I suppose it is tempting, if the only tool you have is a hammer,
to treat everything as if it were a nail
–Abraham Maslow, “Toward a Psychology of Being”
By: Jeff Cohen & Randy Goldberg
The dominant forces of change in the addiction treatment industry are law enforcement and insurance companies. The focus and impact of insurers is currently focused on the argument that what treatment providers do isn’t medically necessary. This rationale is undeniably misguided and is the biggest threat to the survival of many health care providers, including those at the forefront of adapting to the demands by implementing meaningful legal regulatory compliance. This focus of this article is a parallel intervening factor in the addiction treatment industry: that of law enforcement, most notably in Palm Beach County, Florida. Consequently, providers in the addiction treatment space and their employees are becoming increasingly familiar with the concept of immunity as they are deal with law enforcement on a routine basis.
We assume there are bad-actors in the addiction treatment space. There are bad-actors in every industry and profession. No one can appreciate that more than this article’s co-author, Randy Goldberg. He is a retired Florida law enforcement professional, who spent a significant portion of his career investigating law enforcement officers for alleged criminal misconduct, having been deeply involved in the arrest and successful prosecution of law enforcement officers who abused their authority and strayed to the dark-side of the law.
Despite a few bad apples in the addiction treatment space, we assume the vast majority of addiction treatment providers and their employees are professional healthcare providers who are committed to having a positive influence on those suffering from addiction problems. The passion of most such providers is reflected in that they regularly offer free care (which they call scholarships) to many of those addiction patients who neither have insurance coverage nor the funds to pay for the treatment they long for.
Some addiction facility owners and employees are looking to cooperate with law enforcement to help clean up the industry. No career professional wants their profession or industry tainted by the misdeeds of a few. The only quid pro quo that these providers are looking for is an offer of immunity. They need to understand it, however, before signing whatever piece of paper is put in front of them.
General Michael Flynn stated about immunity almost a year ago; that anyone who asks for immunity must be guilty.[1] Now he refuses to testify before Congress without it. Not that he is guilty of anything. He is simply doing the smart thing: protecting his interest. As Joel Cohen noted in his article in the “The Hill,” “far too many actually innocent people are wrongly, or even falsely, accused and even convicted of crimes and obtaining immunity is the best road to avoid a wrongful prosecution and conviction.” Immunity is front and center for anyone looking to cooperate with law enforcement.
There are two kinds of immunity worth mentioning: “transactional” and “use/derivative use.” The difference between the two, as described on the Department of Justice’s web site “is that “transaction immunity” protects the witness from prosecution for the offense or offenses involved, whereas “use immunity” only protects the witness against the government’s use of his or her immunized testimony in a prosecution of the witness–except in a subsequent prosecution for perjury or giving a false statement.” By definition, “transactional immunity” is far broader than “use immunity.”
Those offered “use immunity” or “limited use immunity” must carefully review the specific language in the written offer of immunity. The prosecutor’s office will most always tender an offer of immunity in writing. In essence, a written offer of immunity is a contract between the person who will be giving testimony (the “witness”) and the state or district attorney. In most cases, the specific legal regulatory compliance terms of the written immunity offer and the witness acceptance will control the actual scope, terms, limitations and sanctions that could befall the witness after the witness gives testimony.
Several points to focus on when reviewing the offered (written) immunity include, but are not limited to: (i) the scope of immunity actually being conferred; (ii) what happens if the testimony implies or infers criminal wrongdoing on the part of the witness; (iii) will it make a difference whether the wrong doing was intentional or inadvertent; (iv) what consequences will the witness be subject to; and (v) what additional requirements will the witness have in regards to their testimony?
Immunity is a powerful weapon in a prosecutor’s arsenal to combat criminal wrongdoing. Providers have to take care to avoid inadvertent friendly-fire in the state attorney’s war on illegal addiction treatment facilities. It is a harsh reality that every war has friendly-fire casualties. Those who are best informed, however, are in the best position to avoid becoming a casualty!
With over 30 years of healthcare law experience, Mr. Cohen is board certified by The Florida Bar as a specialist in healthcare law. Aside from being a veteran healthcare lawyer, Mr. Goldberg is a retired Broward County Sheriff’s deputy. With strong backgrounds and expertise in healthcare law as they relate to many healthcare professionals and businesses, the practices of Mr. Cohen and Mr. Goldberg immerse them both in regulatory, contract, corporate and compliance, including defending addiction treatment facilities. As Founder of The Florida Healthcare Law Firm, Mr. Cohen’s firm routinely and proudly represents addiction treatment providers that want to know the laws and how to deliver services in a compliant way. Mr. Cohen and Mr. Goldberg can be reached online at www.floridahealthcarelawfirm.com and at (888) 455-7702.
[1] The Hill, April 6, 2017, Joel Cohen, “Michael Flynn & the Immunity Game.” (Joel Cohen, is no relation to this articles co-author Jeffrey Cohen.)
