CLEAR

Guest commentary on Florida case - interrelationship of criminal case and licensure

Jon Pellett, CLEAR member and attorney with Pennington Law in Florida, offers this summary and commentary on a recent case in Florida:

Client was arrested and charged with domestic violence. In less than 30 days from the arrest, the State Attorney’s Office, looking at the circumstances that led to his arrest, declined to pursue it and the charge was dropped.

More than 60 days from his arrest, AHCA – Medicaid removed him from the program due to a law that allows them to do so on the basis of the arrest for domestic violence. It is an automatic disqualification under the law without a right to challenge it. The law at issue applies to AHCA licensed facilities and Medicaid. Once Background Screening flags the arrest, AHCA removes the individual from Medicaid and notifies facilities that the individual is not eligible to be employed or practice at the licensed facilities.

Upon notice of the flag by Background Screening, AHCA made the Medicaid removal retroactive to the date of his arrest. AHCA was unaware at the time of termination that the criminal case had been dropped. Fortunately, once AHCA was shown the decision was based on incomplete information, within days of the decision to terminate him, they reversed course and placed him back in the system as eligible and the reinstatement was done in a way to render the earlier termination null.  

At the time they decided to remove him, over 80% of his practice was Medicaid. Had the termination been allowed to stand, he could have lost 80% of his practice. He would have been required to return money paid by Medicaid for services from the date of his arrest to the termination date, and he would have not been allowed to renew his medical license in Florida when it comes-up for renewal in January 2023. The interrelationship of the various statutory provisions between Department of Health and AHCA – Medicaid can cause substantial unintended harm. Being allowed to take action on the basis of the arrest without allowing some opportunity to challenge the decision, places individuals in a very precarious spot. If the criminal case had gone the regular route, the criminal case might not have been resolved before 2023. Within that time period, the parade of horribles that I outlined would have come to pass.

Continuing Education Provider Sues Certifying Board on Antitrust Grounds

from guest contributor Don Balasa:

On September 13, 2022, the Association of Surgical Assistants (ASA), a national provider of continuing education for surgical assistants, sued the National Board of Surgical Technology and Surgical Assisting (NBSTSA), a national board that certifies surgical technologists and surgical assistants, in federal district court alleging that the NBSTSA violated the federal and Colorado antitrust laws that prohibit unreasonable restraint of trade and monopolizing.

Read the full article
Read the complaint

Joint statement on laws for medication access

The American Medical Association, American Pharmacists Association, American Society of Health-System Pharmacists, and the National Community Pharmacist Association have issued a joint statement raising concern about "state laws that limit patients’ access to medically necessary medications and impede physicians and pharmacists from using their professional judgment." The statement notes confusion among physicians, pharmacists, and other health care professionals about how broadly state laws will be interpreted after Dobbs v. Jackson Women's Health Organization, specifically about prescribing off-label usage of medications that have the potential to induce abortion. The statement calls on policymakers and state medical and pharmacy boards to issue guidance or regulations to clarify the legal and licensing obligations around these prescription medications to ensure that continuity of care is not disrupted.

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Response article to remote proctoring room scan decision

In a US district court case last month, a judge ruled that room scans taken before online exams are unconstitutional (read more).  Donald Balasa, CLEAR member and legal counsel for the American Association of Medical Assistants, has contributed a response article, providing constitutional background and analysis of the general facts that diminished the University's interests in requiring room scans before online examinations.  He concludes, "Even aside from the facts that this decision may be appealed and the Fourth Amendment applies only to government actors, the odd and atypical facts of this case limit its precedential usefulness.  Internally consistent and consistently applied test security principles, and generally accepted remote proctoring procedures, would avoid most if not all of the legal issues in Ogletree v. Cleveland State University."

Read the response article

Judge rules against remote proctoring room scans

A US district court judge has ruled that room scans taken before online exams are unconstitutional. The lawsuit was brought forward by a student at Cleveland State University, claiming that the room scan was a violation of Fourth Amendment rights against "unreasonable searches and seizures." The ruling states that "the student's privacy interest in his home outweighs the university's interest in scanning his room" to prevent cheating on the exam.

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New York: court case on professional speech versus conduct

A new York court opinion has ruled that volunteers for a legal aid nonprofit are not subject to New York's law against the unauthorized practice of law (UPL). Upsolve, a financial-education and civil rights nonprofit, sued, claiming the the UPL law was a violation of First Amendment rights to free speech in that their services consisted of "pure verbal speech" and did not constitute conduct. The court applied the highest level of First Amendment scrutiny to the UPL law and found that "a total ban on Upsolve's program cannot be justified." The CATO Institute concludes: "There is of course a role to play for states in protecting consumers, but all too often those rules do not account for new and innovative nonprofits or business models."

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Tennessee: new law on judicial/agency deference

A new law in Tennessee instructs courts to review cases involving government agencies de novo ("from the beginning") instead of deferring to the agency's interpretation of its rules and statutes. Courts will resolve any remaining ambiguities against the government agency. The new law aligns with other areas of law and mirrors how ambiguities in criminal cases are resolved in favor of the accused.

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Tennessee: licensure law for online auctioneers declared unconstitutional

A US District Court judge has ruled that Tennessee's law requiring all auctioneers, including online auctioneers, to be licensed is unconstitutional, imposing an excessive burden on interstate commerce and violating the commerce clause of the US Constitution. The commerce clause gives Congress the power to regulate commerce among the states and has been interpreted as prohibiting states from passing legislation that burdens interstate commerce.

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Update: Georgia court strikes down licensure requirement for lactation consultants

In an update on the case of Jackson vs. Raffensperger, a Georgia court has struck down a provision in the licensure requirement for lactation consultants. Lactation consultants in Georgia will no longer be required to obtain the International Board Certified Lactation Consultant certification.

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Court case: professional counselor license versus First Amendment

A case filed by a Virginia professional counselor wishing to offer video counseling to clients in the District of Columbia claims that the DC license requirement is a violation of the First Amendment. The case may go forward, as the judge's ruling on the board's dismissal request finds that the license requirement is content-based regulation of speech (as opposed to regulation of conduct), and the requirement does not survive strict scrutiny, so the claim cannot be dismissed but must be proven that the requirement serves a compelling state interest.

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