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Health Care Law Questions and Answers
(Note: These health care law questions and answers have been published
in the "Ask the Professionals" section of the Orlando Business
Journal. Please consult the Orlando Business Journal for the latest
one.)
Question 1:
I am a medical doctor with a solo practice. I have been told I should
incorporate my practice as a professional association by some, and as
a limited liability company by others. What is the best structure for
my medical practice?
Answer 1:
Your medical practice should be organized as some business entity that
limits your liability. Both the professional association and the limited
liability company limit the personal liability of owners. Most medical
practices are organized and operate successfully as professional associations.
However, if the practice owns significant assets in the form of real
estate or other property, which is often the case with medical practices,
we recommend the formation of a limited liability company for those
assets. A limited liability company may provide tax advantages when
assets such as real estate appreciate in value.
Question 2:
I am a physician. I received a letter from an investigator advising
me that a complaint had been filed against me and asking me to make
a statement explaining my side. Should I send the investigator my statement
telling my side of the story?
Answer 2:
No. You should not speak with the investigator. Although you may have
a very good, logical explanation, you should never communicate directly
with an investigator in such a case. Your statement can and will be
used against you and serve as proof of certain issues that might not
be proved otherwise (such as the fact that you saw a certain patient,
that you prescribed a certain medication, that you did or did not do
certain things, etc.). Additionally, you may have inadvertently violated
a law or regulation that you did not even know existed (such as advertising,
billing or solicitation regulations). The fines authorized by law for
infractions by health professionals have recently increased to $10,000
per incident and may also include suspension or revocation of your license.
What may seem to you to be only a "minor" event may actually
be viewed as much more serious by members of your professional board.
We recommend that you not respond to the investigator but that you immediately
hire an experienced health care attorney to advise you and respond on
your behalf if called for. Don't wait.
Question 3:
I am a physician. I received a letter from my hospital peer review
committee advising me that I was being investigated for concerns that
it had about my medical care and advising me of a meeting that I should
attend to answer questions. What should I do?
Answer 3:
This type of letter is usually the first step in a process to take
adverse (or "disciplinary") action against you in relation
to your clinical privileges and medical staff membership at the hospital.
This may result in a lengthy, costly "peer review" or "fair
hearing" in the hospital followed by an even longer legal battle.
It may seem minor to you, but the hospital staff or one or more other
physicians involved may consider the matter to be very serious or to
indicate a "trend" that needs to be stopped. Adverse findings
made by such hospital proceedings are reported to the National Practitioner
Data Bank and remain on file forever, haunting the physician throughout
his/her career. It is important that you immediately seek the advice
of a health care attorney who has experience in hospital credentialing
issues and who routinely represents physicians in such hearings. This
particular subject is fraught with peril and even a senior, experienced
attorney who has not been involved in these before will be at a notable
disadvantage.
Question 4:
I am a physician. I received a letter from the Department of Health
(DOH) indicating it has issued an emergency order to suspend my license
to practice medicine. Can it do this? What should I do?
Answer 4:
The Secretary of the DOH has the authority to suspend your license
to practice medicine on an emergency basis for a number of different
reasons, usually related to safety of patients. These are often used
if the physician is found to be impaired from drug or alcohol abuse.
An emergency suspension order (ESO) may be used to force the physician
to undergo a physical or mental examination. DOH may issue an ESO if
a physician pleads guilty to, is convicted or found guilty of, or enters
a plea of nolo contendere to a felony, or if a physician has defaulted
on a student loan issued or guaranteed by the government. An ESO is
a public record that is published in newsletters and released to the
media. There are alternatives to ESOs that may keep the matter confidential.
Also, ESOs may be challenged in court proceedings. If you suspect that
DOH may issue an ESO, you should immediately hire an experienced health
care attorney to begin working on your case. Your attorney may be able
to help avoid an ESO or to expedite having your license reinstated.
Question 5:
I am a physician. I received a letter from the Department of Health
(DOH). It contained an administrative complaint about my care of a patient.
It also contained a statement saying I could request a formal hearing
or an informal hearing, and a proposed "consent agreement"
in which I would agree to receive a fine. Should I agree to this and
the informal hearing?
Answer 5:
No. Since your case has gotten this far, it is a serious matter. If
you choose an informal hearing, you are agreeing that all facts in the
administrative complaint are true and you are guilty of the allegations;
the only issue left undecided is what your punishment is to be. You
may have good defenses that could be raised in a formal hearing and
you have procedural rights which may result in dismissal of the case.
Also, in a formal hearing, the state agency has the burden of proof
and may not be able to prove the allegations. Even if you do not decide
to pursue the formal hearing, a better deal may be negotiated with DOH
or you may submit additional evidence and request a reconsideration
of the case by the probable cause panel. Since any disciplinary action
taken against your license will be reported to the National Practitioner
Data Bank and will be on file forever, you need the advice of an experienced
health care attorney in making this decision.
Question 6:
I am a doctor contemplating an employment relationship with a hospital.
A representative of the hospital sent me a "Physician's Employment
Agreement". I was told to sign it if I agree to it. I read it and
was somewhat confused by the wording. I have been talking to a representative
of hospital about the requirements of the job being offered to me and
I would like to work for this hospital. Should I sign the agreement
even though I have not had an attorney review it?
Answer 6:
No. A "Physician's Employment Agreement" is a legally enforceable
contract. Your signature on the contract is an expression of your agreement
to comply with all of the contract's terms and conditions. A court of
law will enforce those terms against you even if you later contend the
terms were poorly worded, confusing, or you did not read them. The person
with whom you have been speaking may be a lawyer or may have legal experience.
Regardless, he will be representing the hospital's interests and will
not have your best interests in mind.
Often the agreement drafted by the hospital is tailored to address
the hospital's objectives and concerns about the proposed employment
relationship rather than your specific objectives and concerns and may
be completely one-sided. Consultation with an experienced health care
attorney will help you understand both the practical and legal meaning
of the language in the contract. In turn, this will enable you to negotiate
a better terms concerning important issues such as compensation, bonuses,
extra duties, benefits, standing call, time off for continuing education,
reimbursement of expenses, coverage, and relief in the event the job
does not work out. You should, with the help of an experienced attorney,
negotiate the best terms you are able, to protect your interests in
the event the relationship breaks down at a later point in time.
You should always:
- Have any significant contract or agreement reviewed by a health
care attorney with experience in such matters.
- Ensure that the wording of the contract exactly and clearly represents
what you were promised orally.
- Assume that every part of the contract will be enforceable against
you despite promises or rumors to the contrary.
- Be sure all blanks are completely filled in and all forms,
documents, schedules and exhibits are attached to it before
you sign it.
- Be sure you receive a copy of any and all regulations, policies,
procedures, rules, handbooks, codes of conduct, bylaws, or other documents
referenced in the agreement, and review these, before you sign
it.
- Keep a signed, dated copy of the complete agreement.
- Receive back a copy of the agreement, signed and dated by the hospital,
before you start work.
Question 7:
What is the difference between "direct supervision" and
"indirect supervision" of medical personnel by a physician?
Answer 7:
Direct and indirect supervision are terms referring to how closely
a physician is required to supervise his or her employee (usually an
advanced registered nurse practitioner (A.R.N.P.), physician assistant
(P.A.), medical assistant or other medical personnel. These terms usually
acknowledge the experience and skills of a particular medical staff
member and their ability to function and make medical decisions independently.
They are also used to determine the appropriateness of paying for a
certain procedure or service performed by that individual or the amount
of payment, by Medicare, Medicaid or third party insurance companies.
Rule 64B8-2.001 (1), Florida Administrative Code (F.A.C.), a state
rule (or "regulation") enacted by the Florida Board of Medicine,
defines the different levels of supervision in reference to doctors
of medicine (M.D.'s).
Rule 64B8-2.001 (1) (a), F.A.C., defines "direct supervision"
as follows:
(a) "Direct supervision" shall require the physical presence
of the supervising licensee on the premises so that the supervising
licensee is reasonably available as needed. When this term is used
in probationary terms of a Final Order, it requires that the licensee
practice medicine only if the approved supervisor is on the premises.
In other words, the term "direct supervision" usually means
that the supervising physician must be present on the premises (i.e.,
in the same building) so that he or she is immediately available to
answer questions or otherwise respond.
Rule 64B8-2.001 (1) (b), F.A.C., defines indirect supervision as follows:
(b) "Indirect supervision" shall require only that the
supervising licensee practice at a location which is within close
physical proximity of the practice location of the supervised licensee
and that the supervising licensee must be readily available for consultation
as needed. "Close physical proximity" shall be within 20
miles or 30 minutes unless otherwise authorized by the Board.
Technically, these definitions adopted by the Florida Board of Medicine
can only apply to medical doctors and other medical personnel regulated
by the Board of Medicine practicing in Florida. However, these definitions
are similar to those adopted in Medicare Guidelines applicable to all
health care professionals who are Medicaid providers. Additionally,
in the absence of similar rules adopted by other professional boards
(e.g., Board of Osteopathic Medicine, Board of Chiropractic Medicine,
etc.), state and federal regulators and insurance companies may look
to these definitions for guidance.
For example, in Florida an unlicensed medical assistant may perform
a number of acts and provide a number of services that appear to be
medically related, provided these are performed under the direct supervision
of a physician. Section 458.3485(2), Florida Statutes, sets forth these
as follows:
DUTIES.--Under the direct supervision and responsibility of a licensed
physician, a medical assistant may undertake the following duties:
(a) Performing clinical procedures, to include:
1. Performing aseptic procedures.
2. Taking vital signs.
3. Preparing patients for the physician's care.
4. Performing venipunctures and nonintravenous injections.
5. Observing and reporting patients' signs or symptoms.
(b) Administering basic first aid.
(c) Assisting with patient examinations or treatments.
(d) Operating office medical equipment.
(e) Collecting routine laboratory specimens as
directed by the physician.
(f) Administering medication as directed by the
physician.
(g) Performing basic laboratory procedures.
(h) Performing office procedures including all
general administrative duties
required by the physician.
(i) Performing dialysis procedures, including
home dialysis.
Section 458.3485(1), Florida Statutes, enclosed herein, defines a medical
assistant as follows:
DEFINITION.--As used in this section, "medical assistant"
means a professional multiskilled person dedicated to assisting in
all aspects of medical practice under the direct supervision and responsibility
of a physician. This practitioner assists with patient care management,
executes administrative and clinical procedures, and often performs
managerial and supervisory functions. Competence in the field also
requires that a medical assistant adhere to ethical and legal standards
of professional practice, recognize and respond to emergencies, and
demonstrate professional characteristics.
For further guidance as to the Medicare Program's requirements, you
may desire to refer to 42 CFR Section 411.355(a)(ii), 72 Fed. Reg. p.
51088 (Sept. 5, 2007) and Medicare Program Memorandum Carriers Transmittal
B-01-28 (April 19, 2001), which discuss the level of supervision required
for certain services paid for by Medicare.
Question 8:
I am a registered nurse. I have received a letter from the Florida
Department of Health (DOH) advising me that a complaint has been filed
against my license and that I am being investigated for this. The letter
requests that I contact the DOH investigator to give her my side of
the story and also requests that I send the investigator my resume or
CV. Should I do this? What should I do?
Answer 8:
This is a serious matter. The investigation may result in formal proceedings
in which permanent disciplinary action is taken against you. This could,
in turn, result in elimination of job opportunities, loss of employment,
loss of professional liability insurance, being disqualified from hospital
positions, being disqualified from working for anyone taking Medicare
or Medicaid, disciplinary action being taken against your professional
license(es) in other states, and other actions.
You should not call the investigator or send in a written statement
of any type. Any statement you make, oral or written, can be used against
you to prove a charge or part of a charge.
You should immediately consult with or hire an experienced
health attorney who is familiar with DOH investigations and has been
involved with actions by your professional board.
If you have professional liability insurance you should notify your
insurer and ask if your insurance company will pay for your legal expenses
in connection with the investigation. Many professional liability insurance
companies will do this. Nurses Service Organization (NSO) Insurance
and Health Professionals Service Organization (HPSO) Insurance are two
such examples.
If you are unable to hire an attorney, you should write a letter to
the DOH Investigator and request that a complete copy of the investigation
be provided to you when it is finished. You should also state that you
may desire to make a statement or submit additional documents
before the case goes to the probable cause panel, after reviewing the
investigation. Send this letter by certified mail, return receipt requested,
and keep a signed, dated copy of it. You have a right under Florida
law to do this. Do not state anything else in your letter requesting
a copy of the investigation.
If the investigator contacts you directly (by telephone, by letter
or in person) tell the investigator you do not desire to make a statement
at this point in time and that you are considering obtaining an attorney
to represent you. Do not let the investigator provoke you into making
any statement of any kind. Do not chit chat with the investigator. She
is not your friend.
We cannot overemphasize the importance of attempting to obtain legal
representation by an appropriately qualified and experienced attorney.
Such an attorney may be of great assistance in obtaining a dismissal
of the case by the probable cause panel or in negotiating a favorable
settlement of the case.
Furthermore, in certain types of investigations, the DOH may be attempting
to obtain an emergency suspension of your license. This is usually the
case if the investigation involves allegations of drug abuse, alcohol
abuse, mental impairment, sexual abuse, unpaid student loans or fraud.
If there is an emergency suspension of your license, your professional
license will be suspended (and you will be unable to work in that profession)
until the entire matter is completed and finalized, which may be a year
or more, even if you are found to be innocent. An experienced attorney
may help prevent this from occurring.
Again, even the most innocuous response on your part could be used
against you to prove part of the charges against you. Do not fall into
this trap.
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