Category Archives: News & Resources

Lubell Rosen’s Own Norman Segall, Obtains Reversal of Contempt Ruling by now-U.S. Attorney

A Florida appellate court has overruled an order issued by the former Miami-Dade judge now serving as South Florida’s top prosecutor. The Third District Court of Appeal ruled on Wednesday that U.S. Attorney for the Southern District of Florida Ariana Fajardo Orshan erred in issuing a contempt order against Robert Orban during her time as a Miami-Dade Circuit judge. Orban, the respondent in dissolution of marriage proceedings with his ex-wife Susan Rorrer, submitted an appeal after Fajardo held him in
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Cannabis Industry Vertical Integration- Endangered By Choice Of Conjunction

If a recent decision of the Florida First District Court of Appeal (Florida Department of Health, Office of Medical Marijuana Use, et al. v. Florigrown, LLC, et al., No. 1D18-4471) is upheld, there likely will be significant restructuring of the medical marijuana industry in the State. The cause of this uncertainty lies in the Florida Legislature’s choice of one conjunction, “and” instead of “or”. Florigrown reviewed Florida’s scheme for regulating the medical marijuana industry through the development of a limited
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Does SB 732 require Physicians practicing at Surgical Centers to have Insurance?

On June 25, 2019 the Governor of Florida approved SB 732, a new statute modifying the rules related to office surgery and surgical centers. The question many bare doctors in Florida are asking is whether SB 732 requires doctors working at surgical centers to carry malpractice insurance. The answer is no it does not. While the new statute does require all MDs and Dos who work at surgical centers to maintain “financial responsibility”, it makes no changes to the existing
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FDA Acts to Regulate the CBD Market

It appears the days of unregulated CBD-based products are nearing an end. On July 22, 2019 the Food and Drug Administration (“FDA”) sent a Warning Letter to a major producer and distributor of CBD in Florida and elsewhere. The FDA reviewed the company’s web site, which accepted orders for various CBD-infused products. The FDA concluded that the CBD products were “unapproved new drugs sold in violation of” various provisions of the Food and Drug Act (“Act”). Further, the agency concluded
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What You Can Do if You Have a Surprise Medical Bill

NBC 6 Responds has heard from consumers frustrated over medical bill disputes. In some cases, they have owed thousands of dollars more than expected. Experts say there are steps to take if you find yourself with a surprise bill you can’t pay. Original Story Courtsey of NBC Miami Channel 6 News

Its Back! Binding Arbitration Requirements Between SNFs/Nursing Facilities and Residents

  The Centers for Medicare and Medicaid Services (“CMS”) recently published a Final Rule modifying this agency’s arbitration requirements for SNFs and nursing facilities (collectively, “Facilities”) that participate in the Medicare or Medicaid program. 84 C.F.R. 34,718 (July 18, 2019). Previously, on October 4, 2016, CMS published a Final Rule addressing the use of arbitration to resolve disputes between Facilities and their residents, or their family members or other guardians (collectively, “Residents”). 42 C.F.R. 483.70(n) (“483.70(n)”) The October 4 Final
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Can an Employee be Fired for Testing Positive for Medical Marijuana

The ADA Does Not Give an Employee the Right to use Medicinal Marijuana. Even the 14 States that Protect Employees do not Protect All Employees, Nor Give Blanket Rights to Use Medicinal Marijuana, Such as Still Banning Use at the Workplace. Recent Shifts in Law, and Trends in Law have Favored Employees Being Able to Use Medicinal Marijuana. The ADA Does Not Give an Employee the Right to use Medicinal Marijuana. Now that all but four states have Medical Marijuana,
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Disruptive Patients – What to Do?

DISRUPTIVE PATIENTS- What to do? A physician, who is a client of the firm, recently asked for our assistance in dealing with a new patient who already had disrupted the practice. Because of the disruption caused by this patient during their first encounter with the practice, the physician decided they did not want to run the risk of taking on this patient and having them further disrupt the practice. The physician reached out to us at the time the patient
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Do Websites Have to Comply With the ADA?

The sort answer to the question of whether websites have to comply with the ADA is yes. If the business has a physical location visited by the public, the website that establishes the online presence of the brick and mortar business must comply with the ADA. That is the short answer, and it is the conclusion that one can draw from seeing how successful cases against companies in Florida have been, and how prevalent they have been, in recent history,
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You can get Sued because you take certain Precautionary Measures in light of #MeToo

One of the most difficult things for an employer to do is decide how to respond to the #MeToo movement. It is a difficult thing to know what to do to react to the movement as an employer. On one hand you do not want to worry about a lawsuit, on the other hand you do not want to go overboard and turn your workplace into a miserable place to work because of militaristic over regulation of employee behavior. What
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SB 732 (the “Act”) and The Many Questions it Brings

As you may be aware, during its 2019 session the Florida Legislature passed a substantial revision to the State’s regulations concerning certain in-office surgical procedures. The new revision, SB 732 (the “Act”), amends 456.074, F.S. and adds 458.328 and 459.0139, F.S. (for allopathic and osteopathic physicians, respectively). Under the Act, certain liposuction procedures, Level II, and Level III office surgeries performed in a physician’s office that has registered with the Department of Health (an “Office”), unless the facility is in
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Marriage, Minimum Distributions, and Mayhem: A Discussion of IRA’s under Florida’s New Elective Share Statute

This article was originally published in June 2002 by Kristen M. Lynch for The Florida Bar Journal. The original article can be found here: source On October 1, 2001, Florida’s new elective share statute, new F.S. §732.2035(7), became effective. To most, this would not seem to be an event of utmost significance, but to those of us dealing in the world of IRA administration every day, this means change. Historically, IRAs and qualified plans have not been subject to probate
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The Top 5 Things Practitioners need to know about IRA’s Now; A Discussion of State Law, Case Law and other Considerations

This article was originally published in August 2004 by Kristen M. Lynch for The Florida Bar Journal. The original article can be found here: source Individual retirement accounts (IRAs) are most often thought of as tax-deferred accounts that the government conjured up in the 1980s to encourage Americans to save for retirement. With almost $10 trillion in tax-deferred retirement accounts, $2.5 trillion of which is estimated to be held in IRAs, they have become an estate and tax planning force
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When Good IRA’s Go Bad: Common Pre-and-Post Mortem IRA problems with Uncommonly Bad Results

This article was originally published in December 2005 by Kristen M. Lynch for The Florida Bar Journal. The original article can be found here: source Individual Retirement Accounts are tax-deferred accounts that, if handled properly, can be an effective vehicle for retirement and can be passed on to a surviving spouse or other heirs while retaining the deferral of income tax. The new IRA rules enacted a few years ago provide post-mortem planning opportunities in an area that previously had
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Thinking About Adding Medical Marijuana Referral to Your Practice?

Every Florida physician who serves as the primary care provider (“PCP”) for some or all of his or her patients should consider whether to become a “Qualified Ordering Physician” (“QOP”), with the ability to authorize Qualified Patients (“QP”) to receive medical marijuana (“cannabis”). Physicians in a number of specialties (i.e., pain management and oncology) are recognizing the value of cannabis for treating their QPs’ medical issues and are becoming QOPs. The number of Floridians who are QPs and using cannabis
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Mixed Rates of Pay & The Fair Labor Standards Act

Often times employees receive different pay depending on the job they are doing. This creates a legally complex situation when it comes to paying overtime to these employees and doing so in compliance with the Fair Labor Standards Act (FLSA). If the employee worked at two different pay rates, then which pay rate is the overtime calculated based upon? The answer is not simple, in some cases a blended rate may be appropriate, however, courts, including a recent decision by
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Tipped Employees can still sue under the Fair Labor Standards Act (FLSA) depending on their tasks.

For about thirty years the Fair Labor Standards Act (FLSA) Rule has been that a tipped employee who receives less pay per-hour, because they are a tipped employee, must spend 80% of their time at work doing activities that are tip generating. This means 80% of the employees, time had to be spent on tasks directly related to serving the customer, thereby directly generating tips. Hence, napkin folding, “opening the restaurant,” and other tasks would need to be kept to
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Florida Legislature Considers Bill To Require All Non-Provider Owned Practices To Become Licensed.

Under the Florida Health Care Clinic Act, most health care clinics not owned by a licensed physician or practitioner must apply for a license with the Agency For Health Care Administration (AHCA). The licensing process can be quite onerous and requires background checks of owners and certain employees, financial requirements, and inspections. Because the law was a result of investigations into personal injury clinics, a quirk in the language of the law made it possible for health care clinics that
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URGENT SCAM ALERT – Phony DEA Agent Contact to Doctors

To our physician clients and friends: We want to let you know about a phony DEA agent scam that was attempted on one of our physician clients the other day.  Our client texted one of our partners, advising that he was on the phone with a person who represented herself as a DEA agent, who was calling to inform the physician that his license was going to be immediately suspended and he was going to be arrested.  We were able
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Just because someone is A Manager does not mean they do not need to be paid Overtime under the FLSA

On February 28, 2019, a jury verdict of 2.9 million dollars was entered against Stake ‘N Shake, for not paying overtime to their managers. That amount is likely to be doubled by the Court within the two months, or so, because under the FLSA the amount the jury awards is often doubled as a legally mandated penalty against the employer. The issue is that the employees suing Stake ‘N Shake were managers, and they were still entitled to overtime. In
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Broward County attending physician held liable for $2,422,500.00 despite carrying malpractice insurance.

Another recent wrongful death lawsuit against an insured attending physician in Broward county demonstrates just how important personal counsel can be when the damages of a case threaten to exceed the limits of a physician’s malpractice insurance policy. In 2014, an attending physician, Dr. A.M., was sued for medical malpractice and the wrongful death of his hospital patient.  A family medicine doctor, neurologist and cardiologist were also named as defendants.  The case concerned a patient who presented with symptoms of
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Palm Beach Doctor held liable for $668,000 plus attorney’s fees, despite carrying malpractice insurance

Contrary to popular belief, medical malpractice insurance does not insulate a physician against personal financial exposure. In fact, most doctors in Florida only carry $250,000 in coverage when the malpractice verdicts commonly exceed $1,000,000.  You can do the math yourself.  Personal counsel can assist a physician by providing legal advice to best protect a physician against personal exposure when the damages of a case threaten to exceed the limits of the malpractice insurance policy. A recent wrongful death lawsuit against
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Workers with Varying Hourly Rates Have Variable Overtime Rates an Employer Must Pay Or Risk Getting Sued Under the Fair Labor Standards Act (FLSA)

Overtime seems like an easy concept; the employee is entitled to 150% of their regular hourly pay for every hour of overtime they work. However, under the Fair Labor Standards Act (FLSA) there are special rules for employees who make different rates throughout the course of the week, and when those different jobs count as independent employment, versus when the work at both jobs must be counted towards the employee’s forty hours per-week. A typical situation where this arises is
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Immigration and Customs Enforcement (ICE) Arrests Are Up Over 700% in 2018, If You Employed Illegal Workers You Need a Good Federal Employment Attorney on Call Now More than Ever

Hiring illegal immigrants exposes your business to serious liability issues that could end in Federal Charges, but at a minimum result in hefty fines and a shutdown of your business for a period. ICE has had a record year with more than 6,848 investigations in 2018, compared to 1,691 investigations in 2017, this is an over 400% increase. ICE plans, on increasing the number of investigations in 2019. In 2017 1,360 companies were audited for I-9 compliance, compared to 5,981
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YOU CANNOT AGREE WITH YOUR EMPLOYEES THAT YOU DO NOT HAVE TO PAY THEM OVERTIME, EVEN IF THE AGREEMENT YOU MAKE PAYS THEM MORE

The right to overtime under the Fair Labor Standards Act (FLSA) cannot be given up in an employment contract, or agreed between the employer and employee not to apply. In hundreds of FLSA cases I have been involved in, one of the most common things employers are sued for is coming up with ways to pay their employees more, but that do not pay them overtime at one-and-one half times their regular hourly rate. Often times these employers tell me
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The Importance of Timely Retaining Personal Counsel

Doctor, when is the best time to treat an infection?  As soon as possible, right?  Timely care usually means that the least amount of harm has occurred, options are available, and a better prognosis.  If significant time passes before an infection is treated, sometimes it’s “better late than never,” but sometimes it’s “too little too late.”   The same is true for retaining personal counsel. Personal counsel is most effective if utilized as soon as possible. If significant time passes
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Personal Counsel protects doctors not insurance companies. Every doctor being sued for medical malpractice should have a personal counsel

When a doctor with malpractice insurance gets sued, the first thing he or she should do is forward the lawsuit to their carrier. The first thing a carrier will do is determine if it owes coverage to the doctor.   Sometimes the insurance company determines the claim is not covered by the policy.  Sometimes the insurance company will cover the claim but reserve their right to withdraw from defending the doctor. In either event, personal counsel can advocate for the doctor’s
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YOU CANNOT AGREE WITH YOUR EMPLOYEES THAT YOU DO NOT HAVE TO PAY THEM OVERTIME, EVEN IF THE AGREEMENT YOU MAKE PAYS THEM MORE

The right to overtime under the Fair Labor Standards Act (FLSA) cannot be given up in an employment contract, or agreed between the employer and employee not to apply. In hundreds of FLSA cases I have been involved in, one of the most common things employers are sued for is coming up with ways to pay their employees more, but that do not pay them overtime at one-and-one half times their regular hourly rate. Often times these employers tell me
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THE SECRET TO APPEARING PRO HAC VICE IN THE SOUTHERN DISTRICT OF FLORIDA

The Southern District of Florida is, arguably, the best place in the country to litigate Federal Claims. However, attorneys appearing pro hac vice often underestimate the importance of the choice of local counsel they associate. Worse, many attorneys appearing pro hac vice in the Southern District of Florida rely on the reputation of a firm, or its size, in determining who to associate as local counsel, neither of these factors are relevant, the attorney, not the firm, is the important
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GAINING THE ADVANTAGE HANDLING FRIVOLOUS LAWSUITS

The cost of doing business successfully today, is that lawsuits are bound to happen, and many of them will be frivolous lawsuits. Routinely frivolous lawsuits are pursued by attorneys who know that even a frivolous lawsuit can be successful against companies who know it is cheaper to pay a settlement than spend years paying attorneys to wind through state court systems. There is a way to fight back, using a trick that puts frivolous lawsuit filers into waters they do
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A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for
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GAINING THE ADVANTAGE HADLING FRIVOLOUS LAWSUITS

The cost of doing business successfully today, is that lawsuits are bound to happen, and many of them will be frivolous lawsuits. Routinely frivolous lawsuits are pursued by attorneys who know that even a frivolous lawsuit can be successful against companies who know it is cheaper to pay a settlement than spend years paying attorneys to wind through state court systems. There is a way to fight back, using a trick that puts frivolous lawsuit filers into waters they do
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A WRITTEN AMERICANS WITH DISABILITIES ACT (ADA) POLICY IS ESSENTIAL TO PROTECT YOUR BUSINESS AGAINST LAWSUITS

The word disability has a very broad meaning under the ADA, and conditions you would not think are disabilities can lead to costly lawsuits if an employer does not have a policy to properly handle ADA Accommodation requests by employees. Believe it or not, an appellate court has held an employer liable for not allowing an employee with a sleep disorder to show up to work late every day. However, not all accommodations are required. The most important thing for
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Strict Time Keeping Rules Are the Only Way to Protect Against Fair Labor Standards Act (FLSA) Lawsuits

  Often times employers have time records that show they paid an employee correctly, however, even with those records many employers lose Fair Labor Standards Act (FLSA) lawsuits. This is because while these businesses have a time clock, and pay their employees based on the hours that the time clock produces, they fail to have policies that eliminate the possibility of employees alleging that they worked off of the clock. Implementing proper procedures as to when your employee's clock in
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A Well Drafted Employee Arbitration Agreement Is Essential to Avoiding Costly Lawsuits

FLSA Lawsuits can cost employers significant amounts of money, both in defense costs and paying claims, however, there is a way to avoid these costly lawsuits. A well drafted arbitration agreement that covers actions brought under the Fair Labor Standards Act (FLSA), and other state/federal laws, is essential to avoiding several kinds of lawsuits. An arbitration agreement is an agreement that your employees sign which obligates them to bring their issues to an arbitrator you select, rather than to court.
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Title VII Requires Employers to Accommodate Employees’ Religious Beliefs, Some But Not All of the Time

Title VII prevents an employer from discriminating on the basis of religion against employees, and applicants for employment. In order not to discriminate an employer must be willing to offer religious accommodations in some, but not all cases. A religious accommodation is an exception to a rule, procedure, job requirement, or standard, because an employee’s, or applicant’s, religious beliefs are violated by one of these workplace requirements. An example of a workplace accommodation is allowing a Muslim woman to wear
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There are Complex Rules as to How to Pay Nannies and Housekeepers

Your nanny or housekeeper may feel like family but housekeepers and nannies the families that serve all the time, and these lawsuits can get far more expensive than other lawsuits brought by employees because of the number of hours involved. There are very specific rules as to how nannies and housekeepers are paid, and often they sue when their employers part ways with them, even after ten years, or more, in the home. Defending against lawsuits brought under the Fair
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Accommodating an Employee is Not Always Required Under the ADA and Other Federal Regulations

On Tuesday a Federal Court in New Jersey ruled that the Port Authority would not be subject to a lawsuit for discrimination based on their failure to accommodate a Jewish employee’s request not to work on the Sabbath and Jewish Holidays. This does not mean that employers are free to ignore an employee who asks for accommodations. Religious accommodations have different requirements based on what type of employer you are. Private employers face cases based on an employee’s religion infrequently
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An Illegal Immigrant Can Sue Their Employer in Federal Court

One of the most common misconceptions that employers have is that illegal immigrants cannot sue their employers. Illegal immigrants can sue their employers in Federal Court for the non-payment of minimum wage, and overtime, pay under the Fair Labor Standards Act (FLSA). Under the FLSA it does not matter whether someone is in the country illegally, nor will they be deported for filing a lawsuit. There are places in the country where an illegal immigrant cannot bring a Federal Lawsuit,
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Under Federal Labor Law Very Few Employees are Independent Contractors

The law does not give the option to employers to pay their employees as independent contractors by paying them via 1099 rather than W-2. For purposes of Federal Labor Laws, and the Fair Labor Standards Act (FLSA), an independent contractor is a person who is not economically dependent on any one employer as a primary source of income. When you hire someone to paint your house you are hiring them as an independent contractor, but when you own a business
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What does “And those Similarly Situated” mean next to the Plaintiff’s Name in a Fair Labor Standards Act Lawsuit

Next to the Plaintiff’s name in a Fair Labor Standards Act (FLSA) lawsuit there are often a variation of the words “and all those similarly situated” or “and those similarly situated.” Variations on “and those similarly situated” are very dangerous words if you are a business owner. The words can turn a lawsuit brought against an employer by one employee, into a lawsuit brought against an employer by several past and present employees, who the Court forces the employer to
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A Surge in Lawsuits by Tipped Employees

Large restaurant chains have paid millions of dollars in settlement money for improper tip pooling arrangements. There are trends in lawsuits under the Fair Labor Standards Act (FLSA). Recently, suits by tipped employees suing their employers has become popular. Restaurants and bars of all sizes, across the country, are being sued by tipped employees who claim that they were tipped improperly. This is because there are a set of complex regulations as to how tipped employees are paid, and how
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Just Because an Employee is Salaried Does Not Mean an Employer Does Not Have to Pay Overtime

One of the most common mistakes that employers make is believing that because they pay employees a salary, the employers do not need to pay the employees overtime. There are employees who receive a salary, and do not need to be paid overtime because they are exempt from the law’s requirement to pay overtime. However, the duties that an employee performs, their training, and their position, determine whether they are exempt from the Fair Labor Standards Act’s (“FLSA”) overtime requirements,
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A Game Changers for Employers sued by Employees By: Joshua H. Sheskin, Esq.

For employees, whose employers classify them as exempt from overtime requirements, it just became harder to sue their employers. If an employee is exempt, an employer does not need to pay them overtime. Common exempt employees include, but are not limited to, managers, administrators, supervisors, chefs, commercial drivers, domestic employees, and commissioned salespeople. Until recently, when an employee sued an employer for unpaid overtime under the Fair Labor Standards Act (FLSA), there was a strong legal presumption against the employer,
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Health Law Primer: Prohibition Against Kickbacks

It is a crime for any person to pay or receive anything of value if even one purpose of that payment is to induce the referral of a patient for a health care good or service. This prohibition exists in Federal law and, in various permutations, often exists in states’ laws as well. On the Federal level, this restriction does not apply if and to the extent that the arrangement fits within one of approximately twenty-five fact patterns that appear
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Carlos H. Arce, Esq. Interview

https://www.telemundo51.com/noticias/destacados/Los-gastos-m_dicos-tras-la-mordida-de-un-mapache_TLMD---Miami-493540311.html

Prescription Management” Company For Physicians Accused of Fraud

Allegations against a company in Texas that acted as a “prescription manager” for physicians, finding the highest reimbursed drugs in various health plans and encouraged physicians to prescribe those drugs. There is some indication that select pharmacies filled the prescriptions with certain financial benefits going back to the doctors. Based on the article it appears to be a fairly large operation. The company, for its part, claims it did nothing wrong; having had attorneys review and approve their business model.
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Drug Manufacturer Accused Of Kickbacks By Providing Nurses

A lawsuit filed by the State of California alleges that the drug maker, AbbVie, induced physicians to over-prescribe Humira, a drug used for the treatment of rheumatoid arthritis. The alleged kickbacks included supplying nurses to go to the patients’ homes as an extension of the physicians’ practice to administer the medication and complete physician’s administrative paperwork. The suit alleges that the nurses, paid by and working for the drug company, looked out for the drug company’s interests, not those of
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