Little Known Facts About State and DOH Investigations That Could Save Your Professional License

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

The notice that you are under investigation may seem nonthreatening. It may come in the mail, be delivered personally by an investigator or you may receive a telephone call from the investigator. This is a very serious matter for you.

Our attorneys include those who are board certified in health law by The Florida Bar, those who are nurses, and those who are themselves licensed health professionals.  Our attorneys represent health care professionals and providers at formal administrative hearings at the Division of Administrative Hearings (DOAH), in defense of administrative complaints and in informal hearings before the Department of Health (DOH).
The Following is a list of little known facts about state investigations (including DOH investigations) that could save your license:

1. You do not have to make any statement at all to an investigator.  The Fifth Amendment applies to administrative investigations that can affect your license in Florida.  We recommend you never speak to an investigator or make any statement.  Let your attorney do this for you.

2. You do not have to sign an affidavit that your health records are complete.  In fact, we strongly recommend against doing this.  Consult an experienced health lawyer in who has experience in litigating your type of case before signing anything.

3. If you receive a DOH subpoena for records, you do not necessarily have to provide them.  You may file an objection to producing them based on an invasion of the privacy of the patient, lack of relevance to the investigation, super-confidential medical information (including HIV/AIDS testing or information, drug or alcohol counseling or testing information, or mental health information) or other proper grounds.  In one case, our client received a subpoena for copies of her professional school records and when we checked the case number for the case in which it was issued, the case did not exist.

4. The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the authority to enforce a subpoena or to issue a final order to you compelling you to respond to the subpoena.  Only a court of law with jurisdiction has the legal authority to compel you to produce records in response to a DOH subpoena.

5. If you have filed an objection to an administrative procedure, you cannot be legally charged with violating an order from the head of the agency to produce those records.  The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the legal authority to enforce such subpoenas.

6. If you are facing an emergency suspension order (ESO) for certain types of misconduct (e.g., drug abuse, alcohol abuse, sexual misconduct, mental impairment) you may be able to submit a voluntary request/agreement to refrain from practice in the state of Florida.  This may avoid having an ESO issued, which is a public record and is published through the media.  If you have a license in another state, you may still practice in that state.

7. A voluntary relinquishment of your professional license after an investigation has begun is treated the same as a revocation of your license.  This may result in a report being made to the National Practitioner Data Bank (NPDB) or the Healthcare Integrity Procurement Data Bank (HIPDB) just the same as a revocation of your license would be (even for LPN, R.N., or ARNP).  This will then result in your exclusion from the Medicare and Medicaid Programs, and you debarment/exclusion from all government contracting or employment.

8. You do not have to report a pending DOH investigation against you to anyone.  A DOH investigation is and remains completely confidential until at least ten (10) days after there is a finding of probable cause.

9. Until there is a suspension or other final action taken against you, there is no indication on your license or in your licensure file that you are being investigated.
If you receive notice that the Department of Health (DOH) has opened an investigation against you, contact The Health Law Firm immediately, before you talk to an investigator.

To learn more about how The Health Law Firm can assist you if you find yourself in this situation, click here.

To learn more on how to protect your medical license, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals Today.

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.

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: Legal representation for Department of Health (DOH) investigations, legal representation for DOH complaints, licensure defense attorney, DOH defense attorney, health law defense attorney, legal representation for health care professionals, legal representation for disciplinary actions against your license, legal representation for license revocation, licensure defense attorney, administrative complaint attorney, legal representation for administrative complaints, Board of Medicine representation, legal counsel for Board representation, The Health Law Firm, health law defense attorney, Florida health law attorney, reviews of The Health Law Firm, The Health Law Firm attorneys review

“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.

Little Known Facts About State and DOH Investigations That Could Save Your Professional License

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

The notice that you are under investigation may seem nonthreatening. It may come in the mail, be delivered personally by an investigator or you may receive a telephone call from the investigator. This is a very serious matter for you.

Our attorneys include those who are board certified in health law by The Florida Bar, those who are nurses, and those who are themselves licensed health professionals.  Our attorneys represent health care professionals and providers at formal administrative hearings at the Division of Administrative Hearings (DOAH), in defense of administrative complaints and in informal hearings before the Department of Health (DOH).
The Following is a list of little known facts about state investigations (including DOH investigations) that could save your license:

1. You do not have to make any statement at all to an investigator.  The Fifth Amendment applies to administrative investigations that can affect your license in Florida.  We recommend you never speak to an investigator or make any statement.  Let your attorney do this for you.

2. You do not have to sign an affidavit that your health records are complete.  In fact, we strongly recommend against doing this.  Consult an experienced health lawyer in who has experience in litigating your type of case before signing anything.

3. If you receive a DOH subpoena for records, you do not necessarily have to provide them.  You may file an objection to producing them based on an invasion of the privacy of the patient, lack of relevance to the investigation, super-confidential medical information (including HIV/AIDS testing or information, drug or alcohol counseling or testing information, or mental health information) or other proper grounds.  In one case, our client received a subpoena for copies of her professional school records and when we checked the case number for the case in which it was issued, the case did not exist.

4. The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the authority to enforce a subpoena or to issue a final order to you compelling you to respond to the subpoena.  Only a court of law with jurisdiction has the legal authority to compel you to produce records in response to a DOH subpoena.

5. If you have filed an objection to an administrative procedure, you cannot be legally charged with violating an order from the head of the agency to produce those records.  The Surgeon General (formerly known as the Secretary of the Department of Health) does not have the legal authority to enforce such subpoenas.

6. If you are facing an emergency suspension order (ESO) for certain types of misconduct (e.g., drug abuse, alcohol abuse, sexual misconduct, mental impairment) you may be able to submit a voluntary request/agreement to refrain from practice in the state of Florida.  This may avoid having an ESO issued, which is a public record and is published through the media.  If you have a license in another state, you may still practice in that state.

7. A voluntary relinquishment of your professional license after an investigation has begun is treated the same as a revocation of your license.  This may result in a report being made to the National Practitioner Data Bank (NPDB) or the Healthcare Integrity Procurement Data Bank (HIPDB) just the same as a revocation of your license would be (even for LPN, R.N., or ARNP).  This will then result in your exclusion from the Medicare and Medicaid Programs, and you debarment/exclusion from all government contracting or employment.

8. You do not have to report a pending DOH investigation against you to anyone.  A DOH investigation is and remains completely confidential until at least ten (10) days after there is a finding of probable cause.

9. Until there is a suspension or other final action taken against you, there is no indication on your license or in your licensure file that you are being investigated.
If you receive notice that the Department of Health (DOH) has opened an investigation against you, contact The Health Law Firm immediately, before you talk to an investigator.

To learn more about how The Health Law Firm can assist you if you find yourself in this situation, click here.

To learn more on how to protect your medical license, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals Today.

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.

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: Legal representation for Department of Health (DOH) investigations, legal representation for DOH complaints, licensure defense attorney, DOH defense attorney, health law defense attorney, legal representation for health care professionals, legal representation for disciplinary actions against your license, legal representation for license revocation, licensure defense attorney, administrative complaint attorney, legal representation for administrative complaints, Board of Medicine representation, legal counsel for Board representation, The Health Law Firm, health law defense attorney, Florida health law attorney, reviews of The Health Law Firm, The Health Law Firm attorneys review

“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.

Federal Judge Dismisses Former NFL Player’s Marijuana Decriminalization Suit

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

On February 26, 2018, a New York federal judge dismissed a former NFL star’s suit demanding decriminalization of medical marijuana. U.S. District Judge Alvin K. Hellerstein said the Second Circuit has already determined that Congress had a rational basis to classify marijuana as a Schedule I drug.

Schedule I drugs are those drugs that allegedly have no known currently accepted medicinal use and have a high potential for abuse. Marijuana is right up there with LSD and heroin (15,466 heroin overdose deaths in 2016).

The Fight to Decriminalize Marijuana.

The suit brought by Super Bowl winner and now weed entrepreneur Marvin Washington and others, seeks to challenge aspects of the Controlled Substances Act (CSA) through the court when remedies are available through federal agencies, like the U.S. Drug Enforcement Agency (DEA). Along with Washington, the action was brought on behalf of two young children, an American military veteran and the Cannabis Cultural Association organization, all of whom have suffered harm and are continuously threatened, by reason of the provisions of the CSA.

Washington, a former Jets football player, is hoping to force the hand of Congress and the White House by arguing that current federal policy is unconstitutional given marijuana’s health benefits. The complaint filed in September of 2017, argued the 1970 federal law classifying marijuana as a dangerous drug violates patients’ rights.
Click here to read the complaint in full.

At a hearing in early February 2018, Judge Hellerstein did acknowledge that marijuana’s health benefits are beyond question, but also warned Washington and the advocates that the district court was not an appropriate forum for the suit.

In his new ruling, he dismissed the suit because the Second Circuit found, in its 1973 United States v. Kiffer decision, that the Controlled Substances Act is constitutional.

Additional Ammo.

Judge Hellerstein said it’s clear that Congress had a rational basis for classifying marijuana in Schedule I, and executive officials in different administrations have consistently retained its placement there. In an example, he said the DEA’s most recent denial of a petition to reclassify marijuana listed a number of public health and safety justifications for keeping marijuana in Schedule I.

To read the judge’s order in full, click here.

To learn more about the status of marijuana, click here to read one of my prior blogs and be sure to check our Marijuana Law Blog regularly for updates.

Contact Experienced Health Law Attorneys for Medical and Recreational Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

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

The Hypocrisy of Marijuana Prohibition Must End.

One must ask when people who are supposed to be rationale are going to demand an end to this marijuana abuse hypocrisy. One day our children we will look back on this century of prohibition and scratch our heads and ask “Why?” just as we currently do for the alcohol prohibition of the 1920′ and 1930s. All it would take is an administrative agency decision to move marijuana form a Schedule 1 to a different schedule and all the current criminal law problems would go away.

Does marijuana have an accepted medical use? There are many cancer victims who think so. There are many doctors who are writing orders for medical marijuana in states where it is legal who think so. It is known to be a relaxant, to depress pain, to encourage sleep and to stimulate appetite (or so I am told).

As far as it having a high potential for abuse, is it as high as cigarettes? As high as sodas containing caffeine and sugar? As high as chewing gum?

And how many deaths each year are attributable to marijuana overdoses? In 2015 there were zero. Probably more people choked on chewing gum overdoses. Compare this to legal, prescription opiods and other similar drugs–over 19,000 deaths in 2015. Legal alcohol, available without a prescription–over 30,000 in 2015. [I apologize because I do not have more rent statistics.] And yet marijuana is somehow seen as a villain? If anything, cigarettes and tobacco products should be placed on Schedule 1. Again, one day our children will look back and, as many countries have done already, say “what a crock of s**t that was.”

Sources:

Simpson, Dave. “Ex-Jets Player Loses Pot Decriminalization Suit.” Law360. (February 27, 2018). Web.

Brush, Pete. “Ex-NFLer’s Pot Decriminalization Suit Hits Possible Snag.” Law360. (February 27, 2018). Web.

Bellware, Kim. “Here’s How Many People Fatally Overdosed On Marijuana Last Year.” (12/28/15)
http://www.huffingtonpost.com/entry/marijuana-deaths-2014_us_56816417e4b06fa68880a217

Welch, Ashley. “Drug Overdoses Killed More Americans Last Year than the Viet Nam War.” (Oct. 17, 2017)
http://www.cbsnews.com/news/opioids-drug-overdose-killed-more-americans-last-year-than-the-vietnam-war/

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: Marijuana defense attorney, medical marijuana defense attorney, lawyer for medical marijuana growers and distributors, health lawyers for marijuana distributors, legal counsel for marijuana growers and distributors, medical marijuana laws, marijuana laws, medical marijuana legalization, recreational marijuana laws and regulations, legal representation for recreational marijuana in a business, legal counsel for marijuana law, marijuana law attorney, Controlled Substances Act (CSA) , U.S. Drug Enforcement Agency (DEA) investigation representation, legal representation for DEA matters, DEA investigation defense attorney, reviews of The Health Law Firm, The Health Law Firm attorney reviews, 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 © 2018 The Health Law Firm. All rights reserved.

 

Illinois Implements New Regulations That Allow Psychologists to Prescribe

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

Illinois clinical psychologists can now obtain licenses to prescribe medications for mental conditions under new regulations passed by the state.  The new regulations issued by the Illinois Department of Financial and Professional Regulation (IDFPR) took effect in October 2017.

Psychologists traditionally have not had the authority to write prescriptions for medications, except in a very few states.  Therefore, their patients have been unable to obtain psychotropic medications to treat their mental illnesses without seeing a physician, or in some cases a nurse practitioner or physician assistant with prescribing authority.  This makes such treatment of mental illness more cumbersome and more expensive for the patient, and creates another obstacle for needed mental health services.   Also, it is questioned whether nurse practitioners and physician assistants have any greater expertise in such medical issues than properly trained psychologists.  Mental health, substance abuse and child welfare agencies have faced challenges in serving clients and the new regulations come in hopes of expanding access to care.

The New Illinois Regulations. 

Illinois is now allowing psychologists with specialized training to prescribe medications. This prescriptive authority will extend to a wide range of medications to treat mental health conditions for patients between ages 17 and 65.

An Illinois-licensed clinical psychologist will now be eligible to obtain a prescribing psychologist license upon the completion of seven biomedical undergraduate level courses; the completion of psychopharmacology-related course work typically culminating in a master’s degree in clinical psychopharmacology; obtaining at least 14 months of supervised clinical training in a program meeting regulatory criteria, with rotations in emergency medicine, family medicine, geriatrics, internal medicine, obstetrics and gynecology, pediatrics, psychiatry, surgery, and an elective area; and achieving a passing score on the Psychopharmacology Examination for Psychologists.

The Stipulations.

Before prescribing, a psychologist must enter into a written collaborative agreement with an Illinois-licensed physician who prescribes medications for mental health conditions. The collaborative physician is not required to be a psychiatrist.  This is similar to what is currently required in most states for nurse practitioners and physicians assistants.

The statute and regulations set forth a number of issues that must be addressed in a written collaborative agreement between a psychologist and the collaborating physician, including provisions that:

1. Describe the working relationship between the psychologist and collaborative physician;

2. Delegate prescriptive authority;

3. Promote the exercise of professional judgment by the prescribing psychologist;

4. Provide methods and guidelines for communication between the collaborating physician and the prescribing psychologist;

5. Provide for collaboration between the physician and the prescribing psychologist, including joint formulation and approval of orders or guidelines, consultation and review of medication orders; and

6. Address termination or change of status.

With this Authority Also Comes Restrictions.

A psychologist prescribing in Illinois is subject not only to training, continuing education and collaborative agreement requirements, but also to significant limitations. In particular:

1. The delegation of prescriptive authority must be limited to medications that the collaborating physician generally provides in the normal course of clinical practice to treat mental conditions;

2. A psychologist is not allowed to prescribe for patients who (a) are under 17 years of age; (b) are over 65 years of age; (c) are pregnant and have disclosed their pregnancy or who the psychologist knows are pregnant; (d) have disclosed serious medical conditions, such as heart disease, cancer, stroke, or acute seizures; or (e) have developmental and intellectual disabilities;
3. Prescriptions are not allowed for (1) benzodiazepine Schedule III controlled substances, (2) any injected controlled substance, (3) any Schedule II substance, or (4) any narcotic drug; and

4. Any delegation of Schedule III through V controlled substances must identify the specific controlled substance by brand or generic name.

The expansion of psychologists’ prescribing authority will also present new opportunities and challenges not only for psychologists but also for patients, payers, physicians, agencies and other health care providers.
With the incorporation of psychologist prescribing into patient care models, health care professionals hope to increase access to effective mental health treatment. You can read the new regulations in full here.

To stay on top of laws and regulations for mental health care professionals, be sure to check our Mental Health Law Blog regularly.

Many Educational Programs Exist for Psychologists Interested in Prescribing.

There are many schools of psychology and universities that offer comprehensive courses and programs, some leading to a separate degree, for psychologists interested in prescribing.  These programs may exist even in states which do not allow psychologists to prescribe, such as Florida.  We believe it is time for each state to change its laws and regulations to allow properly educated and trained psychologists to prescribe medications associated with the treatment of mental illnesses.

States should be taking action to make it easier for mental health patients to access the medications that may very well help them control their mental illnesses.  Psychologists, mental health professionals, and advocacy groups for persons with mental health issues should be lobbying hard to get their state legislatures to enact similar legislation.  Unfortunately, this will probably denigrate to nothing more than a turf battle, as so often happens with progressive changes in medical regulation.  The physicians , nurse practitioners, and physician assistants who currently have such prescribing authority will doubtless fight such change since they will see it as affecting their future income.

The Health Law Firm.

For more information on how The Health Law Firm can assist you with licensure and compliance issues, click here to read one of my prior blogs.

Contact A Lawyer Experienced in the Representation of Psychiatrists, Mental Health Counselors, Social Workers, Licensed Marriage and Family Therapists and Other Mental Health Professionals.

We routinely provide deposition coverage to psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals. The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing psychiatrists, mental health counselors, social workers, licensed marriage and family therapists and other mental health professionals in investigations at the Board of Psychology, Board of Medicine, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling, and the Board of Nursing.
Call now or visit our website www.TheHealthLawFirm.com.

Sources:

Hindman, Rick. AHLA. “Illinois Implements Licensing Process for Psychologist Prescribing.” Physician Organizations Practice Group and Behavioral Health Task Force. (January 30, 2018). Web.

“Illinois law allows psychologists to prescribe.” American Psychological Association. (January 30, 2018). 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: psychologist attorney, representation for psychologists, psychologist representation, psychiatrist defense attorney, psychiatrist representation, licensure defense attorney, licensure representation, mental health counselor defense lawyer, social worker attorney, psychologist defense counsel, mental health law attorney, representation for mental health professional, Board of Psychology defense attorney, Board of Clinical Social Work representation, Marriage & Family Therapy and Mental Health Counseling defense counsel, Department of Health (DOH) investigation defense lawyer, professional license defense attorney, professional license discipline representation, health care law attorney, representation for health care professionals, 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 © 2018 The Health Law Firm. All rights reserved.

Alabama Doctor and 3 Nurse Practitioners Charged With Running Fraudulent Pill Mill

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

On December 6, 2017, three nurse practitioners and a doctor were arrested following an Alabama federal grand jury indictment accusing them of operating a “pill mill.” According to the U.S. Department of Justice (DOJ), all four allegedly dispensed controlled substances inappropriately, unlawfully and for non-medical reasons.

The Alleged Pill Mill.

The nurse practitioners and physician allegedly prescribed opioids including fentanyl, hydrocodone, oxycodone, methadone and hydromorphone on a monthly basis for years, according to the indictment. They then allegedly billed health care providers for related unnecessary patient examinations.

“[The four defendants] did knowingly and intentionally conspire to distribute and dispense and cause to be distributed and dispensed mixtures and substances containing detectable amounts of controlled substances by issuing and causing prescriptions for those substances outside the usual course of professional medical practice and for no legitimate medical purposes, through the operation of a pill mill,” the indictment stated.

Prosecutors alleged the medical personnel diagnosed patients at the Alabama practice with “vague, unsubstantiated medical conditions,” and prescribed controlled substances in 30-day quantities.

Additionally, prosecutors allege that they required the patients to have a follow-up appointment involving a physical examination that was “medically unnecessary.” They would then bill health care benefit programs for the patients’ visits, usually in the amount of $75, under allegedly false and fraudulent pretenses.

The alleged scheme earned the defendants more than $10,000. If convicted, each defendant faces a maximum sentence of 20 years in prison on the drug conspiracy and distribution counts. They face maximum sentences of 10 years in prison on the health care fraud counts.

To read the indictment in full, click here.
Law Enforcement Raids on Physicians, Pharmacists, Nurses and Other Health Providers Will Continue.

According to the U.S. Drug Enforcement Administration (DEA), investigations against pill mill operations are ongoing. Additional arrests of co-conspirators, including other doctors and health providers, are forthcoming, according to the DEA. If you are a physician, pharmacist, nurse, or other health provider, ensure you are taking measures to protect yourself and your practice.

To see a prior blog I wrote on the steps pain management physicians can take to stay out of trouble, click here.
Contact a Health Law Attorney Experienced in DEA Cases.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, health care clinics, pain management clinics, pharmacists, pharmacies, and any other health care provider. We defend pain management physicians, clinics and pharmacists in state license investigations, in administrative hearings, and in DEA actions, including Show Cause Orders (SCOs) . 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. It includes defense in federal or state court and defense in federal or state 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.

Sources:

Robinson, Carol. “Alabama doctor, 3 nurse practitioners federally indicted in pill mill case.” AL.com (Alabama News). (December 5, 2017). Web.

Narea, Nicole. “Doctor, 3 Nurse Practitioners Charged With Running ‘Pill Mill’.” Law360. (December 5, 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 pain management clinic, pain management clinic defense attorney, Show Cause Order (SCO) defense attorney, Show Cause Order (SCO) defense legal counsel, Show Cause Order (SCO) defense lawyer, legal representation for over-billing, legal representation for submitting false claims, False Claims Act (FCA) defense attorney, medical license defense attorney, nursing license defense attorney, Drug Enforcement Administration (DEA) defense attorney, Drug Enforcement Administration (DEA) defense counsel, Drug Enforcement Administration (DEA) defense lawyer, board of medicine attorney, board of pharmacy attorney, legal representation for Department of Health investigations, legal representation for allegations of over-prescribing, legal representation for U.S. Department of Justice (DOJ) investigations, DOJ investigation defense attorney, The Health Law Firm reviews, reviews of The Health Law Firm, The Health Law Firm attorney reviews, formal and informal administrative hearing defense attorney, formal and informal administrative hearing defense lawyer, formal and informal administrative hearing defense legal counsel

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

 

Florida Senate Health Committee Approves Change In Optometrist Certification

By 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

By 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.

 

 

Kmart Agrees to Pay $32.3 million to Settle Whistle Blower’s False Claims Act Suit

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

On December 22, 2017, Kmart Corporation agreed to pay $32.3 million to settle a whistle blower lawsuit alleging its pharmacies caused federal health programs to overpay for prescription drugs by not telling the government about discounted prices. The department store chain withheld certain information from Medicare Part D, Medicaid and Tricare, the Department of Justice (DOJ) said.

The Whistle Blower False Claims Act (FCA) Suit.

The new agreement resolves allegations arising from a 2008 lawsuit brought under the qui tam, or whistle blower, provisions of the False Claims Act (FCA). This provision permits private citizens with knowledge of fraud against the government to bring an action on behalf of the United States and to share in any recovery.

The 2008 lawsuit, which was filed by a former Kmart pharmacist, alleged that Kmart pharmacies offered discounted generic drug prices to cash paying customers through various club programs. The pharmacies then knowingly failed to disclose those prices when reporting to federal health programs. According to the suit, in one case, Kmart had sold a 30-day supply of a generic version of a prescription drug for $5 to customers of its discount program, but then filed for reimbursement from the government for $152 for that same drug for its Medicare customers.
To read more on the 2008 suit, click here.

The settlement agreement with the United States is a part of a global $59 million settlement that includes a resolution of state Medicaid and insurance claims against Kmart. The former pharmacist will receive a whistle blower award of $9.3 million. The case was heard in the U.S. District Court in the Southern District of Illinois.

To read the DOJ’s press release on this case in full, click here.

To read about a similar case of a pharmacy inflating prices to government health care programs, click here to read one of my prior blogs.

Who Knew Medicare Part D Claims Could Yield Such Big Whistle Blower Settlements?

Who knew Medicare part D claims could yield such big whistle blower settlements? I know I didn’t. I didn’t even think about such claims until I read this case. This could mean some serious compliance issues for big chain stores that have pharmacies (note that I said “could”). Walmart, Publix, Albertsons, Costco, Sam’s Club, Winn Dixie, Engel’s, and every other chain that owns and operates pharmacies, may be in jeopardy.

Contact an Experienced Health Law Attorney to Assist in Whistleblower/Qui Tam Cases.

If you have knowledge of false claims being filed against Medicare, Medicaid, TRICARE/CHAMPUS or any other type of government program, please contact us, and we will be happy to assist you. Our law firm represents health professionals and health care organizations almost exclusively. Yet, we have been involved in a number of whistleblower/qui tam cases, in which we represent the person who files the claim (the whistle blower). We have also defended health professionals and institutions in litigation of whistle blower complaints filed against them.

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

Sources:

McCausland, Phil. “Kmart to pay $32.3M to settle health care-related whistleblower case.” NBC News. (December 22, 2017). Web.

The Associated Press. “Kmart to pay $32.3 million to settle prescription drugs case.” ABC News. (December 22, 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.

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“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.

 

Appeals Court Affirms Discipline for Doctor Who Sold Prescriptions at Bar

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

On December 15, 2017, a physician who sold painkiller prescriptions to patients at a bar and restaurant, had his two-year probation for unprofessional conduct upheld by a Maryland appeals court. The court upheld the decision after it found that the evidence supported the state board’s disciplinary decision.

Unprofessional Conduct Alleged.

The Court of Special Appeals affirmed the ruling by the Maryland State Board of Physicians (Board) to reprimand Dr. Walter Kozachuk and place him on probation for a minimum of two years for unprofessional conduct in the practice of medicine. The Board claimed he would routinely meet with patients at a restaurant and bar and give them prescriptions for painkillers and anti-anxiety drugs in exchange for $100 per prescription. Additionally, on at least one occasion, he allegedly gave a patient a prescription in a parking lot.

The appeals court determined that there was substantial evidence supporting the board’s determination that the doctor’s sale of prescriptions in a non-office setting constituted unprofessional conduct. To read the court’s opinion in full, click here.

How You Can Avoid Legal Issues.

As a physician, you should be proactive in avoiding drug seeking patients and illicit clinic owners or coworkers. With the power of prescribing comes a great responsibility. Don’t find yourself behind bars when it can all be prevented. Here are some tips to learn from the recent pain management clinic raids.

1.    Avoid working for practices or clinics that have reputations as pill mills.

2.    Most physicians subject of investigations, such as the one written about here, are typically the sole physician in the clinic. Join a team setting in a group practice with other full-time physicians.

3.    Document everything. Make sure all medical records meet the requirements of state and federal laws. Verify all patients’ identities and be sensitive to possible false identifications.

4.    Make sure you know about everything going on in your office. Maintain a loyal and trustworthy staff who will report irregular behavior to you as physician. Have a zero tolerance for staff violations.

5.    Do NOT ever allow a lay person or non-physician to control your office. Do not give anyone like this sole access to medical records, billings, bank accounts or scheduling. Make sure that you are the one in control of these, that you have the passwords and access numbers, and that your constantly review these. You will be held accountable for this so you should remain in control.

To read more physician tips on protecting yourself and your license, click here.

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, pain management doctors, 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 physicians in complaints against their medical licenses.  We also handle appeals of board of medicine cases.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Kang, Peter. “Md. Court Affirms Discipline For Doc Who Sold Scrips At Bar.” Law360. (December 15, 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.

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“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.

Mother Files Suit Against Walgreens Over Prescription That Killed Her Son

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

On October 31, 2017, an Illinois woman filed suit against Walgreens with a state court suit claiming store personnel gave her incorrect instructions for handling the anti-rejection drugs prescribed to her 3-year-old son. The medication was prescribed to the boy after his heart transplant, and Tatiana Lowe claims Walgreens pharmacy’s error resulted in his death.

The Lawsuit.

Lowe alleged that Walgreens employees insisted on the incorrect instructions even after she said they contradicted previous instructions she’d been given for the drug. Therefore, the drugs did not have their proper effect and her son who went into heart failure and died.

She claimed she and her mother, who was also caring for the boy, were told by both Walgreens employees and the label the employees placed on the medication that tacrolimus was to be kept refrigerated. Additionally, she claims that she questioned the directions and informed the staff that previous tacrolimus prescriptions had come with warnings not to refrigerate it, but that the staff “carelessly and negligently rebuked and misled” her and her mother.

Lowe claimed she followed the directions given by the Walgreen employees, but that because of the refrigeration the drug had “sub-therapeutic and unreasonably dangerous effects,” resulting in heart failure.

At said time, Walgreens knew or should have known that tacrolimus must be mixed with the proper ingredients and stored at room temperature in order to provide the anticipated efficacy and beneficial anti-rejection effects to organ transplant patients such as Albert Dobbins,” the complaint said.

To read the complaint filed in this case, click here.

To learn more and read about another case of pharmacy negligence that lead to a patient’s death, click here to read one of my prior blogs.

Contact Health Law Attorneys Experienced in Representing Pharmacists, Pharmacies, and Other Health Care Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes pharmacists, pharmacies, physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians in investigations and at Board of Medicine and Board of Osteopathic Medicine hearings. We represent physicians accused of wrongdoing, in patient complaints and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.ThehealthLawFirm.com.

Sources:

Archer, Rick. “Walgreens Hit With Suit Over Prescription That Killed Child.” Law360. (October 31, 2017). Web.

Grossman, Dan. “Family sues Swedish Medical over death of son.” 9 News. (December 22, 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.

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“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.
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