Emergency Suspension Orders and Medicaid Fraud
Monday, November 7, 2011
In the recent case of Mendelsohn v. State of Florida Department of Health, Dr. Mendelsohn's license to practice medicine was suspended under an Emergency Suspension Order (ESO). According to the ESO, Dr. Mendelsohn is licensed to practice medicine in Florida pursuant to the provisions of chapter 458, Florida Statutes.
Doctor Pleas Nolo Contendre to Fraud Charge.
On December 9, 2010, he entered a plea of nolo contendere in federal court to a charge of conspiracy to commit fraud upon the United States in violation of 18 U.S.C. § 371. As a result of his conviction, the Florida Department of Health (DOH) immediately suspended his medical license without a hearing pursuant to section 456.074(1), Florida Statutes (2010), which states:
(1) The department shall issue an emergency order suspending the license of any person licensed under chapter 458 . . . who pleads guilty to, is convicted or found guilty of, or who enters a plea of nolo contendere to, regardless of adjudication, to: (b) A misdemeanor or felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program.
Fraud Charges Not Related to Medicaid; Doctor Argues ESO Should Not Have Been Issued.
Dr. Mendelsohn argued that his federal conspiracy conviction was not related to the Medicaid program, so the DOH could not issue an ESO without establishing that his actions posed an immediate danger to public safety. Florida law requires that an order directing the immediate suspension of a health practitioner's license contain every element necessary to its validity on the face of the order.
In general, an ESO will not be upheld unless the order on its face sets out the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare, as well as the DOH's reasons for concluding that the procedure used is fair under the circumstances. However, Section 456.074(1), Florida Statues requires the DOH to issue an emergency order suspending a medical license in certain circumstances without regard to specific proof that a petitioner is acting in a way that poses an immediate danger to public safety.
Dr. Mendelsohn asserted that the DOH incorrectly found that his conviction required an ESO under section 456.074(1)(b). Section 456.074(1)(b) requires the DOH to issue an ESO when a practitioner has been convicted of a "felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program."
Although Dr. Mendelsohn was convicted of a felony in violation of 18 U.S.C. § 371, he contended his conviction was not related to the Medicaid program, and thus, did not support the issuance of an ESO without further proof that he posed a threat to public safety.
Court Agrees with Doctor; ESO Found to be Unnecessary.
The court ultimately agreed with Mendelsohn. In the decision the court stated that the underlying facts did not qualify as one of those instances where the DOH may issue an ESO without providing specific reasons why the suspension is necessary to prevent immediate harm to the public.
Facing an Emergency Suspension or Other DOH Action? Contact Health Law Attorneys Immediately.
If you are facing an emergency suspension, investigation or other adverse action by the Florida Department of Health, your license may be at risk. DOH actions generally involve many deadlines and procedural intricacies. The attorneys of The Health Law Firm are knowledgeable in handling these matters. To contact one of our attorneys, please call (407) 331-6620 or (850) 439-1001 and visit www.TheHealthLawFirm.com.
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