In March 2020, New Jersey became the epicenter of the global COVID-19 pandemic. As the pandemic spread, our client, a board-certified vascular and general neurologist, worked 24-hour, seven-day, on-call shifts for a local hospital as well as several other area hospitals to assist in combating the spread of the disease. At the same time, as county governments established COVID-19 testing programs, their capacity to process and communicate testing results to patients was quickly overwhelmed. As a result, they often turned to private partners to help provide this critical information to patients in a reliable and prompt manner and asked our client for help. Specifically, the county in which our client lives and works did not have the infrastructure in place to implement a COVID-19 testing regime on its own. Instead, the county partnered with a local hospital, which had independently started its own testing program. But neither the hospital nor the county had the resources to report test results to thousands of patients each day. As this reporting problem grew more acute in late March 2020, our client, who was already working at the local hospital, was introduced to county officials and was asked if his telemedicine company could help establish a reporting process for the county. Our client agreed.
Action by the NJ Board of Medical Examiners
In 2022, the Office of the Attorney General filed a Complaint seeking an Order from the Board of Medical Examiners (“Board”) suspending or revoking our client’s license due to allegations that he violated the professional standards governing the practice of medicine by allegedly:
- “Selling” COVID-19 clearance certificates for $50 to financially benefit from the pandemic in violation of N.J.S.A. 45:1-21(d) (professional misconduct), N.J.S.A. 45:1-21(e); failing to be of good moral character, N.J.S.A. 45:9-6; failing to comply with provisions of the Board, N.J.S.A. 45:1-21(h); and
- Permitting an unlicensed person (a naturopath duly licensed in another state) to perform an act for which a license is required, in violation of N.J.S.A. 45:1-21(n);
- Failing to maintain proper records of the patient encounters;
The Attorney General also sought the imposition of civil penalties, costs and fees.
Soon thereafter, Mandelbaum Barrett attorneys Mohamed H. Nabulsi, Esq. and Alex J. Keoskey, Esq., on behalf of our client, filed an Answer and Affirmative Defenses to the Complaint. In our Answer, we argued that our client charged the bare minimum for these clearance certificates, receiving no profit whatsoever therefrom. We further argued that the use of the naturopath was perfectly lawful under the terms of COVID-19 waivers that were enacted by the Governor during the COVID-19 state of emergency, allowing out-of-state practitioners to perform services in response to the pandemic. Finally, we asserted that other ancillary state waivers allowed for telehealth-related record-keeping to be truncated for the purpose of efficiency during the state of emergency associated with the pandemic.
The matter was the subject of a plenary hearing in the Office of Administrative Law before an ALJ later in 2022.
In her Initial Decision, the ALJ found that the Attorney General had not proven its allegations that our client failed to uphold the standards applicable to the practice of medicine by issuing or charging for COVID-19 clearance certificates or that he aided and abetted the unlicensed practice of medicine through the use of the naturopath. The ALJ did uphold the allegations of poor recordkeeping, which she found to be “a minor technical violation in the totality of the circumstances.” Accordingly, the ALJ invoked “only a reprimand, with no mandated courses, and no fines, fees or costs.” A reprimand is a written rebuke.
In respect to the ALJ’s Initial Decision, the Attorney General sought a full reversal of the ALJ’s decision, plus their costs of $72,673.50 in legal fees and investigative costs of $9,873.47.
In our Exceptions brief on behalf of our client, we argued that any penalty against our client’s license would be disproportionate, since his multi-state telemedicine practice would be adversely affected by a report to the National Practitioner’s Data Bank and, therefore, no penalty should be assessed.
The Board ‘s Final Decision and Order
In the Board’s Final Decision and Order, the Board found that “the imposition of a reprimand is simply not supported by the established record in this case.” Significantly, the Board held that our client’s actions “were found to be altruistic and occurred at a crisis time, when significant uncertainty about the obligations upon licensees existed.” Finding the case to be “singularly unique,” the Board imposed NO PENALTY. This is an exceedingly rare case of a professional licensing board modifying their own, initial settlement position within a final order, and invoking no penalty at all.
Mandelbaum’s healthcare team consists of healthcare regulatory attorneys and former state and federal prosecutors, including former Deputy Attorneys General for the Board and other professional boards and other agencies, as well as a former counselling Deputy Attorney General to the Board and other professional boards. Mandelbaum’s healthcare team applies its deep knowledge of healthcare regulations and professional board litigation experience to assist its clients in protecting their licenses and livelihood in this increasingly aggressive enforcement climate.
These stories are successful case results from our attorneys. Please note that results may vary depending on your particular facts and legal circumstances.