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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Pain Management

Pain Management Physician Defense, Pain Management Clinic Representation, Pain Management Physician Legal Representation, Pain Management Clinic Defense, Defense of Allegations of Over-prescribing Narcotics and Pain Medications, Pain Medicine Physician Representation


The Health Law Firm and its attorneys have represented physicians, pharmacists, nurses, clinics, dentists, pharmacies, health facilities and other health care providers in different cases involving allegations of over-prescribing narcotics and pain medications. These include criminal investigations by local police and law enforcement authorities, investigations by the U.S. Drug Enforcement Agency (DEA), complaints against professional licenses by the Florida Department of Health, investigations and prosecutions by the Medicaid Fraud Control Units (MFCU), and other types of cases. Having attorneys familiar with the medical standards of care and guidelines for prescribing narcotics and having access to expert medical and pharmacy professionals who can testify as expert witnesses in such cases is also crucial. We have represented professionals in administrative investigations and administrative hearings at both the state and federal level.

State and county law enforcement authorities appear to be more aggressive in investigating and charging doctors and clinics involved in pain management prescribing and dispensing. With the new law in Florida that requires every pain management clinic to be registered as of January 4, 2010, more and more enforcement actions are likely. Many of these involve the use of undercover agents posing as patients. Physicians who treat a large number of pain patients with prescription medications should be very careful in enuring their patients are legitimate patients with legitimate medical problems and that they are following proper pain management protocols in their prescribing practices.

We are also aware of a recent instance where a Department of Health (DOH) medical malpractice investigator showed up unannounced after noon in a pain management clinic with a DOH administrative subpoena which required that a copy of a patient’s medical records be delivered to her by 2:00 P.M. the same day. The patient had allegedly died from a drug overdose from medications prescribed at the clinic. The investigator demanded the record an would not leave without it. In effect, this was a search warrant, not a subpoena.

What few people know is that the Department of Health and the Florida Surgeon General do not have independent enforcement authority for subpoenas and do not have search warrant authority. A search warrant can only be issued by a judge, based on probable cause and sworn testimony. A proper search warrant will be in the nature of a court order and will be signed by a judge, not an administrative agency official. Any subpoena must allow a “reasonable” period of time to produce a copy of the record. For most subpoenas in civil cases, “reasonable” is defined as ten (10) days; however, administrative rules and regulations enacted by the various professional boards under the Department of Health allow physicians up to thirty (30) days to produce copies of records.

In addition, there are many objections that a physician or clinic can make and should make to production of such records on patients. In some cases, the records may contain HIV testing or treatment information or drug and alcohol treatment information. These types of patient health information are treated as “super-confidential” and are not supposed to be released without the patient’s specific consent for such records to be released or by court order (after a hearing) that specifically addresses the “super-confidential” type of record. Once an objection to such a subpoena is filed, this cuts off the enforcement of the subpoena until the Florida Surgeon General goes to a civil court, obtains a hearing and obtains a court order signed by a judge.

At the first indication of a subpoena, search warrant, or investigation of any type, it is critical to retain an appropriately experienced health attorney to represent you before you respond.

Florida Legislature Passed New Pain Management Legislation on April 29, 2010

The Florida Legislature passed Senate Bill (SB) 2272 on April 29, 2010. This new law would repeal Sections 458.309(4), (5) and (6), Florida Statutes, relating to pain-management clinics and replace those sections with a new Section 458.3265, Florida Statutes. This new law would prohibit any pain-management clinic unless it is fully owned by licensed physicians or is licensed as a health care clinic under Chapter 400, Florida Statutes. Under the new law, the Department of Health can revoke the license of any pain-management clinic that is owned by or employs a physician whose DEA registration/number has been revoked, whose application to prescribe, dispense or administer controlled substances has been denied by any jurisdiction, or who has been convicted of (including deferred adjudication), pleaded guilty to or pleaded nolo contendere to any felony concerning controlled substances. If the Department of Health revokes the license of a pain-management clinic, the physicians and other persons in control of the clinic are prohibited from obtaining a license for another pain-management clinic for five (5) years. The new law has yet to be signed by Governor Crist as of this date (May 18, 2010).

Florida Legislature Considering Bill to Require Licensure of All Pain Medicine Clinics

As of this writing (May 30, 2010), legislation is currently pending before the Florida Legislature to require all pain management clinics (previously not required to be licensed) to obtain a license as a health care clinic, under Florida’s Health Care Clinic Licensure Act, contained in Chapters 400 and 490, Florida Statutes. This procedure requires a license application, license fee, inspection/survey, a medical director (with a detailed, specific medical director’s agreement), periodic renewals, and other requirements.

Click here to see an actual letter from the Florida Department of Health concerning Voluntary Relinquishment.