Reporting Licensing Board Action One State to Another State

Atlanta Healthcare Law Attorney

I'm Frances Cullen. As a professional licensing attorney, we've received substantial number of inquiries as to whether an individual must report a licensing board action in one state to another state and whether out of state licensing actions may affect one's license in the State of Georgia. We've also respond to a substantial number of questions from licensees who were sanctioned in another state but who have failed to report that sanction to other licensing boards, and are faced with potential repercussions.

Answer to these questions are individualized to each licensees' facts and to the states involved, and the consequences to one's license in the state of Georgia or to other states can be severe. Board actions in other states often prompt what we call "reciprocal action" in other states and a failure to report a board action in one state to another can be another disciplinary action and result in additional charges that may be even more severe than the underlying issue. These are serious issues that could ultimately affect your license and your ability to practice your profession.

I therefore urge you to seek legal counsel familiar with these issues to provide you with solid advice that how and when and what potential defenses you might have in reporting these types and in dealing with these types of legal actions.

At Levy Pruett Cullen, we have years of experience in addressing these issues. In over 25 years of practice and 20 years in defense practice, we have significant experience with licensees who have faced licensing actions in other states, have reported or have reciprocal action pending and we can guide you through this process to best resolve these issues. 

Are You a Dentist with a Licensing Board Case and Administrative Issue?

Dentist with Licensing Board Issue

If you are a dentist with a licensing board case, administrative issue, or criminal case, we have 25 years of experience we will bring to bear in providing you with the best legal representation possible for your case.

We are knowledgeable and experienced with the laws and rules regulating the practice of dentistry in the State of Georgia. And we're familiar with the Georgia Board of Dentistry and can therefore guide you through the investigative process and understand the issues you may be facing with a board matter.

A board case begins with the complaint followed by an investigation, followed by a board review. We know the Georgia Board of Dentistry and we are also familiar with the other agencies that might seek potential action against your license or present you with other legal issues.

We have the knowledge and experience to best provide you with sound, legal representations with these issues.

At Levy Pruett Cullen we have 25 years of experience with dental issues that we will bring to helping you in resolving your case. 

Proposed Rule ARPN Full Practice Authority In Veteran Hospital Care

Advanced Practice Registered Nurses Full Practice Authority

The U.S. Department of Veteran Affairs (VA) recently proposed a rule which would allow Advanced Practice Registered Nurses (APRN) full practice authority when they are acting within the scope of their VA employment. Full practice authority means that APRNs would be able to evaluate patients, diagnose, order and interpret tests, prescribe medications and manage treatments. There are several types of APRNs: Certified Nurse Practitioner, Clinical Nurse Specialist, Certified Registered Nurse Anesthetist and Certified Nurse Midwife; each must be nationally certified to be employed by the VA.

The rule was proposed to ostensibly improve veteran access to care and resources.

THE VA SEEKS TO INCREASE VETERAN CARE AND RESOURCES AVAILABLE

Under current law, APRNs are not permitted full practice authority and must be supervised by a physician when administering certain treatments and care. Supporters of the proposed rule argue that the quality of healthcare provided is often lacking due to a shortage of personnel. Hence, if APRNs were allowed full practice authority, then veterans would have greater access to healthcare.

When a federal agency proposes a rule, it must provide a period for public comment. After the period for public comment closes, the agency must base its decision on whether or not to adopt the rule as policy and consider comments it received. If commentary provides new data that causes the agency to amend the rule substantially, then it must provide a new comment period based on the supplemental proposed rule.

THE GEORGIA COMPOSITE MEDICAL BOARD FEELS A PHYSICIAN-NURSE TEAM APPROACH IS BEST

While the proposed rule to allow APRNs full practice authority in the course of VA employment has received positive support from the American Nursing Association, the Georgia Composite Medical Board (GCMB) has not agreed. The GCMB states in its comment to the VA proposed rule that the rule would allow APRNs to provide services without clinical oversight of a physician and, under current Georgia law, APRNs already have the capacity to perform many of the actions that would be granted under the new VA rule.

Citing a team-based care approach, the GCMB argues that eliminating the doctor/nurse team would create a dangerous level of care and place veterans at increased.

Levy Pruett Cullen is dedicated to the defense of licensed professionals not only in court, but in administrative proceedings and employee actions before the VA as well. A substantial aspect of competent legal defense is staying current with all laws affecting your professional license. Our expertise in the highly specialized field of professional license defense means we will always be abreast of current laws and proposed changes at every level of government. If your professional license is at stake due to mistake, criminal conduct or otherwise, please contact us today.

Medical Professionals Often Bend The Rules In Favor Of Patient Care

When medical students begin the arduous process of earning their Medical Degree, they take an oath. The Hippocratic Oath is one of the world's oldest medical texts and, in its modern adaptation, it provides in part that a physician "will apply, for the benefit of the sick, all measures which are required..."

A doctor is tasked with the duty of making the best decisions for his or her patients. There are times, however, when regulations and laws appear to get in the way of a patient's best treatment option. The practice of medicine is one of the most regulated professions in the United States, and as such, it should come as no surprise that occasionally a medical professional must make a decision to either follow the letter of the law or bend the rules and provide a patient with the care she or he has deemed necessary for the patient's care.

Examples of rule bending in the medical profession can vary widely. For example, a pharmacist may decide to give a patient a few extra pills to hold the patient over until his prescription is renewed. In the state of Georgia, a pharmacist is not allowed to write prescriptions. Or a medical doctor may bend the rules of a clinical trial to get his or her patient on the list, even though this is prohibited.

In the State of Georgia, Advanced Practice Registered Nurses (APRNs) are prohibited from providing many aspects of patient care unless a supervisory physician has delegated the task to them. For example, an APRN is not allowed to order certain types of testing without doctor approval. This restriction may at times cause the APRN to have to choose between ordering a test the nurse deems immediately necessary or waiting to first obtain appropriate permission.

Rule Bending Can Result in License Revocation Or Worse

Rules and laws are put into place not only to prevent harmful behavior, but also to develop a consistent standard of care among all professionals. Medical malpractice lawsuits often hinge upon whether or not a medical professional followed the accepted and appropriate standard of care when treating a patient.

The penalties for professionals who are found to have "bent the rules" can be severe. It is a criminal offense to provide an individual with a controlled substance if they do not have a valid prescription. You might be risking your license, or worse, you could end up in prison for something that you thought was in the best interest of a patient.

IT IS NEVER TOO SOON TO CONSULT AN ATTORNEY

Levy Pruett Cullen specializes in the needs of licensed professionals in Georgia, aiding clients in balancing their practice with state and federal regulations. Many often think attorneys are there for you after you are the subject of an investigation, but legal counsel can be an invaluable tool at any time during your practice. Oftentimes medical professionals bend the rules because they misunderstand them or because they do not realize the penalties associated with deviating from the rules. If you are facing investigation, or if you are unsure whether or not your actions may result in disciplinary action, please call us today.

The False Claims Act: The Department Of Justice Continues Aggressive Investigations

The False Claims Act

The False Claims Act (FCA), passed by Congress in 1862, is a federal law that aims to prohibit individuals, companies and contractors from defrauding federal governmental programs. The FCA has been amended several times in its 100 plus year history, and as it now stands it generally prohibits:

• Knowingly making a false claim for payment
• Knowingly making false statements or using false records to make a fraudulent claim
• Conspiring to violate the FCA
• Falsely certifying the type or amount of property used by the government
• Certifying receipt of property on a document without knowing the accuracy
• Knowingly buying government property from an unauthorized officer of the government
• Knowingly making or using a false record to avoid or decrease an obligation to the government

Penalties imposed by the FCA include a civil penalty ranging between $5,500 and $11,000 per each false claim as well as triple the amount of the government's damages.

Nicknamed the "Lincoln Law" because it was enacted during President Lincoln's presidency, the law has no doubt experienced several amendments and changes throughout the years.

2016 WILL LIKELY SEE CONTINUED RECOVERY FOR THE DOJ UNDER THE FCA

Last year, the Department of Justice (DOJ) sought and obtained over $3.5 billion in settlements and judgments from cases involving fraud under the FCA. Current trends indicate that the DOJ is likely to see similar recoveries in 2016.

Experts point to several items assisting the DOJ in these significant crackdowns. For example, the government investigators can analyze a small sampling of suspicious activities on a local level, and then, if the company is operating on a larger scale, the investigators can apply their findings on a larger scale where similar facts and conditions present themselves. Essentially, this allows the DOJ to cast a wide net with fewer resources. As you may imagine, this particular strategy has been the point of lawsuits as many claim that this method lowers the government's burden of proof. So far, courts have sided with the DOJ.

Additionally, the DOJ mandates that, per the Affordable Care Act (ACA), overpayments must be remitted no longer than 60 days after a medical provider is put on notice of the overpayment. The DOJ recently clarified that the clock begins to run as soon as the entity is given notice.

A few of the other issues bolstering DOJ lawsuits under the FCA include the fact that an entity can be investigated for false claims if they submitted the claim in violation of any Medicare rule even if the entity did not certify the claim. Additionally, physician compensation remains under scrutiny where it appears that hospitals and physicians are collaborating with respect to the value and volume of referrals.

THE DOJ INCREASINGLY TARGETS INDIVIDUALS UNDER THE FALSE CLAIMS ACT

The DOJ targets not only large entities under the FCA, but individuals as well. Recently, the DOJ has incentivized corporations to name individual employees contributing to the fraud in exchange for corporation credits. Individuals risk not only penalties and fines through the FCA, but disciplinary action and potential loss of licensure as well. If you are being investigated for fraudulent claims, you need an experienced attorney dedicated to the defense of liscensed professionals. With a proven successful record for favorable client results, Frances Cullen will aggressively defend your license in the event of an investigation. Contact Levy Pruett Cullen today!

The Centers for Medicare & Medicaid Services Clarifies the 60 Day Overpayment Rule With Recent Regulation

Medicare Overpayment Rule

An investigation relating to Medicare overpayments may be costly, time consuming, and result in an outcome that can severely damage your practice. It is very important to report overpayments promptly, and recent rules provide clarity to those that discover that they have been over paid by the Government.

While the Centers for Medicare & Medicaid Services (CMS) finalized rules requiring the return of overpayments under Medicare Parts A and B in 2014, a similar rule pertaining to Parts C and D had not been issued until early 2016.

In February of this year, CMS finalized rules and provided clarification regarding overpayments. Section 1128J (d provides that if a person receives an overpayment, that person must report and return the overpayment and notify the agency or contractor in writing of the returned overpayment and the reason for the return.

The statute further defines a "person" as any of the following:

• A provider of services
• A supplier
• A Medicaid managed care organization
• A Medicare Advantage organization
• A PDP sponsor

Overpayments must be returned no later than 60 days after the overpayment was identified or the date any corresponding cost is due if applicable. Previously, there had been uncertainty as to when exactly the clock begins to tick on the 60 day timeline, however, this new rule appears to clear up at least some ambiguity.

THE NEW RULE ALLOWS TIME FOR INVESTIGATION

With the new rule, CMS intends to clarify the meaning of overpayment identification, the lookback period, and the methods by which the overpayment is to be returned. The Social Security Act does not define the meaning of "identification" but the new CMS regulation provides that a person has identified the overpayment when the person has or should have quantified the amount of the overpayment through reasonable diligence.

Additionally, the rule provides that a provider or supplier is not responsible for overpayments made if they were made 6 or more years ago. This rule is put in place so as not to put an undue burden or additional unreasonable costs on the supplier or provider.

PENALTIES FOR VIOLATION OF THE RULE ARE SEVERE

Violation of the new rule and the laws it applies to can result in liability under the False Claims Act (FCA) and Civil Monetary Penalties Law (CMPL). Penalties under the FCA include up to $11,000 in fines for each false claim and up to three times the amount of damages claimed by the government. Under the CMPL, a supplier or provider may be liable for up to $50,000 for each false statement.

In addition to the statutory penalties, providers or suppliers found to be in violation of the overpayment rule may be excluded from federal healthcare programs in the future.

INVESTIGATIONS FOR FRAUD CAN COST YOU MORE THAN YOUR LICENSE

As of February of this year, we now have clarification on Medicare Parts A, B, C and D; however, it should be noted that we still await final rules on Medicaid. Although the new rule provides clarification, if you believe you have been overpaid you must adhere to the complicated notice requirements found in the rule and, if you are investigated for violation of the overpayment rule, you may face serious consequences. Levy Pruett Cullen is dedicated to helping you defend your professional license in both civil and criminal investigations. 

Licensed Professional Client Gets Advice

Healthcare Attorney Atlanta

When we get a call from an individual or small business regarding a potential issue - we tell them first - to calm down, not panic and wait to get legal advice. It is a mistake to move ahead and meet with the board investigator or a criminal detective without legal counsel.

Criminal investigators and board investigators are forensically trained to prosecute your case. They are trained to find errors in what you have done and they have gotten a first impression from whoever filed the complaint or whoever brought a matter to their attention. They are geared toward that negative inference.

What we want to do is take control of that and to guide you through that process. You should never speak to a board investigator or an investigative interviewer without legal counsel. Anything you say can and will be used against you. There are different rules that apply to licensing board actions and licensing board actions are not criminal cases. You are not given the warnings that you would be given in a criminal case and you think you can speak freely, but all that information will be used against you. Criminal detectives will often say that it's in your best interest to speak to them but they are geared towards your prosecution. They are not your friends. So my best advice is to slow down, don't panic, obtain legal advice and let our lawyers work to intercede in that process and slow it down.

There's a mistaken impression that if I get a lawyer, I'll look guilty; however, all of the people you're dealing with, would hire a lawyer in a heartbeat. What you need to realize is that a lawyer is here for your best defense. When I need banking advice, I call a banker. If I need financial advice, I call a financial planner. And if you need legal advice, you should call a lawyer.

The Legal Minefield of Dental Law

Medical malpractice might make the headlines, but that does not mean that dental malpractice never happens. In fact, perhaps because of the less stringent methods of professional oversight and fewer regulations on practitioners, dental malpractice claims constitute a significant portion of the overall number of medical malpractice claims in the United States every year. According to the American Board of Legal Medicine, 12.1% of medical malpractice payments were made against dentists.

Like many legal issues in the medical community, there are a handful of elements at play to explain these numbers.

Lack of Credentialing a Piece of the Puzzle

While medical boards and hospitals require that doctors become credentialed in order to perform specific procedures, state dental boards tend not to be involved in this process. The hands-off attitude often leads to dentists performing serious dental procedures that they have little to no formal training in. This does not happen on the medical side of the field, due to the strict oversight that credentialing committees have, and their ability to withhold surgical privileges to medical professionals that do not hold up to their standards of training.

Dominance of Small Practices Play a Part

Medical doctors and surgeons tend to congregate in specialized practices or in hospitals. The field of dentistry, however, is largely comprised of general practitioners who operate their own business, either on their own or with a very small number of other dentists.

The predominance of general dentists who run a solo practice in the world of dentistry has a spillover effect: Most of those who serve on dental boards are, themselves, general dentists who run a solo practice. As a result, these boards are highly unlikely to pass regulations that make it more difficult for general dentists to practice advanced oral surgeries.

Lack of Oversight Creates a Greater Need for Legal Advice

Unfortunately, the freedom that comes with a lack of oversight in the dental community has a downside, as well, which can impact both landed dentists, as well as those professionals who are just starting to get into the field.

For dentists with an established dental practice, the loose regulatory world that they work in often leads to decisions that can result in serious financial liability. It is a sensitive decision as to whether a dentist should perform an unfamiliar dental surgery that potentially carries a high risk to your patient is a serious decision to make. It could be a big boost to your business. If something goes wrong, however, you could be facing a lawsuit.

For new dentists, the lack of a local regulatory scheme can make it difficult to determine what has to be done to begin a new practice. Even though there are fewer requirements to be met, missing a single one can delay the opening of your practice or can later result in serious errors that could undermine your practice once it is established.

GEORGIA ATTORNEYS REPRESENT DENTAL PROFESSIONALS

Whether you have a thriving dental practice or are just getting your feet on the ground, having a solid legal representative on your side to steer you through the legal issues is a must. The attorneys at Levy Pruett Cullen have extensive experience representing dentists and other health care professionals. Contact use for legal work on all of your administrative or legal defense situations.

2016 Public Policy Agenda for Georgia Pharmacists

There are three public policy goals the Georgia Pharmacy Association has identified for 2016, based on responses to a questionnaire given by member pharmacists. Those three areas include (1) changes to Georgia's prescription drug monitoring program, (2) clarifying the role of the pharmacist to patients taking legal cannabis oil in Georgia, and (3) defining the term "direct supervision" in reference to pharmacy technicians.

1. Georgia's Prescription Drug Monitoring Program

In 2011, Georgia became one of the last states in the nation to implement a prescription drug monitoring program (PDMP) as part of the Patient Safety Act. While the program has already helped tremendously in several areas, and addiction rates to lortab, oxycodone, and hydrocodone have dramatically decreased over the past five years, there are other areas in which the PDMP requires critical overhaul. It is particularly addled by funding concerns, limitations on access, and open communications.

a. Funding Issues

The PDMP was initially funded in 2013 through a $400,000 grant from the Bureau of Justice Assistance, so there was no cost to the state of Georgia. Through lean budgeting and a small staff, that money was made to last through September of 2015. The Georgia legislature did approve an additional $250,000 in funding in March of 2015 to keep the PDMP operational, but what happens when that funding runs out? The Georgia Pharmacy Association favors a permanent solution of state funding of $200,000 to $250,000 annually, rather than federal funding through the Bureau of Justice Assistance, which comes with federal reporting requirements.

b. Access Limitations

Currently, only pharmacists are required to enter Schedule II prescriptions into PDMP; accessing the system is voluntary for physicians. This means that patients are still falling through the cracks. The Georgia Pharmacy Association advocates allowing both doctors and pharmacists to delegate responsibility for entering prescriptions into the PDMP, not allowed under the current version of the law.

c. Communication Problems

Georgia law prevents pharmacists and doctors from communicating without court order; this works as a detriment to the goal of identifying those with drug seeking behavior. At the time the law was passed, lawmakers were very concerned with patient privacy issues. Neighboring states allow doctors and pharmacists to see patient records across state lines; the Georgia Pharmacy Association will urge Georgia to do the same by building interoperability into the PDMP.

2. The Role of Georgia Pharmacists with Cannabis Oil

While still illegal under federal law, it is now legal for some Georgia residents to possess cannabis oil. However, there is not currently any role for the pharmacist regarding patients taking cannabis oil. The Georgia Pharmacy Association advocates pharmacist involvement, not pharmacy employment. This means that instead of suggesting cannabis oil be sold through existing pharmacies, will advocate a position that all those who sell cannabis oil in Georgia must employ a pharmacist, to review the use of cannabis oil after reviewing the patient's medication profile, advising on side effects and contraindications, and ongoing monitoring for effectiveness.

3. Supervision of Pharmacy Technicians

The final area of legislative focus for the Georgia Pharmacy Association relates to the supervision of pharmacy technicians. Georgia law requires that pharmacists be present and personally supervise the activities of technicians at all times. A strict interpretation of these laws really makes the supervision laws impossible to comply with, so the Association will be looking to revise the language of the existing laws to allow pharmacists to perform the core functions of their jobs without breaking the law.

CONCLUSION

While those are the three legislative priorities outlined this year by the Georgia Pharmacy Association, they are also continuing to work towards longer term goals, the most important being the continued pursuit of full health care provider status for Georgia pharmacists; with a focus on medically underserved communities. Another long-term focus of the Association is the prior authorization requirements of some insurance companies before a new prescription can be filled; particularly with Medicaid patients. The Association will pursue the implementation of real-time prior authorization systems, so there are no lapses in patient medication. The Georgia Pharmacy Association identifies collaborative practice agreements as a third long term goal, and particularly some clarifications in the language of the rules related to immunization expansion.

With those short term and long term goals identified for 2016, it looks to be one with many positive changes for pharmacists on the horizon. If you are a licensed pharmacist in Georgia and would like more information on Georgia law governing pharmacists, contact the experienced healthcare attorneys at Levy Pruett Cullent today.

New Professional Conduct Rules

New Professional Conduct Rules: Georgia Medical Board Requires Chaperones During Certain Physical Examinations

As of May 2016, it is a violation of professional conduct for a medical professional to perform a "physical examination of the breast and/or genitalia of a patient of the opposite sex without a chaperone present." For all other examinations, a chaperone is suggested but not required. The board recommends that a chaperone be a health professional, but this is not a requirement. It is also important to note, that even though a chaperone is required for the exam, the patient and physician should be allowed an opportunity for private conversations.

SHOULD I ALWAYS PROVIDE A CHAPERONE EVEN IF THE EXAM FALLS OUTSIDE OF THE SCOPE OF RULE 360-3-.02(12)?

The Board does not require a physician to utilize a chaperone if the patient is not of the same sex or if the exam is not a breast or genital exam. Further, the physician will not be penalized for refusing to provide a chaperone if the exam does not fall within the rules' guidelines, even if the patient specifically requests one. So, should you always provide a chaperone?

If we know one thing about today's understanding of gender, it's that there is a growing trend to upend typical/binary gender identities. You've most likely seen heated discussions about transgender bathrooms, and Georgia is no stranger to its own debates regarding the matter. Regardless of how your beliefs relate to this ongoing conversation, your license could depend on being 100% sure of a person's gender, despite how they define themselves, before performing an exam upon the patient's breast or genitalia. Violation of this rule can result in license revocation, suspension, fines and/or reprimands of a physician or a physician's assistant.

Where the nature of the examination does not bring Rule 360-3-.02(12) strictly into play, the Medical Board does make recommendations based on the spirit of the rule. The Medical Board suggests consideration of the following in determining if a chaperone is required. The Physician should:

• Respect the patient's dignity
• Maintain a positive atmosphere
• Encourage patients to request chaperones through clear signage or a conversation
• Honor patient requests to have a chaperone
• Provide clear explanations of exam components
• Provide dressing gowns with full coverage
• Provide a private room for changing

Some of these suggestions may seem obvious, but they do give good indication of the Board's intended purpose.

HOW DO I MAKE SURE I AM ADHERING TO CURRENT PROFESSIONAL CONDUCT RULES IN THE STATE OF GEORGIA?

Seemingly, there are three ways to approach the new rule and the added guidelines provided by the Georgia Composite Medical Board:

1. You could choose only to provide a chaperone for exams involving the breasts or genitalia of the opposite sex but not the same sex;

2. You could choose only to provide a chaperone for exams involving the breasts or genitalia of the opposite sex and provide chaperones for the same sex only if requested or;

3. You could choose to provide chaperones for all patients, regardless of sex, if the exam falls under the Rule 3603-.02(12) requirements.

It seems like an easy answer, but at Levy Pruett Cullen, we know these issues are not black and white. Office dynamics and economics often play out in different ways and what seems like the obvious, failsafe route, may not be your best approach. Our office provides specialized knowledge that works for you. All choices are not created equal, but we have the experience and expertise to help you make the choice that is right for you. It is never too early or too late to contact us.