Wednesday, November 26, 2014

Happy Thanksgiving - We Are Grateful For Our Clients

Happy Thanksgiving to one and all. I am thankful for my law practice, my clients (many of whom have become friends) and my family. I am also thankful for the many clients who have entrusted me with their cases and their lives. I am honored to be able to represent each and every one of you. I hope all of you can spend time with or at least speak with those you love over this Thanksgiving weekend. It's my favorite holiday because it's all about gratitude, friends and family. 

California Pain Clinic & Physician Settle Federal Qui Tam Case For Allegedly Upcoding Medicare, Medi-Cal and Tricare – Case Filed by Former Biller Took 6 Years to Resolve

On November 19, 2014, a federal qui tam lawsuit was settled in Los Angeles by the U.S. Attorney’s Office civil division and physician Dr. Narinder S. Grewal and his pain clinic, the Santa Clarita Surgery Center for Advanced Pain Management.  Dr. Grewal agreed that he and the clinic would pay $1,087,176.09 to the United States for Medicare and Tricare billing and $112,823.91 to the State of California for Medi-Cal billing.

This is not a criminal case only civil. As a qui tam attorney, one common driving force that parties often settle these cases, however, is to make sure that the U.S. Attorney’s Office does not use the discovery process to build a criminal health care fraud case.

The background is as follows. On April 16, 2008, a person (Chandana Basu) who did  billing and collection for Dr. Grewal and his clinic (who in qui tam cases gets called a “whistleblower”) had lawyers file a qui tam lawsuit against the doctor and his clinic.  On November 10, 2009, an amended complaint was filed. Ultimately, the key issue was whether or not the United States and/or the State of California would intervene in the case.

Basu’s lawsuit alleged that Grewal and his clinic obtained improper reimbursements from government-run health insurance programs, including Medicare, Medi-Cal and Tricare, a federal health insurance program for military and related military personnel. The lawsuit alleged that Grewal and his clinic submitted fraudulent claims by “upcoding” medical services, which means that he allegedly submitted bills that were not justified by the services that were actually provided.

Negotiations ensued between the U.S. Attorney’s Office, the plaintiff biller’s attorneys and the doctor’s attorneys. A settlement was reached. On November 19, 2014, the U.S. Attorney’s Office filed a notice that it and the State of California would intervene in some allegations in the first amended qui tam complaint and would decline to intervene in other. As part of the settlement, the case was dismissed with prejudice against the doctor and the clinic. The settlement agreement is confidential but the payment amounts have been released. 

The False Claims Acts permit a private person to sue on behalf of the United States and California, and to share in the proceeds of the suit. As a result of the settlement announced today, Basu will receive a total of $204,000. The settlement was announced after United States District Judge Andrew J. Guilford unsealed the lawsuit. The parties asked the court to dismiss the suit.

Attorney Commentary: Billing errors and upcoding can be serious issues. It is critical for practices with a significant amount of governmental billing have a compliance plan in place in order to avoid qui tam cases, audits for recovery and health care fraud allegations. This is risk management and former employees will be the first to file qui tam cases or call in an anonymous complaint to Medi-Cal, Medicare or Tricare.

Phone: 213-233-2260

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
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


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