak to my attorney.” “My attorney can help you, I can’t.”

Far too often the health professional only calls us after he has given a statement. This is usually too late to avoid much of the damage that will have been be caused. Everything above applies to oral statements or written statements. Do not make either. Contact a lawyer as soon as possible, preferably before making any statement, no matter how simple, defensive, self-serving or innocuous you may think it to be.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals in Criminal Matters and Professional Licensing Matters.

If you have been arrested, it is strongly recommended that you retain an experienced attorney who can advise you on the criminal proceeding, your rights and how it may affect you. Most important to a physician, dentist, nurse, pharmacist or other health professional are what consequences may follow this. Consequences may include loss or suspension of hospital privileges, loss or suspension of your professional license, exclusion from the Medicare Program, termination from the state Medicaid Program, termination from health care insurance panels and other severe consequences.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in criminal defense matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

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.

KeyWords: Right to remain silent, Miranda rights, criminal law defense attorney, health care investigations, investigations against health care professionals, The Department of Health (DOH) investigations, Medical Quality Assurance Investigators, Drug Enforcement Administration (DEA) investigations, medical malpractice investigators, disciplinary actions against health care professionals, health care license defense attorney, physician criminal charges, health attorney, criminal trial, criminal case defense lawyer, Fifth Amendment, plead the Fifth, administrative sanctions, administrative law judges, administrative hearing, administrative trial, administrative proceedings, The Health Law Firm

“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 © 2016 The Health Law Firm. All rights reserved.

Texas Eye Clinic’s Motion For Dismissal in FCA Suit Denied By Federal Judge

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

On May 27, 2016, Outreach Diagnostic Clinic (Outreach), a Texas eye clinic, lost its bid to dodge a False Claims Act (FCA) suit alleging that it billed Medicare for $807,000 in fraudulent reimbursements. A Texas federal judge ruled that the government’s allegations in its complaint are specific enough to allow the case to proceed.

Denied Motion to Dismiss.

U.S. District Judge Lynn N. Hughes, of the U.S. District Court for the Southern District of Texas, in Houston, Texas denied a motion to dismiss from Outreach Diagnostic Clinic which claimed that the government didn’t provide enough facts in its complaint to support the claim that it had violated the FCA. Judge Hughes said that the scheme outlined within the complaint alleging that Outreach doctors knowingly submitted false glaucoma test claims to Medicare provided enough detail to proceed.

“While this claim for fraud has a heightened pleading standard, it is not so high as to require the government to prove its case as it would at trial,” Judge Hughes wrote. “The government describes a scheme, when it was done, who participated in it and how they tried to cover their tracks.”

The Whistleblower Complaint.

The FCA suit accuses Outreach of submitting more than 14,450 claims for tests that were never performed worth more than $807,000. The claims were from February 2006 through December 2011 and Outreach is accused of committing FCA violations as well as common law fraud and unjust enrichment.

The case originally came about in February 2012 with a sealed whistleblower complaint from a former Outreach optometrist. In the complaint, the whistleblower alleges that he was told to submit false claims to Medicare for glaucoma screening tests.

The government filed a complaint in intervention in June 2015, accusing Outreach’s owner and medical director of conspiring to bilk Medicare by billing for tonography tests, despite the fact they did not have the equipment required to perform the tests. To read more on the original whistleblower suit, click here.

To read the complaint from the U.S. Department of Justice (DOJ), click here.

In July 2015, Outreach urged the court to dismiss the government’s case, saying that its argument failed to provide enough facts to state a claim under the FCA, and instead relied on vague allegations according to its motion to dismiss.

In the order on May 27, 2016, Judge Hughes agreed with the government and said that it met the heightened pleading standards for FCA allegations.

To read the order for dismissal, click here.

To read one of my prior blogs on fraudulent billing, 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 ophthalmologists and other 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.

Source:

Daniels, Melissa. “Texas Eye Clinic Can’t Dodge Medicare Billing FCA Suit.” Law360. (May 27, 2016). Web.

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.

KeyWords: U.S. Department of Justice (DOJ), False Claims Act (FCA), OIG defense attorney, flagged for questionable billing, billing Medicare for ophthalmology services, Medicare audits defense lawyer, Medicare defense attorney, ophthalmologist defense attorney, health law attorney, eye specialist defense lawyer, potential indicators of fraud, Medicare fraud defense lawyer, Medicare payment flags, False Claims Act suit, health law, The Health Law Firm

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 © 2016 The Health Law Firm. All rights reserved

Insurance Audits: An Eye-Opening Experience for the Unprepared Health Professional

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Guests dropping by unannounced can be a stressful experience for any surprised host. Many would agree that the worst unannounced visitor of all, is the insurance plan auditor. This unannounced “guest” is looking to scrutinize your office policies, patient records, and billing files to uncover evidence of practices worthy of disciplinary action or large monetary recoveries.

Optometrists and ophthalmologists have very different audit experiences in comparison to other types of health care professionals. Third party payers, typically Vision Service Plan (VSP), perform the audits of vision care practices. Third party payers have recently increased the frequency of such audits.

Although in this blog we are speaking in reference to one particular plan, Vision Service Plan, these comments apply to all health insurers and plans and not just the one. Below is what you need to know to prepare yourself and your practice.

Two Different Types of Audits.

Like most health care audits, the objective of audits is to identify lapses in compliance with industry rules and regulations in areas such as billing, filing, and general business practices. Unlike for some governmental payors, vision plans will commonly perform routine audits to ensure quality control as well as compliance with billing procedures and documentation requirements. Eventually the auditing company will review each doctor about once every five years, as suggested by the National Committee for Quality Assurance Standards. Rules change frequently without warning, so it’s critical to stay up to date on the latest compliance rules and regulations, as well as any changes or amendments to your contracts.

Audits can take place in two very distinct formats. The most common audit is the routine quality control audit. A practitioner will be asked to submit a small number of randomly selected patient records. These records will be reviewed by the Quality Control Unit (or similar division) that will issue a report of the audit results. If issues are noted in the audit, the results may require the health provider to propose and submit a corrective action plan (CAP) identifying the necessary corrections required to address issues noted in the audit. These audits can be expected from time to time for just about all practicing optometrists and ophthalmologists.

The second type of audit is typically ordered when major patterns of inconsistency or billing irregularities are noted in an initial quality control audit. A “targeted audit” may be performed by the plan’s “special investigations unit/SIU” or similar unit, and is almost always unannounced. The SIU investigator will usually show up at an office and request on the average 30 to 50 records. These records are not randomly selected, but rather, are related to one or more areas of interest or irregularity. These audits are conducted to obtain evidence of suspected violations when it is already believed that rules are being broken.

How to Avoid Negative Audit Results.

A targeted audit can be triggered by a multitude of red flags. Disgruntled present or former employees who make a complaint, patients who make a complaint, or even a complaint made by a competitor can lead to a surprise in-office visit from an investigator. In addition, many questionable billing patterns noted by an auditor during a routine quality control audit can initiate 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. Billing for more expensive products than you have in inventory may also cause you problems.

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 at the time of the patients visit. This will show the auditor you gave sufficient consideration during the exam to conclude a diagnosis. The more documentation you have the better and 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 an audit is not providing copies of all relevant information and keeping an exact copy for themselves. 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 the auditor copies of everything.

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 may state that you passsed the audit with flying colors and do not owe the plan anything. The letter may ask for a refund of amounts determined to have been overpaid. The letter may give notice that the plan is terminating your provider agreement. The letter may state both of the immediately foregoing, requesting repayment and terminating your contract.

In any event, we strongly recommend that you review any such audit results immediately with an experienced health care lawyer.

You may be offered the option of a consent decree or a corrective action plan (CAP). The CAP was discussed above and is also rather self-explanatory. In a consent decree, you may be given a probationary time period in which the plan 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 section called “Fair Hearing Plan” or “Hearing Rights.” You will only have a short period of time to file an appeal should you so desire, usually 30 days or less. During this process, if the audit letter demands a repayment, the plan will usually immediately start withholding these from any funds the plan owes you.

An appeal will be conducted through an internal peer review hearing before a panel appointed by the plan. Often this will be called the “Quality Control Panel” or the “Ad Hoc Committee” or some similar name. 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 individuals selected by the plan, 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.

Click here to read one of my prior blogs on the audit process and its repercussions.

Don’t Wait Until It’s Too Late.

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. If the action taken against you is considered to be adverse “peer review action” taken by a health care plan, it may be reported to the National Practitioner Data Bank (NPDB). If so, this remains on your professional file for life (actually only 50 years). You may also be reported to your state the board of optometry or licensing agency, 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 insurance plan audit can cause.

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

The Health Law Firm’s attorneys routinely represent ophthalmologists, optometrists or other health professionals in payer 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: 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.

KeyWords: Audit, Office Billing, Ophthalmologist, Ophthalmology, Optometry, Vision Service Plan, Vision Service Plan Audit, Audits, corrective action plan, defense attorney, defense lawyer, ophthalmologist, ophthalmologist attorney, ophthalmologist audit, ophthalmologist lawyer, Optometrist, optometrist attorney, optometrist audit, optometrist lawyer, Optometry, routine quality control audit, targeted audit, vision law, Vision Service Plan (VSP), Vision Service Plan Audit, VSP audit, VSP auditor, VSP defense attorney, VSP defense lawyer

“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 © 2016 The Health Law Firm. All rights reserved.

Optometrists and Opticians Should Carry Insurance That Covers Complaints Against Their Professional Licenses

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

Health care professionals, especially optometrists and opticians, sometimes have difficulty hiring an experienced attorney in Florida to defend them after they receive a complaint regarding their license from the Florida Department of Health (DOH). To me, this is the main reason that they should be sure that their professional liability insurance policy covers the payment of all legal defense fees and expenses for a complaint against their license. They should also be certain that it provides at least $25,000 of coverage as $5,000 or $10,000 in coverage just isn’t sufficient in most cases.

For example, one insurer that we deal with frequently that does provide coverage for license complaints is Healthcare Providers Service Organization (HPSO) Insurance. Although we deal with several different insurers which cover professional licensure defense costs for their insureds, HPSO is probably the one we deal with most often. It provides good coverage for professional licensure defense, even if the complaint is completely unrelated to any civil law suit or claim for malpractice.

Legal Fees are Expensive, Having Good Insurance Helps.

The health care professionals who are covered by HPSO Insurance have excellent coverage. HPSO Insurance does provide professional liability coverage that protects in the event of a lawsuit or negligence claim against you. However, much more often than a claim for damages, the health care professional receives a notice of an investigation, a subpoena for a deposition in someone else’s case, a demand because of an allegation of sexual harassment, a complaint due to a breach of medical records confidentiality or Health Insurance Portability and Accountability Act (HIPAA) Privacy complaint, or some other administrative type of action.

HPSO provides great coverage for all of these situations. For example, HPSO currently reimburses up to $10,000 in legal fees and expenses just for representation at depositions. HPSO reimburses up to $25,000 in legal fees and expenses for your defense in a DOH or Agency for Health Care Administration (AHCA) notice of investigation or complaint. HPSO also reimburses up to $25,000 in legal fees and expenses for legal representation in defense of a complaint or investigation regarding breach of medical confidentiality.

If you are an optometrist, optician, pharmacist, massage therapist, mental health counselor or social worker, physician assistant, optometrists, own an assisted living facility (ALF), or you are one of the many other types of health care professionals who HPSO insures, it should be fairly easy to find experienced health lawyers to represent you in Florida.

The Health Law Firm and its attorneys, routinely represent licensed health care professionals, interns and students in all types of administrative investigations and hearings and in defending lawsuits and other actions that have been filed. We also represent health facilities in license defense and administrative hearings. We offer representation throughout Florida, and also occasionally represent professionals in other states, as well. At The Health Law Firm, we accept HPSO Insurance assignments.

Don’t Wait Until It’s Too Late, Get Insurance Coverage Now!

It is very important for every health care professional to have insurance that covers any investigation, complaint or administrative hearing that might be filed or opened against your license. Many people make the mistake of assuming they are covered for this by an employer, but that is not the case. If your employer contradicts this, request a statement in writing that your employer will pay for your legal defense for any such matter arising during your time of employment.

What we typically see, especially in the case of a hospital employee, nursing home employee, pharmacy employee or corporate employee, is that the employer is the one who terminates the employee and then proceeds to file a complaint with the DOH. The DOH then opens an investigation against the health care professional. The employer is not going to pay your legal defense costs if the employer is the one that reported you!

You may very well end up out of work, out of money and face an investigation and complaint that could terminate your professional license and career. You should never take this chance. Insurance such as HPSO Insurance is inexpensive and reliable, buy it while you can afford it. After the actions have occurred, it is too late.

Talk to an Experienced Health Law Attorney if an Investigator Contacts You.

You should immediately contact an experienced health law attorney if you are contacted or visited by any investigator, or if you receive a letter advising you that an investigation has been opened against you. Call an experienced health law attorney immediately before you speak with an investigator or provide any documents or statements of any kind.

You cannot and should not seek “legal advice” on what to do from the investigator, DOH employee, professional board or from any attorney representing any of them. They are not on your side, you should definitely not take any advice from them.

Thoroughly Read and Understand Your Insurance Policy.

When you have good insurance, it will pay for your legal expenses from the very beginning. However, beware of cheap insurance policies from professional associations that do not provide any coverage for disciplinary complaints and licensure investigations. Always double check to be sure this is covered and get it in writing as an extra precaution. With some insurance companies, you have to pay an extra premium to obtain this coverage. With some insurers, they do not offer it and you have to purchase a completely separate policy to cover this. It is worth it and will save you money! Do it!

For more information on HPSO insurance and how The Health Law Firm can assist you, click here.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

Our firm regularly represents physicians, dentists, nurse practitioners, pharmacists, massage therapists, mental health counselors, registered nurses (RNs), assisted living facilities (ALFs), home health agencies, nurse practitioners, lab technicians, occupational therapists, physical therapists, social workers, physician assistants, psychologists and other health professionals in many different legal matters.

Services we provide include representation before your professional board in DOH investigations, in administrative hearings, in civil litigation, in defense of malpractice claims, in professional licensing matters, in defense of allegations concerning HIPAA privacy violations and medical record breaches, in Drug Enforcement Administration (DEA) actions, and in many other matters.

In cases in which the health care professional has professional liability insurance or general liability insurance which provides coverage for such matters, we will seek to obtain coverage by your insurance company and will attempt to have your legal fees and expenses covered by your insurance company. If allowed, we will agree to take an assignment of your insurance policy proceeds in order to be able to submit our bills directly to your insurance company. We also defend health professionals and health facilities in general litigation matters and business litigation matters.

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.

KeyWords: administrative attorney, administrative complaint, administrative hearings, administrative lawyer, Agency for Health Care Administration (AHCA) investigation, AHCA complaint, defense attorney, defense lawyer, DOH investigation, breach of medical records confidentiality, HIPAA complaint, administrative investigations, legal representation for optometrists, legal representation for health care professionals, experienced health attorney Florida, experienced health lawyer Florida, Florida defense attorney, Florida Department of Health (DOH), Florida license defense, health facilities, health care professionals, Healthcare Providers Service Organization (HPSO) Insurance, professional liability insurance, health law, The Health Law Firm

“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 © 2016 The Health Law Firm. All rights reserved.

Florida Ophthalmologist Involved in Senate Bribery Case Defends Medicare Billings

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

On February 12, 2016, a Florida ophthalmologist accused of bribing his friend, U.S. Sen. Robert Menendez, said that separate allegations against him for Medicare fraud should be dismissed. Dr. Salomen Melgen was accused of using one single-dose vial of the wet macular degeneration drug Lucentis on multiple patients at his clinic called Vitreo-Retinal Consultants. He then allegedly billed Medicare as if he used one vial per patient resulting in charges that he was defrauding the government of about $105 million. Dr. Melgen claims this practice was legal stating: “By suggesting that multi-dosing is improper, the indictment is completely at odds with eminently defensible and extensively litigated interpretations of multi-dosing Medicare policy.”

To read more on Dr. Melgen’s case, click here.

Multi-Dosing Allegations.

Dr. Melgen is accused of improperly muli-dosing with the drug Lucentis and then submitting false claims to the government. The Medicare administrative contractor (MAC) for Florida, First Coast Service Options, Inc.(First Coast), alleges that Dr. Melgen’s actions were improper stating: “As approved by the FDA, and as required in the First Coast LCD [local coverage determination] for Lucentis, each vial is to be used for the treatment of a single eye only. Any excess fluid or overfill is to be discarded.”

However, First Coast later made a statement in a clarification to its LCD for Lucentis which said, “that physicians may choose to multi-dose Lucentis by administering a ‘single-use vial’ of Lucentis for three patients,” the motion states.

Medicare Charges “At Cost”.

According to the motion, the indictment in April makes multiple legally incorrect assertions about how Dr. Melgen administered and billed for the use of Lucentis. Physicians are allowed to charge Medicare as much as they want, not necessarily just “at-cost.” However, Medicare does not have to reimburse that full amount. To read more about his indictment, click here.

To read a prior blog I wrote on a similar case, click here.

Denying the Allegations.

Dr. Melgen has pled not guilty and rejects the government’s claims. In his motion to dismiss it states, “the Centers for Medicare & Medicaid Services (CMS) was obliged to pay Dr. Melgen for each unit of Lucentis that he administered, regardless of exactly what it cost him. Therefore, contrary to the indictment’s allegations, Dr. Melgen did not and could not defraud Medicare by submitting fraudulent Lucentis invoices for amounts that substantially exceeded his actual cost.”

This actually could be a good argument and he may have a good defense for any claims he submitted before First Coast published its clarifications.

Dr. Melgen reached an $18 million bond agreement in July over the charges.

To read the motion for dismissal, click here.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare 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.

Sources:

Kass, Dani. “Doctor Tied To Sen. Bribery Case Defends Medicare Billing.” Law360. (February 17, 2016). Web.

Iannelli, Jerry. “INFAMOUS EYE DOCTOR SALOMON MELGEN LEFT PATIENTS BLIND, LAWSUIT SAYS.” New Times Broward Palm Beach. (January 24, 2016). Web.

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. The Health Law Firm has a national practice. Visit our website at: www.TheHealthLawFirm.com . The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, FL 32714, Telephone: (407) 331-6620.

KeyWords: Medicare billing, Medicare fraud, improper billing, submitting false claims, False Claims Act (FCA), Centers for Medicare & Medicaid Services (CMS), multi-dosing, multi-dosing Medicare policy, Medicare reimbursements, motion for dismissal, Medicare investigations, Medicare audits, compliance, Medicare defense lawyer, false claims defense lawyer, fraud defense lawyer, health care attorney, health law attorney, Florida health law attorney, health law, The Health Law Firm

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 © 2016 The Health Law Firm. All rights reserved.

Helpful Tips For Avoiding HIPAA Violations on Social Media

5 Indest-2008-2By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Digital mediums are a popular great way to connect, but they can also pose a great risk for Health Insurance Portability And Accountability (HIPAA) violations. When it comes to guarding against accidental revelations of patient identity and sensitive information, Ophthalmologists, Optometrists and all medical staff should adopt various measures to protect themselves.

In this day and age, almost everyone has some type of social media platform. Don’t end up like many health care providers who find themselves chastised, fined and fired over HIPAA violations due to common mistakes.

Protect Yourself and Your Practice.

All ophthalmologists, optometrists and medical staff should take the following steps to protect against HIPAA violations due to social media:

-Keep personal social media accounts separate from professional accounts;

-Avoid requesting or accepting friend requests from patients or professional associations;

-Be aware that even posts that have been deleted can still exist in cyberspace;

-Be aware that posts on a private personal page can be accessed by users who are not friends or followers;

-HIPAA lists 18 identifiers including photos, neighborhoods, birth dates and vehicle identifiers. All of these must stay private. Small details can reveal patient identity, especially in small communities;

-Even if a patient posts personal medical information, no health care professional can re- post any information;

-You do not have the right to take or post any image of your patients;

-You are required to report any breach of privacy committed by any fellow employee.

For more tips on social media for health care providers, click here.

Guidelines for Appropriate use of Social Media and Social Networking.

Ophthalmologists and Optometrists are discouraged from interacting with current or past patients on personal social networking sites. Online interaction with patients should only occur when discussing the patient’s medical treatment within the physician-patient relationship. These interactions should never occur on personal social networking or social media websites.

Patient privacy must be protected at all times, especially on social media and social networking websites. Breaches in patient confidentiality could be harmful to the patient and in violation of federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996 and applicable state privacy laws.

Failure to Comply With HIPAA Can Result in Both Civil and Criminal Penalties.

There has been an increase in penalties regarding HIPAA violations. With an increase in the popularity and availability of social media platforms, also comes an increase in potential privacy violations. To read a previous blog I wrote on this, click here.

Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in Defending HIPAA Complaints and Violations.

The attorneys of The Health Law Firm represent ophthalmologists, optometrists and other health care providers and institutions in investigating and defending alleged HIPAA complaints and violations and in preparing Corrective Action Plans (CAPs).

For more information about HIPAA violations, electronic health records or corrective action plans (CAPs) please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Veatch, Kyna. “A Checklist For Avoiding HIPAA Violations.” Law360. (January 8, 2016). Web.

Martin, Jonathan. “Tips on social media for health care providers.” Law360. (January 8, 2016). Web.

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.

KeyWords: Health Insurance Portability and Accountability Act (HIPAA), HIPAA Omnibus Rule, HIPAA compliance, data security, protected health information (PHI), Patient privacy, U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), patient rights, HIPAA compliance audit, HIPAA violation, penalties for HIPAA violation, criminal penalties for HIPAA violation, civil penalties for HIPAA violation, HIPAA compliance, privacy, defense attorney, defense lawyer, Medicare exclusion, HIPAA defense attorney, HIPAA violation help, American Recovery and Reinvestment Act of 2009 (ARRA), Department of Justice (DOJ), HIPAA attorney, HIPAA lawyer, compliance plans, health law firm, The Health Law

“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 © 1996-2016 The Health Law Firm. All rights reserved.