Mentally Ill Inmate Gouges Out Own Eyes, Sues County for Negligence

7 Indest-2008-4By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 7, 2017, a mentally ill inmate in the Boulder, Colorado, jail sued Sheriff Joe Pelle in federal court, claiming that the jail staff failed to stop the man from using his fingers to gouge out his own eyes after several prior attempts to do so. Ryan Partridge sued Pelle and 21 other jail employees in U.S. District Court in Denver. He claimed that he blinded himself because they failed to heed warning signs to treat his mental illness, according to the civil lawsuit filed by Denver civil rights attorneys David Lane and Kathryn Stimson.

Inmate Negligence.

The inmate, who is now blind and suffers from deep, severe schizophrenic psychosis, is seeking monetary awards for negligence, including compensatory damages for physical and psychological injuries including pain and emotional distress and humiliation. He suffers from auditory and visual hallucinations, delusions and paranoia, according to the lawsuit.

On December 17, 2016, Partridge curled up in a ball in his cell with fingernails that hadn’t been cut for six weeks and plucked both of his eyes “completely out of his head,” the lawsuit says. The lawsuit also says jailers failed to respond to a series of precursor events in which the inmate said he would gouge his eyes out. In early 2016, he banged his head into his toilet, breaking seven teeth, the lawsuit says. Additionally, there were several prior attempts by the inmate to committed suicide.

Shane McGurk, the jail’s mental health program director, sought an emergency court order to get him psychiatric treatment. The judge ordered deputies to immediately take him to get psychiatric treatment. However, according to the lawsuit, the orders were ignored and the “Defendants’ willful and deliberate indifference to Mr. Partridge’s serious medical needs directly led to his self-mutilation, head and vertebrae injury, broken teeth and ultimately, to his permanent blindness.”

The jail failed to properly train officers in how to care for a mentally ill inmate, the lawsuit said.

This is not the first time an inmate or their families have sued for improper care during incarceration. Click here to read one of my prior blogs on a similar case.

It is an unfortunate reality that our society today tends to ignore citizens with true and severe mental health illnesses, choosing to treat them as criminals, instead. Instead of allocating funds for treatment, acting in a preventative manner, it prefers to spend the money for prisons and paying for incarceration. This is a complete shame. This poor, mentally ill individual suffers the consequences. Unfortunately, the officials who run our jails and prisons also suffer by being the treater of last resort, which is grossly unfair to them, as well. Our jail and prison officials should have a “safety relief valve” available to them where they can divert individuals who have been incarcerated because of their mental illnesses and obtain appropriate treatment for them.

Providing Representation For All Health Care Professionals.

Our firm has represented a number of nurses, physicians and other health care professionals who provide care in jails and prisons, as well as in other government facilities and institutions. We routinely represent physicians, nurses and advance practice nurses who work for the VA, the Department of Health, the county, the military, the Indian Health Service and other government agencies. Although government employees may have personal immunity from civil suits, they are not protected against termination and other employment actions, complaints against their professional license, National Practitioner Data Bank reports, and other types of administrative actions; our firm represents them in all of these. The government is not going to represent you in these. Call us at the first sign of a legal problem.

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

Sources:

Mitchell, Kirk. “Mentally Ill inmate sues for negligence.” The Denver Post. (December 8, 2017). Web.

Mitchell, Kirk. “Psychotic Boulder jail inmate gouges out own eyes, sues county for negligence.” The Denver Post. (December 7, 2017). 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: Legal representation for government physicians, legal representation for government nurses, legal representation for mental health professionals, mental health defense attorney, legal representation of mental health counselors, mental health counselor defense attorney, legal defense of professional licensure cases, legal representation for Board of Nursing cases, legal representation for Board of Medicine cases, Board of Nursing investigation defense attorney, legal representation for peer review, legal representation for administrative actions, legal representation for health care professionals, legal representation for psychiatrists, psychiatrists defense attorney, defense counsel for mental health professionals, health care lawyer, The Health Law Firm reviews

“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 © 2017 The Health Law Firm. All rights reserved.

Advertisements

Florida Senate Health Committee Approves Change In Optometrist Certification

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 December 5, 2017, the Florida Senate Health Policy Committee approved a bill that would allow the Florida Board of Optometry to offer practical and written “certification” examinations to applicants. The bill would assist optometrists who were licensed before July 1993 and, therefore, were not required to be “certified.”

Certified vs. Licensed.

In Florida, the law allows certified optometrists to prescribe pharmaceuticals for the treatment of glaucoma. However, licensed optometrists who aren’t certified cannot prescribe those drugs. They are required to make the public aware by posting in their offices a sign that states, “I am a Licensed Practitioner, not a Certified Optometrist, and I am not able to prescribe ocular pharmaceutical agents.”

Applicants are required to submit proof to the Department of Health (DOH) that she or he meets certain requirements and pass an exam within a specified time frame if they wish to be certified.

The Senate Health Policy Committee unanimously approved the bill (SB 520). To read more on SB 520, click here.
To stay on top of news and regulations for optometrists, check our Vision Law Blog regularly.

 

Contact Health Law Attorneys Experienced in Representing Optometrists.

The attorneys of The Health Law Firm provide legal representation to optometrists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, contract matters, business law matters, business litigation 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:

Miller, Daylina. “Panel Approves Change In Optometrist Certification.” Health News Florida. (December 6, 2017). Web.

“Panel Approves Change In Optometrist Certification.” WLRN TV. (December 6, 2017). Web.

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

KeyWords: Legal representation for optometrists, optometrist defense attorney, ophthalmologist defense attorney, legal representation for eye doctors, medical license defense attorney, optometry license defense attorney, legal representation for optometry licensure issues, Board of Optometry investigation defense attorney, legal counsel for Board of Optometry investigations and hearings, Board of Medicine investigation defense attorney, legal counsel for Board of Medicine investigations and hearings, Department of Health investigation defense attorney, legal counsel for Department of Health investigations and hearings health care professional defense attorney, legal representation for medical professionals, Florida health law attorney, informal administrative hearing defense attorney, informal administrative hearing defense lawyer, informal administrative hearing defense legal counsel, complaint against professional license defense attorney, complaint against professional license defense lawyer, legal representation for Optometrists in Florida, The Health Law Firm, reviews of The Health Law Firm, The Health Law Firm attorney reviews, health law defense attorney, legal representation for health care professionals, complex health litigation defense attorney, complex health care litigation legal counsel

“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 © 2018 The Health Law Firm. All rights reserved.

Florida Woman Lands Herself 6.5 Years in Prison, Owes $45 Million for Medicare Fraud Scheme

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 22, 2017, a Florida woman who was accused of a $45 million Medicare fraud, received a six-and-a-half-year prison sentence, following a 2016 U.S. Supreme Court decision in her case holding that the government could not freeze untainted assets.

Sila Luis received an 80-month prison sentence in addition to being ordered to pay $45 million in restitution.  This came after a 2016 guilty plea to a charge of conspiracy to commit health care fraud. Her case continued in 2017 following a 5-3 ruling by the Supreme Court holding that the government could not freeze assets belonging to her that were not tied to the alleged fraud scheme.  This decision has the effect of making it more difficult for law enforcement authorities to swoop in and seize all assets of a suspect, effectively depriving them of the resources to even hire an attorney (which is a common tactic in such cases).

“Innocent” Property Can’t Be Seized.

In the 2016 Supreme Court decision, Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, voted to overturn the Eleventh Circuit Court of Appeals decision that the government could freeze Luis’ “innocent” assets as well as the ones directly traceable to the Medicaid fraud funds.  Justice Clarence Thomas concurred in a separate opinion.

“We conclude that the defendant in this case has a Sixth Amendment right to use her own ‘innocent’ property to pay a reasonable fee for the assistance of counsel,” Justice Breyer wrote for the plurality. “On the assumptions made here, the district court’s order prevents Luis from exercising that right.”

Under federal statute, the government is allowed to freeze some assets before trial in criminal cases alleging federal health care or banking violations, according to the ruling. However, the Justices agreed with the defendant that the freeze o f all her assets kept her from paying her attorney.  This by itself will usually force a guilty plea even from someone who may be innocent.

Prior to her guilty plea, she was accused of Medicare fraud and Anti-Kickback Statute violations allegedly through paying patients.  She allegedly paid the patients to use one of her home health companies so that she could bill the government for unnecessary or unprovided services.  To read more on the U.S. Supreme Court’s decision, click here.

To read the judgement of the case in full, click here.

To read about another case of Medicare fraud in Florida, click here to read one of my prior blogs.

My Observations on this Case.

The power of pretrial seizure of assets is a very heavy handed tactic that I have seen used a number of times by law enforcement authorities, often, in my opinion, completely wrongfully.  In some cases it is used as a hammer to try to bludgeon the suspect to death.  In others it may be motivated by something as simple as a sheriff’s deputy deciding he really liked the defendant’s car and wanted to seize it.  I have seen the bank accounts of minor children sized when all they contained was what the child had worked for at a part time job to help pay for college.  I have seen an annuity fund seized which had been paid for ten years before any of the criminal activity allegedly took place.  I have seen cash taken from a mother (the wife of the alleged suspect) going into the delivery room at a hospital to give birth, when the cash had just been given to her by her mother to pay the hospital bill. I have seen law enforcement hold out in negotiations to return wrongfully seized property because what they really wanted was the suspect’s new Cadillac to use. Pre-trial seizure is an extremely powerful tool that can be easily misused.

So I can understand the U.S. Supreme Court’s decision in this case. On a slightly different topic however, I never cease to wonder at the small (relatively speaking) sentences that are given to the largest crooks.  I have seen poor people who could not feed their families sentenced to similar prison terms for merely a few thousand dollars in Medicaid or food stamp fraud.  Yet here someone bilks us, the taxpayers, out of $45 million and only gets only 80 months?  Let’s see.  That’s getting paid $562,500 per month for every month in jail.  Gosh, I bet there are some pretty rich people around who don’t make $562,500 a month. Typically, we find out that these people have their millions stashed overseas in secret foreign bank accounts.  Do several years in prison, get out, and then vanish overseas to Cuba or elsewhere and live like a king (or queen) for the rest of their lives.  The story seems to happen over and over again.

Maybe the key should be to make the sentencing guidelines give one month of prison times for every one hundred thousand dollars stolen.  Then reduce that prison time by one month for every one hundred thousand dollars that is paid back in restitution.  This promotes prompt restitution while ensuring that the convicted defendant does not get out only to flee somewhere to enjoy their stash of hidden funds.  This means, of course, that the Bernie Maddofs never get out (as should be the case), but at least the smaller offenders are nor being punished disproportionately to the larger ones.

Health Care Fraud Should Not Be Taken Lightly.

We have been consulted by many individuals, both before and after criminal convictions for fraud or related offenses.  In many cases, those subject to Medicare fraud audits and investigations refuse to acknowledge the seriousness of the matter.  Some may even decide not to spend the money required for a highly experienced health attorney to defend them.

Click here to read one of my previous blog posts regarding Medicare audits.

The government is serious about combating health care fraud.  It created a Medicare Fraud Strike Force in March of 2007, in an effort to further prevent and eliminate fraud and abuse of government health care programs.  False claims are a growing problem in the program, costing the government billions of dollars each year.  Accordingly, punishments for defrauding the system can be quite severe.

If you have assets seized by state or federal law enforcement authorities, you must act immediately to start the proceedings to have them released or you may forfeit them.  There are often a number of valid defenses to have your property released.  The Health Law Firm represents individuals, spouses and families in obtaining the release of “forfeitures” and seized property and funds.

If you are accused of Medicare or Medicaid fraud, realize that you are in a fight for your life.  Your liberty, property/possessions and profession are all at stake.  Often it is possible to settle allegations of Medicare fraud by agreeing to pay civil monetary penalties and fines.  If given such an opportunity, the Medicare provider should consider whether it is worth the risk of facing decades in prison.  Be prepared to give up whatever you need to in order to avoid a conviction and preserve your liberty.

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 or (850) 439-1001.

Sources:

Macagnone, Michael. “Fla. Woman Gets 6.5 Years, Owes $45M For Medicare Fraud.” Law360. (November 22, 2017). Web.

Koenig, Bryan. “High Court Determines ‘Untainted’ Assets Can’t Be Frozen.” Law360. (March 30, 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: Legal representation for Medicare fraud, legal representation for health care fraud, legal representation for Medicare audits, Medicare audit defense, legal representation for Medicare billing, health care clinic fraud audit, Medicare fraud defense attorney, health care fraud defense lawyer, health care fraud scheme, Medicare fraud scheme, civil forfeiture defense attorney, The Health Law Firm, legal representation for Medicare fraud investigation, civil forfeiture defense lawyer, legal representation for fraudulent billing, legal representation for improper billing, restitution for health care fraud offense, Medicare reimbursement claims, improper Medicare billing claims, false claims defense attorney, legal representation for Anti-Kickback Statute (AKS), AKS defense attorney, legal representation for accepting kickbacks, The Health Law firm attorney reviews, reviews of 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 © 2017 The Health Law Firm. All rights reserved.

 

 

The 20 Major Mistakes Physicians Make After Being Notified of a Department of Health Investigation

6 Indest-2008-3By 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 physician’s license to practice, 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 physician who receives it. Yet, in many cases, attorneys are consulted by physicians after the entire investigation is over and the damage is already done. Often, the mistakes that have been made severely compromise an attorney’s ability to achieve a favorable result for the physician.

These are the ten biggest mistakes we see in the physician cases we are called upon to defend after a Department of Health investigation of them is commenced:

1. Contacting the Department of Health (DOH) investigator and providing him/her an oral statement or oral interview.

2. Making a written statement in response to the “invitation” extended by the DOH investigator to do so.

3. Providing a copy of their curriculum vitae (CV) or resume to the investigator because the investigator requested them to do so.

4. Believing that if they “just explain it” the investigation will be closed and the case dropped.

5. Failing to submit a timely objection to a DOH subpoena, when there is a subpoena, and there are valid grounds to do so (e.g., patient does not want records released, patient privacy).

6. 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.

7. 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.

8. Failing to keep an exact copy of any document, letter or statement provided to the investigator.

9. Believing that the investigator has knowledge or experience in the medical or health care matters being investigated.

10. Believing that the investigator is merely attempting to ascertain the truth of the matter and, if the truth is known, this will result in the matter being dismissed.

11. Failing to check to see if their medical malpractice insurance carrier will pay the legal fees to defend them in this investigation.

12. Believing that because they haven’t heard anything for six or eight months (or even years in some instances) that the matter has “gone away.”

13. Believing that the case is indefensible so there is no reason to even try to advocate for getting it dismissed.

14. 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.

15. 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 the Board of Medicine for a decision.

16. Taking legal advice from their non-lawyer colleagues regarding what they should do in defending themselves in the investigation.

17. Attempting to defend themselves without the assistance of an attorney.

18. Believing that, because they know someone on (or previously on) the Board of Medicine, with the Department of Health or a state legislator, that influence can be exerted to have the case dismissed.

19. Providing copies of medical records to the DOH Investigator and signing a “Certificate of Completeness” so that the DOH can use these against them in its future disciplinary proceedings against them.

20. Failing to immediately retain the services of a health care attorney who is experienced in such matters to represent them and to communicate with the DOH investigator for them.

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.

To learn more about how The Health Law Firm can assist you if you are being investigated by the DOH, click here.

Contact Health Law Attorneys Experienced with Department of Health Investigations of 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 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. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Legal representation for Department of Health (DOH) investigations, DOH attorney, DOH investigation attorney, DOH defense attorney, Legal representation for DOH complaints, legal representation for licensure issues, legal representation for health care professionals, DOH complaint attorney, legal representation for Board of Medicine investigations, Board of Medicine attorney, Board of Medicine investigation attorney, Board of Medicine defense attorney, legal representation for Board of Medicine complaints, legal representation for licensure issues, legal representation for physicians, Board of Medicine complaint attorney, health law attorney, health law defense attorney, legal representation for physicians, doctor attorney, legal representation for complaints against physicians, The Health Law Firm, Florida health law defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“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 © 2017 The Health Law Firm. All rights reserved.

 

 

 

20 Tips Plus a Bonus for Physicians Negotiating Their Own Employment Contracts

4 Indest-2009-3By 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 physicians and health professionals about reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, voiding contracts, getting out of contracts and litigating various contract provisions. Physicians and other health professionals should understand the common language and terms found in employment contracts for professionals so they can recognize mistakes commonly when negotiating them.

Our comments here are meant to provide general tips we have learned from our experience. However, please remember, every situation is different and there are exceptions to every rule. I have added a “bonus tip” here, because of recent problems our clients have had.

“Bonus Tip;” The Prime Directive.

My primary tip, and I would say it is the most important, is to know the persons and parties with whom you are contracting and be sure the contract contains that information. Make sure you know the complete name and residence address of the principal person with whom you are dealing. Then be sure you know the complete information on any business entity with which you are dealing, including state of incorporation (or organization), shareholders (or “owners” or members), and address of its main headquarters (principal place of business). If other business entities are the shareholders, owners or members of the entity for which you will be working, you need to find out the same information for each of them. Make sure they are all authorized to do business in your state and have the appropriate licenses that your state requires.

In Florida, any medical business that is not actually 100% owned by Florida licensed physicians or health professionals must have a Health Care Clinic license issued by the Florida Agency for Health Care Administration. Dental practices and optometry practices cannot be owned by anyone who is not licensed to practice dentistry in the state of Florida. Some unscrupulous business people attempt to skirt the law by setting up phoney or “straw man” owners that are physicians or dentists. This is illegal, a felony in many cases, so be cautious. My advice would be not to sign up with a business entity that has been created solely for the purpose of contracting with you and which has no assets. This has been a real problem, lately.

20 More Tips.

The following are a few tips for any physician who is involved in negotiating his or her own employment agreement.

1. There is no such thing as a “standard physician employment agreement.”

2. Everything is negotiable.

3. Be sure the wording of the contract represents exactly the agreement you made. If it is different or not specified, the language in the contract will govern in any future dispute.

4. Be sure that every blank in the contract is completed and filled in before you sign.

5. Be sure that every Exhibit, Addendum or Schedule referred to in the contract is completed and attached before you sign.

6. Shun “legal” advice from your peers and, especially, from the accountants and representatives of your future employer. Misinformation about legal issues abounds. Just because one court may have decided a legal issue a certain way in one case in one state does not mean a different court would not reach a different decision, even in the same state or county. Every set of facts and circumstances, every contract and every case are different.

7. Obtain and review copies of every document referred to in the agreement. These are considered part of the agreement. These may include the practice’s policies and procedures, the employee handbook, a code of conduct, sexual harassment policy, compliance agreements, etc. Keep these in a file with a copy of your contract.

8. Carefully consider clauses that allow the employer to terminate the agreement without cause on a 30 day, 60 day, 90 day or 180 day notice. With such a clause in your contract, you no longer have a one year or two year agreement. Instead, you have a 30 day, 60 day, 90 day or 180 day contract. Can you find another job and relocate in 30 days or 60 days?

9. If there is a “for cause” termination provision in the contract, be sure to include a “cure” provision. This is a provision which requires the employer to provide you written notice of any deficiency or breach and allows you a certain period of time (usually anywhere from 10 to 30 days) to cure it.

10. Ensure the contract is clear throughout that you are an employee and not an independent contractor. Employees receive far more benefits and have more protections under the law than do independent contractors. If you sign on as an independent contractor, you will be assuming many expenses and liabilities that the employer would ordinarily be required to assume.

11. A promise to make you a “partner” or “shareholder” in the practice after a certain period of time will not be enforceable unless all of the terms are specified in order for a court to enforce it. (Price, timing, percentage of ownership, method of payment of the buy-in, etc.). Think of an option to purchase a house. Unless all of the terms for a binding contract are set forth in writing and agreed to by the parties, it will not be enforceable.

12. If you sign the agreement, be prepared to honor it. Do not sign an agreement thinking that there may be certain provisions that won’t be enforceable or that you won’t be required to follow in the future. Assume that every part of the contract is enforceable.

13. Restrictive covenants (sometimes referred to as covenants not to compete) are enforceable in Florida. Although there are many exceptions and defenses that can be used to defeat or prevent the enforcement of a restrictive covenant, unless you have the money set aside to finance litigation, expect to honor it if it is in the agreement. As an employee, your negotiation strategy should be to: a) have it removed completely, or b) reduce the period of time and reduce the geographic area as low as possible. Also, it should be worded so as to only apply to the office or location in which you work and to the medical subspecialty or type of practice in which you will work.

14. Avoid assuming any obligation to pay the premium for tail coverage for professional liability (medical malpractice) insurance, especially if the employer terminates the employment. If you are not able to negotiate this away completely: a) reduce the percentage you agree to pay to 50% or have it reduced 25% for each year you are in the practice, and b) insert a provision that if you maintain the same insurance company or obtain retroactive coverage, this will be substituted for tail coverage.

15. Visit the practice, hospital and area at least three (3) times before signing. One of these visits should be without the knowledge of the potential employer when you can tour the geographic area and, perhaps, the hospitals on your own.

16. Contact any physicians you know or have met in the past who live in the area or any surrounding areas. They may be able to provide you information regarding your potential employer, hospital or city that may affect your decision.

17. Do your “due diligence” before agreeing. Ask to see actual billing and collections figures and income statements. Talk to other associates. If your compensation will be based on productivity, speak with another physician who is similarly compensated about how his/her compensation is computed. Visit any hospital, nursing home or other facility where you will have privileges or see patients. Discuss the quality of the equipment and stuff with other physicians and physicians in surrounding communities.

18. Do not buy a permanent residence (house or condominium) during your first two years of employment with a new practice in a new location. Rent or rent with an option to purchase. This will give you much more flexibility if the employment situation does not work out to your expectations.

19. If you receive a signing bonus, put it in the bank in a CD or money market to use as needed in connection with tips 14 and 15 above. This may be your personal “golden parachute” if you need to leave a bad situation.

20. Do not start working until you have a copy of the employment agreement. A draft copy if not sufficient. A copy signed by you but not by the employer is not sufficient. The most common problem we see when there is a physician employment dispute is that the employee does not have a copy of the contract that is signed by the employer.

Contact a Health Care Attorney Experienced in Negotiating and Evaluating Physician and Health Professional’s Business Transactions.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, durable medical equipment suppliers (DME), medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider.

The services we provide include reviewing and negotiating contracts, preparing contracts, helping employers and employees enforce contracts, advice on setting aside or voiding contracts, litigation of contracts (in start or federal court), business transactions, professional license defense, opinion letters, representation in investigations, fair hearing defense, representation in peer review and clinical privileges hearings, litigation of restrictive covenant (covenants not to compete), Medicare and Medicaid audits, commercial litigation, and administrative hearings.

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

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

KeyWords: Physician employment agreement, physician employment contract, health professional contracting, negotiating business transactions, physician contracts, contracting tips, legal representation for physician contracts, legal representation for negotiating physician contracts, contracting defense attorney, physician contract attorney, legal representation for contract litigation, legal representation for business litigation, legal counsel for contract terms, legal representation for physician agreements, legal representation for business transactions, legal counsel for restrictive covenants, legal counsel for noncompetition agreements, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, health law defense attorney, health law attorney

“The Health Law Firm” is a registered fictitious business name of The Health Law Firm, P.A., and Florida professional service corporation, since 1999, and is also a registered service mark. Copyright © 2017 The Health Law Firm. All rights reserved.

Responding to a Medicaid Audit: Important Tips You Should Know

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

The Agency for Health Care Administration (AHCA), Office of Inspector General (OIG), Bureau of Medicaid Program Integrity, is the Florida agency responsible for routine audits of Medicaid health care providers. Each state has a similar state agency, though it may have a different name.  The agency’s job is to ensure that the Medicaid Program was properly billed for services. Health care professionals receiving large payments from Medicaid or who practice in areas that typically see the most abuse or fraudulent billings, are the ones most likely to be audited.  These include pediatricians, Ob/Gyns, family practice physicians and pediatric dentists.

A different state agency that may also conduct Medicaid audits is the state Medicaid Fraud Control Unit (MFCU).  However, by definition, the MFCU is investigating allegations that there is substantial fraud going on.  You should know that if you are contacted by the MFCU, this is a very serious matter.  This is not a routine audit.
However, on the “routine” audits conducted by the Medica agency, the Medicaid audit usually requests information in a questionnaire that the medical practice is required to complete. Additionally, copies of medical records (including x-rays and other diagnostic studies) on the list of Medicaid patients selected for the audit.

If AHCA (or the state Medicaid agency) determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. The amount of the repayment to the Medicaid Program can be considerably greater than (30 to 100 times as much as) the actual amount of overpayment disclosed by the sample of records audited. Additionally, fines and penalties can be added by the Medicaid Program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.

 

General Practice Tips:
There are various ways to manage your practice that will help you in the event that you are selected for a Medicaid Audit.

1. Every patient record entry should be clearly dated and signed or initialed by the provider. Make sure this is always done.

2. When documenting in the patient’s record, make sure that you document exactly what services were needed and completed in order to support what was billed to Medicaid.

3. Communicate with the person responsible for your billing so that the actual services provided are billed for. Do not bill in advance for anticipated services needed as indicated in the appointment calendar or on a treatment plan.

4. Keep the patient records organized and ready for copying if necessary. Use only one sided documents and securely fasten small forms (prescriptions, telephone memos, small sticky notes) onto 8-1/2″ by 11″ paper. Scan all such documents into the patient record if using an electronic health record (EHR).

5. Services provided by a physician who is not enrolled in the Medicaid Program to a Medicaid patient may not be billed to or paid by the Medicaid Program. Therefore, never allow any other physician associated with your practice who is not enrolled as a Medicaid provider to provide services to Medicaid patients. Do not allow a new physician coming into your practice to treat Medicaid patients until he or she actually has received his or her Medicaid provider number. The group may not bill for the services nor may another physician bill for the services.

6. Ensure that all health care professionals’ licenses and permits are kept up to date. Ensure that all x-ray, clinical, lab and diagnostic equipment is permitted and kept up to date. Ensure that any CLIA license or exemption certificate is correct and kept up to date. Services billed by unlicensed personnel or services provided by improperly licensed facilities may not be paid by the Medicaid Program.

7. Use only standard abbreviations in your medical records, documentation, orders, and reports. While an abbreviation may seem common to you or your practice, if it is not a universally accepted abbreviation, the auditors may not recognize it.

8. Make sure all records are timely made, accurate and legible. Safeguard them and never let the original leave your office. Illegible records are treated as a non-record, and payment completely disallowed for an illegible note or order. A missing record, x-ray or chart entry will result in a complete repayment being directed for those services.

The Medicaid Audit:

If you are being audited, AHCA will send you a letter notifying you of the audit. AHCA will also supply you with a list of patients to be sampled a standard sample will include a list of anywhere from 30 to 150 patient names, depending on the size of the practice. Regular audits routinely request 30 to 50 patient records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a “Certification of Completeness of Records” form to complete and return with the copies of the patient records. (Please note: this will be used against you in the future if you attempt to add to or supplement the copies of the records you provided).

It is crucial that you retain the services of an expert consultant or experienced health care attorney in correctly and accurately completing the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.

1. When receiving a notice of a Medicaid audit, time is of the essence. Be sure to calendar the date that the records need to be in the AHCA office and have the records there by that date. Note: the due date is not the last date on which you can mail the records but rather is the date that the records must be received at AHCA.

2. Obtain and review a copy of the claims you submitted and what Medicaid has paid on each of the patients being audited. This information can be found in the Medicaid portal, in your billing system, or in the Explanation of Benefits. Compare this information to the medical records to see if any issues may arise when AHCA reviews the records. (Keep this for your use, do not provide it as part of the audit records).

3. Provide a complete copy of the entire record, not just the parts from the period of time covered by the audit. Remember that other physician records obtained as history, including reports and consultations should be included. Consent forms, medical history questionnaires, histories, physicals, and other physicians’ orders, may be a crucial part of the record.

4. If you suspect that an issue may arise with a particular patient, prepare a separate explanation to submit with the patient’s file. AHCA will have an expert review the records, so an explanation in advance will help the expert to assess if there is in fact an issue. Any explanatory notes or other explanations should be clearly labeled as such and dated as of the date actually prepared, so there is no confusion as to whether or not it was part of the original record.

5. If your practice involves taking x-rays or using other diagnostic studies, these procedures are part of the patient’s record. If the x-rays are digital, they can be submitted on a compact disc. Be sure to include the number of x-rays on the compact discs in the Certification of Completeness of Records.
6. Complete the Medicaid Provider Questionnaire in its entirety to send with the patient records. Do not leave any section blank. Use “not applicable” or “none” if necessary. Attach all required documents. Consult with an experienced health law attorney to assist in completing the form.

To learn more about the Medicaid audit process and how The Health Law Firm can assist you, click here to watch our short video blog.

Don’t Wait Until It’s Too Late, Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.
If you or your practice has been sent notice of a Medicaid or Medicare audit, please contact us at (407) 331-6620 or (850) 439-1001 or visit our website at www.TheHealthLawFirm.com for more information.

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: Legal representation for Medicaid audits, Medicaid audit defense attorney, health care fraud defense attorney, health care fraud investigation defense attorney, legal representation for health care fraud investigation, legal representation for health care fraud, Medicaid fraud defense attorney, legal representation for Medicaid fraud, legal representation for fraudulent billing, legal representation for submitting false claims to the government, legal representation for overbilling, health care fraud attorney, The Health Law Firm, reviews of The Health Law Firm attorneys, reviews of The Health Law Firm
“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 © 2017 The Health Law Firm. All rights reserved.

Florida Gov. Rick Scott Makes Changes to Florida Impaired Practitioners Program

indest1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 31, 2017, Florida Governor, Rick Scott, signed into law House Bill 229 (Ch. 2017-41, Laws of Florida), which made changes to the statutory basis for Florida’s impaired practitioner programs. The impaired practitioner program for nurses in Florida is the Intervention Project for Nurses (IPN), which is a for-profit corporation, The impaired practitioner program for doctors, dentists, pharmacists, optometrists, and all other licensed health professionals is the Professionals Resource Network (PRN), a non-profit corporation.

The program, as envisioned in the statute, is designed to assist health care practitioners who are impaired as a result of the misuse or abuse of alcohol or drugs, or of a mental or physical condition, which could affect the ability to practice with skill and safety.

Revisions to the Program.

The new law requires DOH to establish terms and conditions of the program by contract, provides contract terms, requires DOH to refer practitioners to consultants and revises grounds for refusing to issue or renew license, certificate, or registration in health care professions.

A significant change in the program involved a licensee’s duty to report colleagues that have or are suspected of having an impairment. The new law creates an exception to the mandatory reporting of an impairment to the DOH. The new revision will allow a licensee who knows that a person is unable to practice with reasonable skill and safety due to an impairment, to report such information to the consultant, rather than DOH. Both the core licensure statute and individual practice acts are amended to include this language.

Be sure to check Florida’s DOH website regularly for news and updates, here.

To learn more about how The Health Law Firm can help you with matters involving the DOH, click here.

If You Are Instructed to Contact IPN or PRN, Call an Attorney First.

If you are ever instructed by your employer or anyone else to report yourself to the Intervention Project for Nurses (IPN) or to the Professionals Resource Network (PRN), consult with an experienced health law attorney first. There are many problems that you can avoid by having good legal advice before you make a stupid mistake. We are often consulted and retained by clients when after they have made mistakes in talking to the wrong people about the wrong things and are in a situation they could have avoided.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers. We represent impaired physicians and other health professionals in Professional Resource Network (PRN) and disruptive physician matters.

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

“Changes to Florida Reporting for Impaired Practitioners.” Holland & Knight LLP. (June 7, 2017). Web.

Mckown, Mia. “Changes to Florida Reporting for Impaired Practitioners.” Lexology. (June 7, 2017). 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: Legal representation for impaired physicians, Legal representation for Department of Health (DOH) investigations, Intervention Project for Nurses (IPN) attorney, Professionals Resource Network (PRN) defense legal counsel, DOH investigation defense attorney, legal representation for investigations against health care professionals, legal representation for Florida DOH investigations, Florida DOH representation, DOH complaint defense, legal representation for DOH complaint, Florida impaired practitioners program, legal representation for PRN matters, legal representation for IPN matters, legal representation for disruptive physician issues, health law defense attorney, legal representation for health care professionals, changes to Florida impaired practitioners program, legal representation for health care investigations, The Health Law Firm reviews, reviews of The Health Law Firm attorneys, The Health Law Firm

“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 © 2017 The Health Law Firm. All rights reserved.