Monday, November 17, 2014

San Diego Doctor Who Took Photos of Patients On Cell Phone Agrees to Interim Suspension Order Pending Accusation or Criminal Filing

A San Diego physician agreed to an interim suspension order by the California Medical Board as reported by the San Diego Tribune in its article that was effective October 31, 2014. The physician admitted that he took photos and videos of female patients using the camera on his smart phone. The patients were unclothed in some of the photos. In addition, the patients alleged inappropriate touching or photographing. This interim suspension order will require the Medical Board to file an Accusation within 30 days but it appears there is also a criminal investigation as well.

Any physician who takes photos of patients whether clothed or not should be careful to obtain proper consent forms, use a camera for office use only where the photos will be HIPAA compliant and that there is a medical reason for the photos or videos.

Posted by Tracy Green, Esq.

Saturday, November 15, 2014

Before You Submit Your License Application Or Report Your Conviction -- You May Be Eligible To Have Certain Felony Violations Designated As Misdemeanors Under Penal Code 1170.18 (Prop. 47)


If you have been convicted of certain felonies and are eligible under the recently passed Proposition 47 which enacted Penal Code Section 1170.18, you may be eligible to have the felony designated as a misdemeanor and/or resentenced as a misdemeanor.  

Here are some frequently asked questions our office is receiving:

Who Should Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
My recommendation is that anyone who is eligible should seek relief. Felony convictions can result in negative collateral consequences for future student loans, SBA loans, job opportunities, background checks for jobs, clearance for coaching kids' sports or volunteering, admission to colleges, and licensing by governmental agencies, among other things. Reducing to a misdemeanor will at least make some of these exclusions "discretionary" instead of mandatory.  

When Should I Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
I recommend doing it now. The statute provides that relief should be sought within 3 years of the enactment of the statute or later for good cause. You do not know what you could be doing in 3 years or how this can effect your future. Do not put it off and do it now.  

How Can Penal Code Section 1170.18 (Prop. 47) Affect A Licensing Board's Determination on Discipline?
If a felony is reduced to a misdemeanor, then the disciplinary guidelines will be more favorable to a misdemeanor conviction. With Section 1170.18, this gives individuals convicted of certain felonies the opportunity to reduce it to a misdemeanor.  In addition, this can be used to help show rehabilitation and mitigating evidence.  

Some felonies known as "wobblers" can be reduced to a misdemeanor under Penal Code Section 17(b) but that reduction is discretionary with the court. This new statute gives individuals convicted of felonies another avenue.

Who Is Eligible?
Anyone who has been convicted of the following  California state crimes (not federal) and meets the eligibility criteria:

Health and Safety Code Section 11350 [Possession of a controlled substance] 
Health and Safety Code Section 11357(a) [Possession of a concen. cannibis] 
Health and Safety Code Section 11377(a) [Possession of methamphetamine] 
Penal Code Section 459 [Second Degree Burglary] or Section 459.5
Penal Code Section 473 [Forgery]
Penal Code Section 476a [Bad Checks/Fraud]
Penal Code Section 496 [Receiving Stolen Property] 
Penal Code Sections 484/666 [Felony of Petty Theft With a Prior/Shoplifting]

For theft charges to be reduced, the amount at issue must have been less than $950.

Also the court will not change your charges from felonies to misdemeanors if you have certain strike priors, or if you are required to register pursuant to Penal Code Section 290(c). 
  
What Will Be The Effect of Having The Petition Granted? 
A re-designation means that the conviction is now deemed a misdemeanor for all purposes, except that re-designation does not permit the defendant to own, possess, or have in their custody or control, any firearm or prevent their conviction under Chapter 2 (commencing with Penal Code Section 29800 felon with a gun) of Division 9 of Title 4 of Part 6.  

What Does The Court Consider And Will Be The Effect of Having The Petition Granted? 
If the person is eligible under Section 1170.18(f), the court shall grant the petition.  Section (f) eligibility is where the felony conviction, whether by trial or plea, would have been a misdemeanor under this act had Section 1170.18 been in effect at the time of the offense. No hearing is necessary to grant or deny an application filed under subsection (f) but a hearing can be requested.

For other offenses, where there are no disqualifies present under Penal Code Section 1170.18(b)(1)-(3) and (i), a re-designation will be granted unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following:

(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.

(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated.

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

"Unreasonable risk of danger to public safety" means an unreasonable risk that the defendant will commit a new violent felony within the meaning of Penal Code Section 667(e)(2)(C)(iv).

How Long Does This Process Take?  
The petition process may take between 15 to 60 days, depending on the details of the case and the amount of time it takes to prepare the petition.

Our office is handling these matters and contacting clients to make sure they take advantage of this new law.  If you want your case evaluated, feel free to call or email our office.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Email: tgreen@greenassoc.com
Call:    213-233-2260

Wednesday, November 5, 2014

FAQ About Rescheduling All Hydrocodone Combination Products from Federal Schedule III to Federal Schedule II

We have received questions from physicians and pharmacies about the new DEA rules for hydrocodone combination products (HCPs).  Effective October 6, 2014, the DEA rescheduled HCPs from federal Schedule III to federal Schedule II.  This change impacts how hydrocodone combination products are prescribed and dispensed in California. Federal requirements for prescribing and dispensing Schedule II controlled substances will apply to all hydrocodone combination products. This means, among other thing, a very limited ability to orally prescribe HCPs (see below) and ability to authorize refills.
This “up scheduling” is a major change for California. According to CURES, over 1 billion dosage units of HCPs were dispensed last fiscal year in California. HCPs are the most frequently prescribed opioid in the United States: nearly 137 million prescriptions for HCPs were dispensed in 2013.
Here are frequently asked questions and answers: 
Question 1: Does this mean California law has also reclassified ALL hydrocodone combination products as Schedule II controlled substances?
Answer 1: This is a technical question where federal law governs. Technically, there has been no equivalent change to California law, or to the controlled substance schedules in California. But for many intents and purposes, the practical effect will be the same: that all prescribers and practitioners in California will be required to treat HCPs as Schedule II controlled substances.
Question 2: Are prescriptions written for HCPs before October 6, 2014 that are presented to the pharmacy for dispensing on or after October 6, 2014 to be dispensed as a Schedule II or Schedule III controlled substance? 
Answer 2: If the prescription is first presented on or after October 6, it must follow federal Schedule II requirements. For example, this means no HCP prescription issued on or after this date may authorize any refills. It also means that as of October 6 oral, telephone or fax-transmitted prescriptions for HCPs are no longer possible. 
Question 3:  Can the remaining refills for HCP prescriptions written and filled before October 6 as a Schedule III, be dispensed after October 6?   
Answer 4:  Yes. The DEA has stated that it will allow refills on HCPs written and initially filled before October 6 (under Schedule III requirements and limitations), to be dispensed up to six months from October 6, 2014 (until April 8, 2015). This extends the Schedule III treatment of prescriptions for HCPs written and initially dispensed prior to October 6, 2014 to the maximum allowable period for Schedule III refills. Of course, the original date on the prescription cannot exceed 180 days, or the maximum allowable period for Schedule III refills. 
If there are any questions for prescribing physicians or dispensing pharmacists, err on the safe side and seek consultation so that you comply with the federal laws and regulations. Patients may be frustrated by the change in the law but do not let them pressure you into prescribing or dispensing unless you are fully compliant. 
Posted by Tracy Green, Esq.

Saturday, November 1, 2014

DEA and Medical Boards Target Weight Loss Clinics and Phentermine

We have seen more investigations of physicians or advanced practitioners (physician assistants and nurse practitioners) prescribing phentermine to patients.  Phentermine is a Schedule IV drug and we have seen increased scrutiny of weight loss clinics and investigations into the physicians, nurse practitioners, physician assistants and nurses who work at them.

The investigations include the following topics:

1.   The business structure of the weight loss clinics and whether management companies or non-physicians are involved in the business.

2.   Whether the physician established a bona-fide doctor-patient relationship before prescribing phentermine to patients.

3.   Whether the physician obtained a thorough history or complete a thorough physical examination prior to initiating treatment utilizing a Schedule IV controlled substance.

4.   Whether the physician continued prescribing phentermine to a patient who had failed to lose weight after taking the controlled substances over a period of thirty days.

5.   Whether the physician had initiated treatment utilizing a Schedule IV controlled substance without having performed a review of the patient's prior medical and weight-loss program records to determine that the patient had made a substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification and exercise, without the utilization of controlled substances, and that said treatment had been ineffective.

6.   Whether physician had dispensed drugs having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.

7.   Whether the physician had violated 21 C.F.R. Section 1306.04(a) which requires that a controlled-substance prescription "be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice."

8.   Whether the phentermine is being properly stored and dispensed under state and federal rules. Are the DEA logs maintained properly? Is the receptionist or a medical assistant improperly handing the phentermine to the patients? Is the phentermine properly labeled with instructions?

9.   Are referral fees given to patients for referring friends in violation of state anti-kickback and referral fee rules?

10.    Is the phentermine being given at a discount if private or government insurance is billed for other services?

We handled one case outside of California where law enforcement sent in a  confidential informant to gather information on the physician’s weight loss practice. The government informant was female, short and weighed over 210 pounds at the time of her initial visit to the practice and it was obvious that law enforcement chose her to participate in the investigation because she was not only obese, but had a number of other medical conditions as well.

In that case, the physician was investigated for prescribing phentermine (controlled substances) to the undercover without performing an adequate physical examination, properly documenting her medical history, recording adiposity measurements such as BMI or waist circumference, conducting any laboratory testing, or verifying that the undercover had made good faith efforts to lose weight without the aid of controlled substances. We helped obtain the dismissal of criminal charges but the DEA and Medical Board still pursued the physician.  


If you have medical weight loss as part of your practice, now is the time to get compliant with state and federal rules and regulations -- before there is an an investigation.  Have us or another experienced firm conduct an audit and make sure you comply before the Medical Board or DEA pays your office a visit or requests records from your office.  If there is an investigation, get counsel right away so you do not respond to records requests or interview requests without representation. 

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
213-233-2260
Email: tgreen@greenassoc.com


Saturday, September 27, 2014

Fraud Cases Can Take Years To Resolve – Psychiatrist’s Investigation For Overbilling State Prison Started in 2007, Charges Filed in 2008, Trial Held, and New Trial Now Ordered


Fraud cases can take years to investigate and to prosecute. Due to the lengthy statute of limitations in federal and state cases and the document intensive nature of fraud cases, many of the cases we handle are based on actions that occurred years before. It can then take years forth cases to be resolved. 

A current case pending in Monterey County Superior Court demonstrates how this can take years even though most clients want cases to be resolved as soon as possible in order to keep their reputation, business and to get on with their lives.

In mid-2006, Pedro Eva, M.D., a licensed psychiatrist, was hired as a subcontractor by RPS to perform psychiatric services at Salinas Valley State Prison (SVSP) pursuant to a contract between RPS and California’s Department of Corrections and Rehabilitation (CDCR).  Under the contract, RPS psychiatrists may only charge for time actually spent in the prison.  However, Dr. Eva alleged that he was not informed of that requirement; instead, he understood his job consisted of four 10-hour days, and alleged that the acting chief psychiatrist at SVSP, David Hoban, told him he should bill for 10 hours even if he was not inside the prison the whole time.

At some point in 2007, California’s Office of the Inspector General (OIG) began investigating the billing practices of contract psychiatrists working at SVSP.  In the investigation, a number of doctors' hours were tracked using GPS, cellphone records and rental car receipts. The state alleged that some of the doctors overbilled the state by $200,000 during a three-month period by claiming they were on prison grounds when they were not.

The case turned criminal and in November 2008, an indictment was filed against Dr. Eva in Monterey County Superior Court, charging him with grand theft, presentation of fraudulent claims, and conspiracy to commit grand theft.  Dr. Lee, Dr. Hoban, and others were also indicted on charges related to the submission of allegedly false time sheets.

Two of the doctors, Randy Sid and David Hoban, plead guilty to felony charges that were reduced to misdemeanor counts upon payment of restitution and completion of community service. Charges against Dr. Charles Lee were dismissed.

In early 2014, Dr. Eva’s case went to trial on charges of grand theft and filing false claims for allegedly overbilling the state for his services. Dr. Eva was convicted in February 2014, but he won a new trial on the ground that the jury received improper instructions. Six members of that same jury sent Judge Hayes a letter after the trial, saying they felt Eva was the “fall guy” in the overbilling conspiracy that started with Eva’s superior, prison chief of medical services Dr. Charles Lee, and included other prison doctors, too. “It seemed evident that Dr. Eva was a very good psychiatrist whose life has now been ruined,” the letter states. “This does not feel like justice.”

Dr. Eva goes back to court on September 30, 2014 for a trial setting date. It has been almost 6 years since charges were originally filed and has been 10 years since the billings at issue were provided. These cases can take on a life of their own and obtaining easy resolution especially when some of the codefendants have plead guilty is not a simple task. To fight these cases takes resolution an determination from the attorneys and the clients.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Office: 213-233-2260

Wednesday, August 27, 2014

Louisiana Psychiatrist Sentenced to Serve More Than 7 Years in Prison for Role in Medicare Fraud Case Involving Partial Hospitalization Psychiatric Services

A Louisiana psychiatrist, Dr. Zahid Imran, was sentenced in federal court in Baton Rouge, Louisiana, on August 25, 2014 to serve 86 months in prison for his role in a Medicare fraud case involving partial hospitalization psychiatric services. 

The sentencing followed his guilty plea. He was further ordered to pay $43.5 million in restitution and to forfeit all proceeds from the fraudulent scheme. Chief U.S. District Court Judge Brian A. Jackson of the Middle District of Louisiana imposed the sentence and ordered Dr. Imran to self-surrender by September 29.

According to documents filed in the case, Zahid Imran, M.D., 56, of Baton Rouge, served as the medical director of Shifa Community Mental Health Center of Baton Rouge, and co-owned Serenity Center of Baton Rouge and Shifa Community Mental Health Center of Texas.   As part of the alleged fraud, Dr. Imran admitted mentally ill patients to the facilities, some of whom were inappropriate for partial hospitalization, and then re-certified the patients’ appropriateness for the program in an effort to continue to bill Medicare for services. 


To support the fraudulent Medicare billing, it was alleged that Dr. Imran and others allegedly falsified patient treatment records to reflect services on dates when no such services were provided. Dr. Imran pleaded guilty on May 13, 2014, to conspiracy to commit health care fraud. There were allegations that the patients were brought in by buses from Memphis and other areas which is indicative of illegal marketing.

This was a wide-ranging prosecution that began with an investigation in 2011 into the three community mental health centers. This investigation has resulted in 17 convictions of individuals employed by the facilities, including therapists, marketers, administrators, owners and the medical director.  The companies billed Medicare for partial hospitalization program services for the mentally ill that were allegedly unnecessary or never provided over a period of approximately seven years. The companies, collectively, submitted more than $258 million in claims to Medicare during this period. Medicare paid approximately $43.5 million on those claims.


Attorney Commentary: The days where facilities could avoid fraud charges by seeing patients are over. Prosecutors are no longer afraid to tackle medical necessity. This is especially true in psychiatric cases where the people served are mentally ill, poor and not receptive to treatment. Add marketing and patients who travel for services and there are significant red flags for audits and investigations.

Posted by Tracy Green, Esq.
Email: tgreen@greenassoc.com
Phone: 213-233-2260
Green and Associates, Attorneys at Law


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