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Florida Pharmacists Must Use E-FORCSE To Combat Opioid Abuse

By: Saamia Shaikh, Esq., OMS-III

In 2011, Florida legislator’s enacted the Prescription Drug Monitoring Program, also known as, the Electronic-Florida Online Reporting of Controlled Substances Evaluation (“E-FORCSE”). The program has legally expanded the role of dispensing pharmacists by requiring them to report the distribution of controlled substances.

 

E-FORCSE requires dispensers of controlled substances to report, within seven days, information regarding the prescriber and the patient for any prescription filled for controlled substances. Specifically, a patient’s demographic information, DOB, gender, as well as the prescriber’s demographic information, DEA number, NPI number, and license number must be reported. Additionally, dispensing information such as the dispenser’s DEA number, Rx number, date written, date filled, refill number (if applicable), NDC, quantity/strength dispensed, and payment type must also be reported. The failure to report a controlled substance willfully and knowingly as required by section 893.055 Florida Statutes constitutes a first-degree misdemeanor.

 

As of 2014, the Florida Board of Medicine reported opioid-related deaths had decreased by 41%.  Nevertheless, Florida remains a leading state in terms of opioid abuse with an estimated 3,900 deaths arising from opioid abuse and overdose in 2015.

 

On May 3, 2017, Governor Rick Scott declared Florida in a state of emergency due to the opioid epidemic. Pursuant to the Governor’s Executive Order 17-146, Dr. Celeste Philip, the Surgeon General of Florida, declared this matter a public health emergency, statewide, and issued a standing order for naloxone, an opioid antagonist that is commonly used to treat and reverse opioid overdose. The order authorizes pharmacists to dispense naloxone via either an auto-injection delivery system or via intranasal spray to emergency responders such as firefighters, emergency medical technicians, paramedics, and law enforcement officers. As a result, pharmacists do not require a script from physicians to dispense naloxone to emergency responders. Emergency responders are shielded from civil and criminal liability under Florida’s Good Samaritan Act if the life-saving treatment is done in good faith and with the exercise of reasonable care.

 

The current state of emergency in Florida is a tremendous opportunity for pharmacists. In 2015, the Fifth District Court of Appeal in Oleckna v. Daytona Discount Pharmacy held that that pharmacists owe a duty of reasonable care that extends beyond merely filling a script written by a physician; “robotic compliance” would not suffice. Pharmacists are being held to a higher standard of care and thus must independently evaluate every situation before dispending controlled substances to a patient. In their evaluation, E-FORCSE is an additional tool pharmacists can consult before filling a prescription. If a pharmacist suspects “doctor shopping” or determines that a patient is improperly and excessively presenting scripts for controlled substances, he or she may legally refuse to fill such a prescription. Pharmacists also have the option of calling and discussing any issues with the prescribing physician before reaching a conclusion about filling a questionable prescription. In fact, pharmacists are being held increasingly liable for filling scripts without independent investigation and must assess the reasonableness of the prescription including: (1) the reasonableness of the dosage of any medication prescribed by a physician; (2) the frequency by which the respective medication is to be taken; (3) as well as the quantity of pills to be dispensed.

 

While physicians may be aware of E-FORCSE, they do not actively use or reference it. Surprisingly, physicians were reported to be a minority amongst the class of users reported. An article published in the International Journal of Emergency Medicine by Young et. al. in 2017 shed some light on this issue, revealing that emergency room physicians’ use of E-FORSCE was low due to barriers in access and due to a lack of formal training of how to use the program.

 

While the duty of a pharmacist is not clearly defined, recent case law in Florida as well as the expanding role of pharmacists suggests an elevated duty of care owed as well as a greater exposure to liability. Thus, it is imperative that all pharmacists be cognizant of their professional duty of care owed and be familiar with all their options in a dubious situation, especially given the current climate of abuse in the state.

Saamia Shaikh, Esq., OMS-III

Jamaal Jones Moderates SFMGMA and NAHSE Event


 

On August 24, 2017, Jamaal Jones moderated an event that was organized by the South Florida Medical Management Association (SFMGMA) and the National Association of Health Services Executives (NAHSE). The event was titled “Great Healthcare Leadership Wanted: Navigating Your Career.” 

 

The panelists diverse employment backgrounds allowed them to offer very insightful perspectives on climbing the ladder in the healthcare industry. The panelists discussed a broad range of topics such as:

 

  • Factors that contribute to the successful ascendancy into high level leadership positions
  • Gaining visibility in the work place & community
  • Building a reputation, effective networking, and navigating the workplace
  • Pursuing continuous education opportunities
  • Strategies to effectively lead a team
  • Finding & Managing relationships with mentors and sponsors
  • Impact of Community Engagement
  • How to succeed in the job market after taking some time off
  • Professional Enhancement Tactics and Effective Job Applications
  • Gaining Industry Knowledge, and online profile development

 

Mr. Jones is available to moderate or act as a guest speaker at your event. Mr. Jones can discuss a broad range of topics including, but, not limited to Healthcare law, Corporate law, business development, entrepreneurial skills, successful networking, or motivational speeches for success in achieving your goals.

 

To find out more details please contact Mr. Jones at jrj@joneshealthlaw.com or my phone (305)877-5054.

Jamaal Jones Attends Palm Beach Pediatric Society Meeting

 

On August 30, 2017, Jamaal R. Jones, Esq. attended a Palm Beach Pediatric Society Member’s Event. There was a social hour followed by a two-hour presentation titled “Back to School — It’s Time to Sleep! A Medical and Behavioral Approach to Sleep Disorders in School-Age Children and Adolescents”.

 

The objective for the presentation was for attendees to be able to: (1) Describe how to take a sleep history; (2) Differentiate the categories of sleep disorders; and (3) Summarize the different techniques for evaluation and management of sleep disorders.

 

The event was held at the West Palm Beach Marriott.

Negotiating Malpractice Insurance in Physician Employment Contracts

Medical Malpractice Insurance is an essential part of any physician’s practice. According to the American College of Physicians, “Medical Malpractice” insurance is a specialized type of professional liability insurance that covers physician liability arising from disputed services that result in a patient’s injury or death. Injuries may present themselves immediately or at some time in the future. Malpractice insurance requirements will vary depending upon several factors including, but, not limited to how long you have been practicing, the size of your practice, specialty, prior claims filed against you, etc. Many providers receive their malpractice insurance  through their hospital employer while independent physicians must purchase their own. You should carefully examine your insurance policy to determine whether your coverage is for “claims-made” or “occurrence”.

 

Claims-Made

A “Claims-Made” policy protects physicians for treatment that was provided from the first day of coverage through the expiration date. Since coverage ends on the expiration date you much always renew your claims-made policy on the expiration date to continue coverage without any gaps. Each year that a claims-made policy is renewed the retroactive date remains the same. The renewed claims-made policy covers claims that are filed during the policy year for incidents that occurred on or after the retroactive date. This allows for previous years to be covered under the current policy. In short, if you continue to renew a claims-made policy the protections in place will continue for any covered incidents that occur between the retroactive date and the expiration date. Any injuries that occurred prior to the retroactive date or after the policy has expired are not covered, which is why continuously maintaining this type of policy is important.

Claims-made policies allow you to increase your policy limits or add new coverage as needed or when new coverages become available. A claims-made policy allows an insured to transfer their coverage from one insurer to another without purchasing tail coverage, which will be discussed below. This only applies if you have an active claims-made policy that is transferable to another insurer that offers prior acts coverage for this claims-made policy. In this instance, the new insurer will rollover the retroactive date from the previous policy into the new policy. The new policy now covers the same period as the old policy since it includes the retroactive date. Unlike occurrence coverage, claims-made limits do not restore each year. The policy limits remain the same as they were when you initially purchased the policy.

 

Tail Coverage

Claims-made policies don’t cover claims made after the expiration of the policy, so you will have to purchase “Tail” coverage to continue coverage. Tail coverage (aka Extended Reporting Endorsement) is very important if you have been covered under a claims-made policy and are changing insurers, switching employers, or retiring. Tail provides malpractice coverage during the transition for injuries that may have occurred in the past. Tail allows the policy holder to have continuous coverage from the policy’s retroactive date to the policy expiration date. Any claims that are filed during that period are protected. To obtain tail coverage you must pay a one-time fee shortly after cancellation of a policy, but it can be as much as 1.5 to 2 times a typical annual malpractice insurance premium. Again, if you are transferring coverage from one insurer to another insurer tail policy coverage may not be necessary if the new insurer applies a retroactive date to your old policy.

 

Occurrence

Most physicians will opt for occurrence coverage where available. Occurrence policies protect you for treatment rendered during the entirety of the policy period, no matter when the claim is reported. An occurrence policy will still defend you against claims even after the policy has expired. This policy offers permanent coverage for incidents that occur during the policy period. Additionally, occurrence limits “restore” each year so that claims paid for incidents arising from one policy year do not deplete limits available to cover claims from other years. Each year that this type of policy is in effect constitutes a distinct set of limits. The amount of coverage in each year of coverage is aggregated annually to increase the limits.

 

Here are a few questions to Ask yourself

(1) What kind of coverage do I have?

(2) What are the policy limits?

(3) Do I have tail coverage?

(4) What type of incidents does my policy protect me from?

(5) Is this policy transferable?

(6) Will the new insurer retroactively date the new policy?

 

Final Reminders

*When negotiating hospital employment, physicians should ask the hospital to pay for the tail coverage or ask the hospital to allow them to continue their current coverage so that tail coverage is not required.

*Many physicians who are employed by hospitals may be required to obtain tail since most hospitals are self insured and won’t provide the incoming physician with prior acts coverage.

*Purchasing tail coverage may not be a choice. Some hospital bylaws require physicians to maintain malpractice coverage even after they are no longer with that hospital in order to protect from any potential future claims that may arise for any treatment that was provided by the insured while on staff.

*Some hospitals will not grant staff privileges to a physician with any gaps in their malpractice coverage.

*You want to make sure that you policy is always in effect and that it covers all potential claims because legal fees and costs can cost you thousands of dollars. These legal costs are in addition to any settlements that would have to be paid to the injured patient, which can range from a few thousand dollars to millions.

*The claims-made policy is more flexible and more cost effective especially for those who are still in the early years of their practice.

*“Claims-made” to the insurance company after the coverage period ends will not be covered, even if the alleged incident occurred while the policy was in effect. In other words you would personally be on the hook for any damages!

*Occurrence policies are permanent, which means that you don’t have to renew the policy to maintain coverage for any gaps in coverage. You have separate limits each year you were insured so past claims limit your coverage in the years ahead. These types of policies are becoming increasingly difficult to find.

*You should negotiate tail coverage in an employment contract with a new employer.

*Tail Coverage is only necessary when a Claims-Made policy expires and the insured cannot secure “nose” coverage for prior acts from a new insurance carrier.

*Medical Malpractice usually does not cover liability arising from criminal acts or sexual misconduct.

***This blog post does not constitute legal advice and is only intended for educational purposes only. You should consult a licensed attorney in the State of Florida that specializes in healthcare law.***

Florida Senate Bill 8A Effect on Physicians’ Medical Marijuana Practices

Under SB8A, a “qualified physician” is a person who holds an active and unrestricted license to practice medicine in compliance with the physician education requirements. In order to be approved as a qualified physician, the physician must successfully complete a 2-hour course and exam by either the Florida Medical Association or the Florida Osteopathic Medical Association. The exam will not cost more than $500. This requirement also applies to those seeking to become Medical Directors in medical marijuana treatment centers (“MMTC”).

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