California Attorneys Representing Licensed, Regulated And Other Professionals

Why Does Medicare Fraud Occur More Frequently In Clinics Run By Managers? Los Angeles Clinic Manager Sentenced To 60 Months For Using Physician Identities To Write Unnecessary Prescriptions And To Bill Medicare

2012-01-22T12:16:00.000-08:00

One of the frequent fact patterns we see in California is the presence of "managers" or "management companies" in health care fraud cases. Why is that? It has to do with California's prohibition that prohibits non-physicians from owning medical practices. It also has to do with some of the people that open health care businesses without realizing the level of regulation and the potential consequence of not following the rules and regulations. When business people want to open a medical practice in California, they need to open the clinic in a doctor's name and sometimes the doctor is a nominal owner and he has little or no control over the practice and relies on the managers to run it properly.

A recent case illustrates the ugly side of health care fraud involving unscrupulous managers. On January 9, 2011, Carolyn Ann Vasquez, 47, from Los Angeles medical clinic manager, was sentenced to 60 months in federal prison after having pleaded guilty to using fraudulent medical clinics and the stolen identities of physicians to defraud Medicare of more than $6.2 million. U.S. District Judge Consuelo B. Marshall of the Central District of California sentenced Ms. Vasquez and also ordered her to pay $6.2 million in restitution.

Originally, Ms. Vasquez was charged with two other persons: (1) physician assistant David Garrison and (2) co-manager Eduard Aslanyan. Mr. Aslanyan pleaded guilty in April 2011 to conspiracy charges related to this case and is scheduled for sentencing on February 6, 2012. David Garrison, a physician assistant who worked at the fraudulent medical clinics with Vasquez and Aslanyan, is scheduled for trial on January 24, 2012. Mr. Garrison has a prior state health care fraud case that may be complicating his sentence that also arises from working at a clinic run by a manager.

In March 2011, Mr. Vasquez pleaded guilty to conspiracy to commit health care fraud. In her plea agreement, Ms. Vasquez admitted that from 2007 to 2008, she conspired with others to use a series of fraudulent Los Angeles-area medical clinics to defraud Medicare. Ms. Vasquez admitted that her co-conspirators used the identities and Medicare provider numbers of physicians who both worked and did not work at the clinics to submit false claims to Medicare for reimbursement for services the physicians did not perform and for power wheelchairs, medical equipment and diagnostic tests that the physicians did not order or prescribe. So the physician is not at the clinic but his name is on the prescription pads that are signed by the PAs or the manager using a stamp signature or even forging the name, and he may have no idea that power wheelchairs are being prescribed to patients and only look at the medical chart that shows a routine medical visit with no improper billing at the medical clinic.

According to court documents, Ms. Vasquez physician assistants recruited to work at the clinics by Vasquez, and working at her direction and the direction of others, performed services that were medically unnecessary and prescribed and ordered the wheelchairs, medical equipment and diagnostic tests that were medically unnecessary.

According to court documents, Ms. Vasquez obtained access to physicians’ personal and Medicare information, which she stole to further the fraud scheme at the medical clinics. For example, Ms. Vasquez admitted that in approximately 2007, a physician contacted her about a job at one of the medical clinics, but the physician decided not to accept the job. Nevertheless, Ms. Vasquez’s clinic printed prescription pads with the physician’s name and Medicare provider number on them. Ms. Vasquez admitted that she instructed a physician assistant working at one of the medical clinics to use the prescription pads to write fraudulent prescriptions and medical documentation for diagnostic tests, power wheelchairs and other medical equipment in the physician’s name even though Ms. Vasquez knew that the physician did not work at the clinic.

Attorney Commentary: For those managers that are unethical or are seeking a doctor's license to use for their own purpose, they will target doctors who are desperate for money, older or have some other issues (alcoholism, depression, etc.) and use that doctor's license and NPI number to run their business without regard for how it will ruin the doctor's provider numbers, expose them to great financial liability and jeopardize their license. In some cases, there is actual identity theft of the physician's license and NPI number.

In many cases, the clinics offer to employ the physician, pay them several thousand dollars per month and tell the physician that they do not have to come to the clinic except once or twice a month since a Physician Assistant (PA) is seeing the patients and all that the physician needs to do is to supervise the PA. The manager will reassure the physician that the clinic is well run and has been in business for years without any issues. For physicians who are looking for extra easy money, they often fall prey to these offers without seeking legal counsel about the legality and fail to do any due diligence about the managers running the clinic.

What the physician or physician assistant often do not know is that the manager also has ownership interest in other businesses related to the clinic: pharmacy, durable medical equipment, diagnostic company, etc. Even if the manager does not make much money on the medical clinic, the prescriptions for these ancillary services can be very profitable. So everything can look pretty good at the clinic but if someone is not paying attention to the prescriptions for potentially unnecessary ultrasounds, DME (expensive wheelchairs or beds) or drugs, the fraud may not be apparent to the physician.

In the Vasquez case and other cases, all that the manager needs to do is to post an advertisement in the Los Angeles Times or other publication and unsuspecting physicians will fax in resumes that list all their identifying information. Physicians should be very careful in sending identifying information in response to job ads and should not list license or DEA or NPI numbers unless and until they have done due diligence on the medical clinic.

In addition, in any situation where there is a mangement agreement, physicians should have their own legal representation to ensure that the arrangement is legal and that there is little or minimal chance for any fraudulent conduct to occur. Physicians and those in the health care field often tend to be trusting but trying to clean up fraudulent billing and identity theft -- including the loss of a provider number or addressing a large overpayment incurred -- can take years and can be very expensive. Practice preventative measures BEFORE you enter into any such arrangements.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Recent OIG Investigation Into Hospices Reveals Compliance, Marketing And Kickback Issues

2011-12-13T06:22:00.000-08:00

A recent Bloomberg article (Dec. 6, 2011) on hospices and in particular Harden Healthcare LLC entitled "Aunt Midge Not Dying In Hospice Reveals $14B Market" reveals issues with some hospices and the focus of government investigations. Hospices are meant for the terminally ill and given that Medicare's reimbursement rates are higher for hospice care, this has been a growth industry.

The article relays a story that caught the interest of the Department of Justice. Janet Stubbs' aunt, Doris Midge Appling, was admitted to Hospice Care of Kansas (HCK) during the company’s “Summer Sizzle” promotion drive, which paid employees as much as $100 a head for referrals. Ms. Stubbs said she had no clue that the nursing home doctor who referred her aunt for hospice moonlighted as medical director for the hospice company. The aunt was discharged after 20 months in HCK, and lived four more years before her death in April at age 106. Medicare paid nearly $80,000 for her hospice care. The aunt is now known as Patient 11 in a civil lawsuit filed by the Justice Department against HCK and its owners.

Hospice care, once chiefly a charitable cause, has become a growth industry, with $14 billion in revenues, 1,800 for-profit providers and a base of Medicare-covered patients that doubled to 1.1 million from 2000 to 2009.

The article discusses the investigations pending in the hospice business - and these are often publicly traded companies and national hospice chains. This means that independent owned hospices will also be under scrutiny and will often have less funds to devote to compliance and responding to government investigations. It is therefore critical for hospices to engage in compliance immediately since there is increased scrutiny on the industry.

The compliance issues noted in the article include:
(1) paying salespeople bonuses for increasing the number of patients enrolled and/or length of stay;
(2) admitting ineligible patients;
(3) giving salespeople a budget of $500 a month to buy lunches and gifts for doctors and nursing-facility managers and staff;
(4) paying enrollment bonuses to doctors, admissions directors and branch managers;
(5) giving pizza parties, gift cards and other extras to its registered nurses and social workers for meeting admission targets;
(6) pay to nursing home doctors who double as hospice medical directors; and
(7) paying incentives to medical directors of hospices.

The inspector general of the U.S. Health and Human Services Department is probing hospice marketing practices and financial relationships with nursing facilities. The inquiry was spawned by a 2009 report by the Medpac commission, a congressional advisory body, that found hospices “aggressively marketed” to nursing-home patients, and paid incentives to medical directors for “inappropriate” referrals and enrollments.

Complicated Laws

Under various federal statutes, paying for patient referrals or compensating employees based on the number of Medicare patients recruited may be illegal. But the laws are painfully complicated and loaded with exceptions. A conservative view of health care laws bars all employees and contractors from earning bonuses based on Medicare enrollment goals, including salesmen and managers. In structuring bonuses, it is critical to seek legal advice from an established and experienced health care lawyer before establishing the parameters.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced Medicare fraud attorney, Medi-Cal fraud attorney, California health care attorney, and California compliance attorney at tgreen@greenassoc.com.

Jackson's Doctor Gets Four Years, Will Serve Two With Good Behavior Credits. Judge Blasts Dr. Murray at Sentencing And Rejects Probation Request.

2011-11-29T12:55:00.000-08:00

Los Angeles County Superior Court Judge Michael Pastor sentenced Dr. Conrad Murray, Michael Jackson's personal physician, to the maximum possible in this case: four years in a county jail for Dr. Murray's role in Jackson's 2009 death. Judge Pastor rejected the defense's request for probation.

The sentencing follows a jury verdict earlier this month that found Dr. Murray guilty of involuntary manslaughter after treating Mr. Jackson's insomnia with a powerful surgical sedative. The jury verdict indicated that Dr. Murray used the drug, propofol, in violation of accepted medical practice.

Judge Pastor's comments at sentencing were harsh and explained why he gave the maximum time allowed. For example, he called Dr. Murray "a disgrace to the medical profession," and said that his $150,000-a-month employment with the singer constituted "money-for-medicine madness."

With good time credit, a 4 year sentence means that Dr. Murray will only serve 2 years if he has good behavior while he serves his sentence. Judge Pastor said he was barred from sending Dr. Murray, now 58 years old, to state prison, under a recent California law designed to reduce overcrowding by keeping "non-serious" felons in county jails. In fact, county jail in Los Angeles is often a worse place to serve a sentence than state prison so this does not necessarily benefit Dr. Murray. For example, exercise, meals, visitation and other rules are much stricter in the county jails.

Dr. Murray didn't speak during the 90-minute hearing. His lawyers submitted a 45-page memorandum, along with 35 character-reference letters, as part of a request for probation instead of incarceration. Dr. Murray's lead lawyer, Ed Chernoff, urged Judge Pastor to consider "the entirety of a man's book of life, as opposed to one chapter." He added: "In 56 years, he never committed a crime, never ran afoul of the law."

Separately, a lawyer representing Mr. Jackson's family read a statement that requested, in part, "a sentence that reminds physicians that they cannot sell their services to the highest bidder."

The prosecutors have asked for an absurd amount of restitution that is not presently supported by evidence submitted to the Court. Judge Pastor deferred until January 23 a request by prosecutors for more than $100 million restitution, saying that he needed more documentation to support such a large request.

The prosecution submitted a letter from a lawyer representing the Jackson estate, listing funeral expenses of more than $1.8 million. The same email estimated that Mr. Jackson personally would have earned $100 million from the concert series for which he was preparing at the time of his death. Neither estimate was supported by a balance sheet or other detailed breakdown." It's not often courts are requested to make restitution of $101,821,871.65 based on a three-line email," Judge Pastor said.

Dr. Murray's television interview hurt him at sentencing. In handing down the sentence, Judge Pastor referred to remarks included in a television documentary about Dr. Murray that aired on MSNBC days after his conviction. At one point in the program, the doctor tells an interviewer he feels no guilt because he did nothing wrong, going on to blame Mr. Jackson himself for his own death.

"Yipes!" Judge Pastor said in reference to the doctor's televised remark. "Talk about blaming the victim. There's not only no remorse, there's umbrage and outrage, on the part of Dr. Murray, against the decedent."

Attorney Comments: It is not an easy task to come before the court and ask for probation after a high profile trial. The defense lawyers had their work cut out for them and they were not assisted by their client going on national television and not showing any remorse for his conduct and claiming innocence. Even if Dr. Murray was right, television before sentencing is not the place for it. Controlling an intelligent physician who is in the unusual place of being a criminal defendant is a high-wire balancing act.

On the one hand, it is Dr. Murray's case and life and he may care more about going on television and proclaiming his innocence than how it will affect the sentencing. A lawyer can only control their client to a certain extent and then it is the client's decision and life. Some attorneys would quit if their client indicated they were going on television. Others would allow the client to make the decision even if it were a mistake. The problem is that after the mistake, some lawyers believe they will be blamed for not controlling their client.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, physician attorney, and white collar crime attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

Ex-Beverly Hills School Employee Convicted By Jury In Felony Conflict Of Interest Case: What Can We Learn From This Case?

2011-11-23T04:13:00.000-08:00

A recent conflict of interest criminal case serves as a reminder to employees and consultants (public and private) of the need to seek legal advice before entering into contracts and taking actions that could benefit oneself privately. In the public sector, there could be conflict of interest charges and in the private sector it could lead to embezzlement charges. Compliance is the key and seeking legal advice upfront is important.

On November 21, 2011, Karen Anne Christiansen, a former Beverly Hills Unified School District official was convicted by a jury of four counts of felony conflict of interest and taking more than $1.3 million through a building management contract she allegedly steered to herself. The criminal case was prosecuted by the Los Angeles County District Attorney, Public Integrity Division. A very experienced prosecutor, Deputy District Attorney Max Huntsman, was assigned to the case.

The jury took two days to reach a guilty verdict. Once the verdict was returned, the trial judge, Los Angeles Superior Court Judge Stephen Marcus, immediately ordered Christiansen remanded into custody and increased her bail to $400,000.

What happened here? The facts are interesting in that some of the actions Ms. Christiansen and her lawyers took might have forced the government's hand in filing charges against her. Or perhaps her lawyers knew a criminal case was coming and attempted to use civil litigation as a defense. Either way, it was a gamble.

In 2004, Ms. Christiansen was hired by the Beverly Hills School District at a salary of $113,000 per year to be the project manager for the $334 million Measure E Bond. The allegation was that the secretly negotiated a deal to be an independent contractor through her company Strategic Concepts while performing her employee duties for the school district. Strategic Concepts received the contract and was paid $5.2 million for consulting services between 2006 and 2009. The Beverly Hills School District terminated Strategic Concepts in 2009.

This case began with civil litigation commenced by Strategic Concepts suing the District for $16 million in damages. The District countersued for $4 million in damages. After the District spent over $1 million on the civil case, the District Attorney's Office became interested, investigated and ultimately filed criminal charges and stayed the civil lawsuit. The conviction in the criminal case will probably be a ground for the District to file a motion for summary judgment. Query as to whether Ms. Christiansen's attorney had fully evaluated her criminal exposure prior to filing a lawsuit and negotiated a comprehensive settlement with the District or decided not to file a civil lawsuit, would the result in this case have been different?

Sentencing for Ms. Christiansen is scheduled for January 5, 2012 in Department 102 of the Los Angeles County Superior Court in downtown Los Angeles, and she faces a maximum state prison term of eight years. Given that the jury reached a finding that there was an "excessive taking" of $1.3 million, probation may not be an option for Judge Marcus and may be grounds for the higher end of the sentencing range.

There is a co-defendant in the case as well, Jeffrey Hubbard, 54, the former superintendent of the Beverly Hills Unified School District. He faces three counts of misappropriation of public funds in connection with the case and his case goes to trial next.

Mr. Hubbard – now superintendent of the Newport Mesa Unified School District – was charged in December 2010 with two counts of misappropriation of public funds for allegedly giving Ms. Christiansen more than $20,000 in unauthorized gifts and giving her increases in her car allowance that were unauthorized by the school board. On Oct. 11, Hubbard was arraigned on a Grand Jury indictment charging him with a new count of misappropriation of public funds. The new charge stems from his alleged direction of a subordinate to give a raise to a female employee without school board authorization. His next court date is December 12 for a pretrial hearing.

We have represented both both private and public employees in criminal investigations or civil lawsuits for "self-dealing" or conflict of interest. Business practices are under greater scrutiny and the laws for public employees are very detailed and complicated. For example, the California Attorney General's Office published a lengthy 136-page Guide to financial conflicts of interest by local and state executive and legislative officials. This is just one small part of conflict of interest laws - and compliance with conflict of interest rules is the best way of avoiding a civil lawsuit, fines or criminal prosecution.

This case is unusual in that it is a high profile school district and it seems doubtful that Ms. Christiansen did not fully comprehend her criminal exposure prior to filing the civil lawsuit. What seemed like a contract case turned into a criminal case. We have handled many "civil" lawsuits that have criminal implications and therefore become "sensitive" cases that cannot be handled like traditional civil cases. Full evaluation of cases before filing is key to a successful global result.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California conflict of interest attorney, California self-dealing attorney, California white collar attorney, and California compliance attorney at tgreen@greenassoc.com.

California Medical Association Reverses Their Stance On Legalizing Marijuana - Asks For Legalization And Wider Regulation

2011-10-17T18:11:00.000-07:00

The California Medical Association (CMA) has adopted official policy recommending legalization and regulation of cannabis. The decision was based on a CMA white paper that concludes physicians should have access to better research, which is not possible under current drug policy. The CMA's paper, available here, is a study and response to this important and controversial issue.

CMA is the first statewide medical association to take this official position.

“CMA may be the first organization of its kind to take this position, but we won’t be the last. This was a carefully considered, deliberative decision made exclusively on medical and scientific grounds,” says CMA President James T. Hay, M.D. “As physicians, we need to have a better understanding about the benefits and risks of medicinal cannabis so that we can provide the best care possible to our patients.”

CMA’s Board of Trustees adopted the policy without objection at its October 14 meeting in Anaheim.

The federal government currently lists cannabis as a Schedule I drug. That classification restricts the research and ability to study the substance. Part of the policy adopted by CMA emphasizes that the drug should be rescheduled in addition to being legalized.

“There simply isn’t the scientific evidence to understand the benefits and risks of medical cannabis,” says Paul Phinney, M.D., CMA Board Chair. “We undertook this issue a couple of years ago and the report presented this weekend is clear – in order for the proper studies to be done, we need to advocate for the legalization and regulation.”

“We need to regulate cannabis so that we know what we’re recommending to our patients,” says Dr. Phinney. “Currently, medical and recreational cannabis have no mandatory labeling standards of concentration or purity. First, we’ve got to legalize it so that we can properly study and regulate it.”

Physicians, who are currently only allowed to “recommend” medical cannabis, have been stuck in an uncomfortable position, since California decriminalized the drug in 2006.

“California has decriminalized marijuana, yet it’s still illegal on a federal level,” says Dr. Hay. “That puts physicians in an incredibly difficult legal position, since we’re the ones ultimately recommending the drug.”

The regulation of medical cannabis will allow for wider clinical research, accountable and quality controlled production of the substance and proper public awareness. CMA also recommends the regulation of recreational cannabis so that states may regulate this more widely used cannabis for purity and safety.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, physician attorney, and California Medical Board attorney at tgreen@greenassoc.com.

Miami Federal Judge Imposes Longest Sentence Ever For Medicare Fraud - 50 Years - On Executive Of Mental Health Care Company

2011-09-26T11:51:00.000-07:00

Mr. Lawrence Duran - Sentenced to 50 Years

After a 3-day sentencing hearing, Miami resident Lawrence Duran, the owner of a mental health care company, American Therapeutic Corporation (ATC), was sentenced on September 16, 2011 to 50 years in prison by U.S. District Judge James Lawrence King in the Southern District of Florida. This case arose from an alleged $205 million Medicare fraud scheme by a chain of Miami-based mental health clinics.

Judge King ordered Mr. Duran to pay more than $87 million in restitution, jointly and severally with his co-defendants. Mr. Duran was also sentenced to three years of supervised release following his prison term. Mr. Duran’s lawyer, Lawrence Metsch, urged the judge to be realistic and give him a sentence between 20 and 25 years, arguing that 50 years means a “death sentence because he would die in prison.” But Judge King sided with the government’s push for the extraordinarily high sentence, saying there is a “critical need for deterrence against healthcare fraud” in South Florida, the nation’s capital of Medicare corruption.

Previously, the highest Medicare fraud sentence was 30 years — given in 2008 to a Miami physician, Ana Alvarez-Jacinto, convicted in an HIV-therapy scheme.

35 year sentence for Ms. Valera. On September 19, 2011, Judge King sentenced co-defendant, Marianella Valera, the other owner of ATC and Mr. Duran's girlfriend, to 35 years in prison and ordered her to pay the $87 million in restitution, jointly and severally. This was another long sentence. Miami judges, who were known for long sentences in large drug cases are not treating Medicare fraud cases any differently. Thus, where a defendant is charged can determine his or sentence or exposure to a sentence if they do not win at trial.

Plea Agreement After Superseding Indictment. These sentences came after a plea agreement. On April 14, 2011, Mr. Duran and Ms. Valera pleaded guilty to all counts charged in a superseding indictment, which was unsealed on Feb. 15, 2011. The superseding indictment charged Duran with 38 felony counts and Valera with 21 felony counts, including conspiracy to commit health care fraud, health care fraud, conspiracy to pay and receive illegal health care kickbacks, conspiracy to commit money laundering, money laundering and structuring to avoid reporting requirements. One co-defendant went to trial and was convicted by a jury.

Mr. Duran and Ms. Valera were remanded to the custody of the U.S. Marshals Service after their arrest on Oct. 21, 2010, and have been detained since that time since there was concern that they were a flight risk. Their assets were frozen at the time of their arrests through civil forfeiture proceedings. ATC and Medlink pleaded guilty in May 2011 to conspiracy to commit health care fraud. ATC also pleaded guilty to conspiracy to defraud the United States and to pay and receive illegal health care kickbacks.

In pleading guilty, Mr. Duran and Ms. Valera admitted that they orchestrated and executed a scheme to defraud Medicare beginning in 2002 and continuing until they were arrested in October 2010. Duran and Valera submitted false and fraudulent claims to Medicare through ATC, a Florida corporation headquartered in Miami that operated purported partial hospitalization programs (PHPs) in seven different locations throughout South Florida and Orlando. A PHP is a form of intensive treatment for severe mental illness. Mr. Duran and Ms. Valera also used a related company, American Sleep Institute (ASI), to submit fraudulent Medicare claims.

According to court documents, Mr. Duran, Ms. Valera and others paid bribes and kickbacks to recruit Medicare beneficiaries to attend ATC and ASI and billed Medicare for treatments purportedly provided to these recruited patients. According to court documents, the treatments were medically unnecessary or never provided at all. Mr. Duran and Ms. Valera supported the kickbacks through an extensive money laundering scheme that aimed to conceal the illicit conversion of Medicare payments to cash.

Mr. Duran, Ms. Valera and others admitted they paid kickbacks to owners and operators of assisted living facilities (ALFs) and halfway houses and to patient brokers in exchange for delivering ineligible patients to ATC and ASI. In some cases, the patients received a portion of those kickbacks. They and others actively recruited ALF and halfway house owners and operators and patient brokers. Throughout the course of the ATC and ASI conspiracy, millions of dollars in kickbacks were paid in exchange for Medicare beneficiaries, who did not qualify for PHP services, to attend treatment programs that were not legitimate PHP programs so that ATC and ASI could bill Medicare for more than $205 million in medically unnecessary services.

Alteration of patient records also played a role in this case. According to the superseding indictment to which they pleaded guilty, Mr. Duran, Ms. Valera, and others caused the alteration of patient files and therapist notes for the purpose of making it falsely appear that patients being treated by ATC qualified for PHP treatments. According to court documents, Mr. Duran and Ms. Valera also instructed employees and doctors to alter diagnoses and medication types and levels to make it falsely appear that ATC patients qualified for PHP services. Mr. Duran, Ms. Valera, and others charged as co-conspirators caused doctors to refer ATC patients to ASI even though the patientsdid not qualify for sleep studies.

According to the superseding indictment to which they pleaded guilty, the defendants also engaged in a money laundering conspiracy to enrich themselves and to provide cash for the millions of dollars in kickbacks paid to recruit Medicare beneficiaries. According to court documents, they used another company they owned and operated, Medlink, to conceal the health care fraud and kickbacks from Medicare and law enforcement.

Once Medicare paid ATC and ASI for the fraudulently billed services, Mr. Duran, Ms. Valera, and others transferred millions of dollars to Medlink. They and others opened phony corporations to receive checks and wire transfers from both ATC and Medlink to convert that money into cash for their personal enrichment and for the payment of kickbacks. According to court documents, Mr. Duran, Ms. Valera, and others cashed checks at different bank branches and different locations to conceal the true purpose of their activities and to evade reporting requirements.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Physician Kevin Brown's Sentencing Is Delayed Until November. Commentary On Use Of Undercovers In Physicians' Offices & Importance of Chaperones

2011-09-25T12:23:00.000-07:00

Photo by: Nick Ut AP

Dr. Kevin Brown, the son of a former Premier of Bermuda, had his sentence for sexually assaulting patients delayed September 21, 2011, because he is requesting a retrial. The case is pending in Los Angeles County Superior Court before Judge Pastor.

Dr. Brown was convicted by a jury on August 15 of committing sex attacks on nine female patients under the guise of breast and pelvic examinations from 2003 to 2008. The majority of the alleged assaults occurred at the Crenshaw Expo Medic Center at 3631 Crenshaw Blvd., Los Angeles where Dr. Brown practiced.

One of these “female patients” was an undercover LAPD officer who posed as a patient. The undercover female LAPD officer posed as a patient with an ankle injury, and Dr. Brown was found guilty of pulling her top up and exposing her breasts as she was getting ready to leave.

He dismissed the allegations as lies, and his lawyer, Edi Faal, questioned the credibility of the witnesses. However, he was found guilty of 21 counts including sexual battery by fraud, sexual exploitation by a physician, sexual penetration by a foreign object and committing a lewd act. The jury deadlocked on eight felony counts, including rape. Judge Michael Pastor declared a mistrial on those counts.

Although Dr. Brown had been free on $4 million bond while the case and trial were pending, he was taken into custody after the verdict was announced. The 40-year-old doctor faces a maximum term of 16 years and ten months in state prison. According to Deputy District Attorney Ann Marie Wise. Mr. Faal plans to argue once again that the victims were not credible, but did not file his motion in time for it to be heard yesterday.

The sentencing has now been rescheduled for November. It is likely that if the motion for new trial is denied, the case will proceed to sentencing.

Medical Board Status: To date, the Medical Board has not filed an Accusation against Dr. Brown and is likely waiting for sentencing. While the case was pending, Dr. Brown was free to practice as long as he complied with a court order issued by the criminal Judge Hall at the arraignment/bail hearing on September 9, 2008 which provided that:

"In the event defendant Kevin Brown makes bail, he shall not see any female patients without a chaperone approved by the California State Medical Board and said chaperone is not to be an employee of Dr. Brown."

Dr. Brown would be able to practice if he could be released on bail while pending sentencing, subject to the chaperone restriction. Currently he cannot practice because he is in custody.

ATTORNEY COMMENTARY: There are two important things to learn from this case regardless of how well or clean you run your practice.

First, the Medical Board is being much more proactive and is using undercover officers in order to obtain recordings and definitive proof in cases. Whether it is a physician or health care provider suspected of prescribing medically unnecessary drugs (especially pain medications or medical marijuana) or one who has boundary issues with patients and makes unwanted physical or sexual advances -- the Board is cooperating with local law enforcement and sending in undercover officers. Assume every patient is wearing an undercover wire and you will save yourself a great deal of expense and trouble and help protect your license.

Second, I find some physicians reluctant to use chaperones while examining female patients. The added expense of a medical assistant is small compared to the risk to your license and liberty if someone makes a false claim. That chaperone should write their initials in the chart showing their presence. In addition, the chaperone can be used to increase your productivity. For OB-GYNs, plastic surgeons, dermatologists and other practices with a high female patient percentage -- you WILL encounter at least a small percentage of patients with mental health issues. Statistically, it can easily happen that the patient interprets your exam in a way that it was not intended or that typical patient-physician chit chat is interpreted as "flirting," etc.

Example: I had one physician client who was double-boarded OB-GYN and Oncologist and was very thorough. One patient complained that there was sexual touching simply because he did the breast exam with her lying on the table and sitting up (apparently no one had ever examined her breasts which were fibrous sitting up) and the other patient had elephantitis of the vagina and he performed a clitoral exam which he fully explained was needed due to high risk of tumors and she complained of a sexual touching. Both complaints were dismissed after an interview but a chaperone who signed the chart would have been important and substantive evidence if the case had gone any further.

Points of today's article: (1) Use chaperones when examing patients of the opposite sex and any patient who shows any signs of mental distress or illness, and

(2) Assume every patient is undercover and is wearing a wire or video recording device. Do not say or do anything you would not want recorded or videotaped.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, administrative attorney, and California Medical Board attorney at tgreen@greenassoc.com.

California Reaches $49.5 Million Settlement With Labcorp (State's 2nd Largest Lab)

2011-09-23T05:26:00.000-07:00

California recently announced a $49.5 million settlement with Laboratory Corporation of America, the state's second largest provider of medical laboratory testing, stemming from a qui tam lawsuit alleging illegal overcharges to the state's Medi-Cal program for the poor. In May, Attorney General Harris announced a settlement of $241 million with Quest Diagnostics for the same alleged practice.

Our firm represented one of the smaller laboratories in this case which also settled for business reasons and, thus, we have followed the settlements in this case closely.

The settlement with Labcorp is the result of a lawsuit filed under court seal in 2005 by a whistleblower and referred to the Attorney General's office. The lawsuit alleged that Labcorp and other medical laboratories systematically overcharged the state's Medi-Cal program for more than 15 years and gave illegal kickbacks in the form of discounted or free testing to doctors, hospitals and clinics that referred Medi-Cal patients and other business to the labs.

According to the allegations in the lawsuit, Labcorp charged Medi-Cal over five times as much as it charged some other customers for certain tests. For example, Labcorp was accused of charging Medi-Cal $35.04 to test for total testosterone, while it allegedly charged another customer $7.36 for the same test. What the state did not realize was that in servicing certain low-income community clinics, the labs had to charge a lower price given that the State's reimbursement to the clinic was too low for the clinic to pay the lab the standard rate.

This case was filed as a qui tam case. Under the state's False Claims Act, any person with previously undisclosed information about a fraud, overcharge, or other false claim can file a sealed lawsuit on behalf of California to recover the losses, and is entitled to a share of the recovery in some cases. Such individuals become plaintiffs and are known as "whistleblowers," "qui tam plaintiffs," or "relators."

In this case, the whistleblowers were Chris Riedel and his company Hunter Laboratories. Hunter Laboratories allegedly found it could not compete in a significant segment of the marketplace where major medical laboratories such as Labcorp offered doctors, hospitals and clinics far lower rates than they were charging Medi-Cal.

Attorney Commentary: The State is making it more difficult for smaller and medium-sized laboratories to co-exist with large national laboratories. In this case, the State's real targets were the larger laboratories since they could obtain larger monetary settlements from them. Given the state of the economy and the lack of funding for Medi-Cal, we can expect more qui tam cases against larger health care providers.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, administrative attorney, and California Medical Board attorney at tgreen@greenassoc.com.

Medical Board of California Issues Fraud Alert re Imposter Investigator

2011-07-08T13:03:00.000-07:00

The Medical Board of California has issued a "Physician Fraud Alert" warning that several physicians in the Los Angeles area have been contacted by a individual impersonating a Board investigator. The individual has been asking for the physicians' social security number and credit card information, and threatens cancellation of the physician's license if the physician does not comply. Unfortunately, the Alert does not provide any further description of this individual.

This individual is not associated with the Board. If a physician is contacted by an individual requesting social security or credit card information, the physician is advised to contact local law enforcement and the Board. Physicians are cautioned to take necessary precautions to protect their personal financial information.

Here is a link to the Alert: http://www.medbd.ca.gov/physicianFraudAlert.html

Vice-President of Tampa Physical Therapy Company Pleads Guilty to Conspiracy To Commit Health Care Fraud

2011-05-31T13:17:00.000-07:00

Medicare fraud criminal cases involving physical therapy are not that common but a recent case out of Florida went criminal based on allegations that involved pure fraud in billing for services not provided. On May 27, 2011, Andres Cespedes, an owner and vice-president of a physical therapy company, Dynamic Therapy Inc. pleaded guilty to one count of conspiracy to commit health care fraud for his role in a scheme to defraud Medicare before U.S. Magistrate Judge Mark A. Pizzo in Tampa, Florida.

According to court documents, Mr. Cespedes was the vice president of Dynamic Therapy Inc. Mr. Cespedes and his co-conspirators purchased Dynamic from its prior owners and transformed it into essentially fraudulent enterprise. Dynamic purported to provide physical therapy services to Medicare beneficiaries, but in reality obtained patient information through kickbacks and bribes and billed Medicare for physical therapy that never occurred.

According to court documents, from fall 2009 to summer 2010, Mr. Cespedes submitted and caused the submission of $757,654 in fraudulent claims to the Medicare program by Dynamic. Mr. Cespedes admitted that he and his co-conspirators paid and caused the payment of kickbacks and bribes to Medicare beneficiaries in order to obtain their Medicare billing information, and used it to submit claims to Medicare for physical therapy services that were never provided. According to court documents, the owners and operators of Dynamic also stole the identities of a physical therapist and Medicare beneficiaries in order to submit additional false claims to Medicare.

Mr. Cespedes admitted that he knew the Medicare beneficiaries, on whose behalf claims were submitted to Medicare by Dynamic, never received the services billed to Medicare. At sentencing, Cespedes faces a maximum penalty of 10 years in prison and a $250,000 fine. A sentencing date has not been set.

Attorney Commentary - Providers: Watch Out For Identity Theft: For health care providers including physical therapists, the biggest concern raised by this case is how the identity of the physical therapist was stolen. We have seen the identities of physicians and other health care providers stolen before in a very simple manner. Companies or individuals who want to steal identities sometimes place advertisements for jobs in a newspaper or website and then the applicants will send ALL the information attached to their CV including UPIN number, social security number, license number and other identifying information. That information is then submitted on a Medicare or Medicaid application to obtain a provider number for a new location. Therefore, be careful when applying for jobs and sending your information to blind addresses.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney who has represented physical therapists and a variety of other health care providers at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in health care legal matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Fired Mayo Radiology Technician With Drug Problem Indicted After He Diverted Drugs And Spread Hepatitis By Injecting Patients With Same Used Syringe He Used On Himself

2011-05-28T11:43:00.000-07:00

An unusual health care related criminal case is pending in Jacksonville, Florida. This is not a fraud case but one where patients were allegedly harmed or killed by a hospital employee who was addicted to drugs, diverted drugs meant for patients and when he injected patients with a saline solution -- after having injected himself with the patients' drugs -- he ended up injecting and infecting patients with his own Hepatitis C virus.

On May 24, 2011, the U.S. Attorney's Office in the Middle District of Florida unsealed an indictment charging a radiology technician Steven Beumel, (48, Orange Park) with five counts of tampering with a consumer product, resulting in death or serious bodily injury, and five counts of obtaining a controlled substance by fraud. If convicted on all counts, Mr. Beumel faces a maximum penalty of life in federal prison.

According to the indictment, Mr. Beumel was a radiology technician at Memorial Hospital from May 1992 through October 2004. Mr. Beumel also worked as a radiology technician at Mayo Clinic from October 2004 through August 2010.

The indictment alleges that Mr. Beumel, before patients’ procedures, diverted syringes of Fentanyl (a synthetic opiad) meant for patients and injected himself with the Fentanyl. Mr. Beumel has allegedly admitted to been addicted to Fentanyl. He then allegedly refilled the empty syringes with saline, but these syringes were now contaminated with his own Hepatitis C Virus. Mr. Beumel has contended that he did not know he had Hepatitis C Virus.

According to the indictment, five different patients contracted Hepatitis C from Mr. Beumel. The indictment alleges that one patient died as a result from Mr. Beumel’s tampering.

An indictment is merely a formal charge that a defendant has committed a violation of the federal criminal laws, and every defendant is presumed innocent unless, and until, proven guilty.

This case was a joint federal and state investigation by the Federal Bureau of Investigation, the Food and Drug Administration, the Florida Department of Financial Services, and the Jacksonville Sheriff’s Office, Homicide Unit.

In a statement released by Mayo, the hospital said it continues to extend its deepest condolences to family and friends of those killed or injured by the hepatitis C transmission. Mayo has strengthened security changes to control narcotics, and expanded the hospital's drug-screening panel for potential new hires.

Commentary: This case is a reminder that health care providers need to be careful in screening employees, monitoring employees for signs of drug or alcohol addictions, psychological problems, personality disorders and other issues employees might have that could cause them to act out and hurt other employees or patients (intentionally or inadvertently). The liability that these hospitals could face for the alleged actions of this radiology technician are significant. For smaller providers, a rogue or drug addict employee could cost them their business if there is not sufficient insurance to cover such liabilities. Moreover, an employee with a drug or alcohol problem could pose a danger to patient safety.

Health care providers need to monitor their employees and remember the great responsibility they have for patients' health. Diverting drugs is an all too common problem in hospitals and clinics.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Owners, Managers, Employees & Patient Recruiter of Los Angeles Durable Medical Supply Business Convicted Of Health Care Fraud

2011-04-15T11:17:00.000-07:00

One Los Angeles medical supply company that was billing Medicare for power wheelchairs has resulted in six arrests and convictions. Five were convicted by plea agreement and one defendant went to trial and was convicted. Not everyone has been sentenced in this case but even with plea agreements, the sentences so far have been lengthy (30 to 57 months) and show a trend in prosecuting employees who are not owners.

In September 2008 after an investigation by the federal Medicare Fraud Strike Force, the following people associated with Santos Medical Supply in Los Angeles were arrested and have plead guilty:

(1) Marlon Oslvaldo Palma, co-owner of Santos Medical Supply (57 months sentence);

(2) Elsie Edmonds, other co-owner of Santos Medical Supply (57 months sentence);

(3) Heber Josue Gonzalez, 30, manager of Santos Medical Supply (30 months sentence);

(4) Kelechi Ajoku, 29, a registered nurse purportedly in charge of Santos’ facility and its prescription items (sentencing scheduled May 6 by Judge Snyder after a jury convicted him of making false statements in connection with health care matters);

(5) Leslie Duarte, 25, defendant Elsie Edmond’s daughter and a manger at Santos (pleaded guilty to conspiracy and is scheduled to be sentenced); and

(6) Gloria Cristina Hernandez, 62, a patient recruiter (pleaded guilty to conspiracy and is scheduled to be sentenced by Judge Snyder on April 27).

According to the government, Santos Medical Supply submitted nearly $3 million worth of fraudulent claims to Medicare for alleged unneeded electric wheelchairs and other DME, which paid out $1,822,016. The $3 million in billing is important since that is used to calculate "intended loss" under federal sentencing laws.

For example, in Mr. Palma's plea agreement, he admitted to submitting claims to Medicare for $5,000 power wheelchairs and other medical equipment that were unnecessary and, in many instances, never provided to patients. Mr. Palma also admitted to having bought Medicare patient information and bogus prescriptions from a medical clinic and patient recruiters and then used that information to bill Medicare.

As I have written before, the power wheelchair cases are part of a project by the Medicare Fraud Task Bureau. There are more cases to come in both the state and federal jurisdictions. If you owned or worked at a DME where power wheelchairs were billed, you should consult counsel to determine if you have any exposure in these investigations. Issues to analyze include: (1) cost of wheelchair and markup to Medicare; (2) delivery records; (3) medical necessity; (4) use of marketers; (5) transportation of patients to referring clinics; (6) cash withdrawals from bank accounts; and (7) numerous other issues that are case dependent.

Further, if you are a physician who wrote prescriptions for power wheelchairs in Los Angeles County or California, you should also consult counsel. Even if physicians are not charged, Medicare and Medi-Cal are aggressive about suspending provider privileges based on suspicion of fraud and abuse and physicians could be witnesses in criminal cases or be subject to complaints to the Medical Board.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Frequently Asked Questions: Should I Expunge My Conviction If I Am A Licensed Professional Or Want To Apply For A State License? What Is Expungement? Can I Get A Felony Reduced To A Misdemeanor?

2011-02-14T09:22:00.000-08:00

Here is the second in a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings. This post will also assist other professionals and persons for whom a state conviction would affect their employment opportunities.

Question 2: What is an expungement?

Answer 2: In California, the law regarding expungements is governed by Penal Code Section 1203.4 and 1203.4a. An expungement reopens your criminal case, dismisses and sets aside the conviction or plea (of guilty or no contest), and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record. There are three types of expungements:

(1) Penal Code 1203.4 allows the court to expunge cases in which probation was part of the sentence. For example, straight probation cases or those with probation and county jail. The court must grant these expungements if you are not on probation, have completed all terms of your probation (including restitution and fines) and do not have a current crimnal case.

(2) Penal Code 1203.4a allows the court to exercise its discretion and expunge cases in which there was no probation. In these cases, it is important to submit a declaration with setting forth your rehabilitation, the reasons you want expungement, and other relevant information. We often represent clients in these type of expungements where the court has discretion to deny the expungement.

(3) Penal Code 17 allows the court to reduce certain felony conviction to a misdemeanor. The misdemeanor can then be dismissed or expunged. If you received state prison as your sentence, you are not eligible for a reduction to a misdemeanor. You will need to file paperwork for a Certificate of Rehabilitation instead.

This will be addressed in a subsequent post but if you had a felony conviction it it is important to have the conviction reduced to a misdemeanor before it is expunged. In determining whether to enter into a plea agreement, having a "wobbler" felony which can later be reduced to a misdemeanor is often a key negotiating point.

An expungement does not seal or destroy a client's criminal record, but it allows the client to state to a private employer (not to government or state licensing agencies or to certain publicly funded employers like the lottery) that he or she has not been convicted of a crime. Expungement of a client's record helps increase the likelihood that the client will be able to obtain employment and shows increase his or her family's financial stability.

Question 3: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past. Should I have it expunged before I begin the application or license renewal process or will it make any difference?

Answer 3: Yes. Have it expunged since the expungement can be used as mitigating evidence by the Board or Bureau. As noted in my prior post on this topic (Do I Need To Disclose Convictions That Have Benn Expunged In Professional License Or Government Applications?), the expungement does not relieve you of the requirement to report the expunged conviction but is useful in order to obtain a license or obtain a lesser amount of discipline.

I recommend that everyone have their convictions expunged since it also allows you to answer "no" to the question of whether you have ever been convicted of a felony or misdemeanor in any job application. However, remember that many employers conduct background checks and the conviction will still show up in background checks along with the expungement.

Question 4: Once my conviction is expunged, can I answer "No" to questions about convictions on job applications?

Answer 4: Legally, you may answer "No" to these types of questions. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed.

I have had calls from frustrated job applicants realizing they were losing employment opportunities after the background checks. Thus, if you know it is a large company that will run a background check, you may decide that answering "No" could look dishonest. A better response for some employers may be "Yes in 2005, but case dismissed and expungement granted in 2009."You could also attach a letter of explanation to explain the circumstances and how you have turned your life around and what you learned from that experience.

If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate or permit, the conviction will be discovered during the standard background check. You should disclose the conviction and expungement in these situations.

If you are applying for a government-issued license, certificate, or permit, you must disclose your conviction and expungement.

As I noted in a prior post, the California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process (including proper expunegment and reduction to a misdemeanor) can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation and expungement package and explanation can often save clients hundreds of thousands of dollars over a few years. It is in investment that is often well spent.

Any questions or comments should be directed to Tracy Green, an experienced California board attorney, administrative attorney, and California licensing attorney with more than 20 years' experience at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

Happy Valentine's Day

2011-02-14T07:34:00.000-08:00

Do I Need To Disclose Convictions That Have Been Expunged In Professional License Or Government Applications?

2011-02-13T12:00:00.000-08:00

Here is a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings.

Question 1: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past but it was expunged. Do I need to disclose it?

Answer to Question 1: The short answer is "YES." The failure to disclose expunged convictions gets more applicants into trouble with Boards and Bureaus (and results in probably as many denials of licenses) than the disclosing of the conviction does since it allows the Board or Bureau to deny your application on the ground that you "made a false statement" on your application. The hallmark of professionalism is honesty so if they see you any false statement, it is a huge problem and claiming you did not understand that you had to disclose the expunged conviction is not persuasive after the fact.

In fact, it is not only "expunged" convictions you will probably have to disclose but also other kinds of arrests that resulted in diversion or deferred entry of judgment. It is necessary to read the application carefully and the definition of "conviction."

And long answer is that "Yes, you disclose but you want to disclose it in the best manner possible." A well written statement of explanation and mitigation package submitted to the Board or Bureau can make a huge difference in how your application is treated.

Remember, an expungement does not:

Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal. Thus, when the agency does a background check it will come up.
Allow you to omit the conviction from applications for government-issued licenses.
Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc.
Seal the court case file from public inspection. The court file remains public record.

I am often hired to help physicians, lawyers, nurses and other professionals submit written explanations and packages of prior convictions. It is often necessary where my clients speak English as a second language and also do not understand culturally how to present this type of information in the best light possible. You need to take full responsibility for your actions, be accurate and honest and at the same time explain how something like this will not ever happen again.

It is better if I am involved from the beginning but often I get hired after the application has been denied and we need to file an appeal. The old saw that "good beginnings make good endings" applies here and even educated clients need an objective person to know how to write for the Board or Bureau.

There is usually some aspect of shame, embarrassment or emotion involved (especially when the conviction is old or was unfair) that can cause the applicant to not take it as seriously as it should. Or it is assumed that because the conviction is over 10 years' old, it will not be used to deny a license or application.

The California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation package and explanation can often save clients hundreds of thousands of dollars over a few years. It is in investment that is often well spent.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

Former State Employee Who Inspected California Alcohol Drug Rehab Clinics Sentenced to 41 Months in Federal Prison for Taking Cash Bribes

2011-01-11T10:03:00.000-08:00

In Los Angeles, on January 10, 2011, former state employee Gary Eugene Goethe, 48, of Sacramento, was sentenced by United States District Judge Gary A. Feess to 41 months in federal prison after pleading guilty to four counts of extortion under color of official right and two counts of bribery charges for demanding more than $100,000 in bribes from the owners of two drug rehabilitation clinics.

Mr. Goethe pleaded guilty in May 2010 pursuant to a written plea agreement. In addition to the prison term he received today, Mr. Goethe was ordered to repay the bribes he received during the FBI’s undercover investigation of his corrupt activities.

Mr. Goethe worked for the California Department of Alcohol and Drug Programs (ADP) as a Drug Medi-Cal Monitoring Supervisor who traveled to alcohol and drug treatment clinics throughout California to inspect records and documentation related to Medi-Cal billings. ADP, which receives federal funding, is responsible for administering prevention, treatment and recovery services for alcohol abuse, drug abuse and problem gambling. The case was prosecuted in Los Angeles because the clinics at issue were in the Central District of California.

Mr. Goethe was arrested on July 9, 2009 by FBI special agents as he was leaving a meeting where he accepted a $3,500 cash payment that was part of a $10,000 bribe he had negotiated. Mr. Goethe subsequently pled guilty to having solicited and accepted bribes from rehabilitation facility owners in exchange for his promises of approvals and other benefits. In a plea agreement filed in this case, Mr. Goethe admitted that he told a clinic owner that he could help the owner obtain certifications that would allow the owner to expand service offerings to include mental health treatment. Mr. Goethe admitted having promised that, in exchange for cash bribery payments, he could “guarantee” that the owner’s clinics would obtain certification to provide mental health treatment services. Goethe demanded $92,000 in bribery payments from the owner.

In relation to another facility, Mr. Goethe admitted that he revealed to the owner that the clinic was being investigated by the California Department of Justice (CalDOJ), but, in exchange for a cash bribe, he could “help” the clinic owner by providing confidential information about the subjects and progress of the investigation, as well as steering CalDOJ away from the clinic. Mr. Goethe admitted that he demanded $10,000 in bribe payments from the owner of this facility. During sentencing, Judge Feese commented that Mr. Goethe’s conduct was “essentially a shakedown of those...over whom he has authority and the ability to control."

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

California Physician Charged With Sexual Crime Against A Patient: When Do Physicians & Other Licensed Professionals Have To Report Criminal Charges Or Convictions To Their Board?

2011-01-08T09:46:00.000-08:00

Here is a recent case which I will use as a case study to discuss when do arrests and charges need to be reported. Although this case uses the Medical Board, the same analysis applies to other licensing agencies even though each agency's rules are slightly different.

On December 30, 2010, the Ventura County District Attorney's Office filed charges against Dr. Barry Lefkovitch of Thousand Oaks, California. Dr. Lefkovitch has been charged with two felony violations of Penal Code Section 289(d) (4), forcible sexual penetration by fraud, perpetrated upon a patient of the defendant and one count of sexual battery.

The allegations in the felony complaint are that Dr. Lefkovitch assaulted one of his patients during a routine visit at his medical practice on Dec. 13, 2010. Each charge carries a maximum possible prison term of eight years. The case was investigated by the Ventura County Sheriff's Department.

Dr. Lefkovitch appeared for arraignment on these charges on December 30, at which time the arraignment was continued to February 1, 2011. Dr. Lefkovitch was released on his previously posted $250,000 bail bond with the condition that he not treat female patients without a third person, a medical/health professional, present. This was an interesting term of bail and is much better than the Medical Board seeking to close his practice while charges are pending.

This case is unusual in that the Medical Board of California is working with the investigating agency and participated in the execution of search warrants at Dr. Lefkovitch's home and medical offices.

The charge in Penal Code Section 289(d)(4) requires that the government prove beyond a reasonable doubt that the patient "was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose."

Investigators have publicized the doctor's arrest and filing of criminal charges claiming they "are concerned there may be other patients who have been victims of similar acts by Dr. Lefkovitch and encourage anyone with information" to contact the assigned detective. In such cases, one is always concerned that false claims could be reported by individuals seeking attention. However, law enforcement could use other acts by the doctor to help prove its case even if there were no charges filed.

Using this doctor's case as a case study, when does he have to report to the Board that he has been charged with an offense? Assuming that the Medical Board is not involved, he would not have to report the arrest at this point. Nor would he need to report the filing of a state criminal complaint. He would, however, have to report the charge after a preliminary hearing when he has been held to answer and after a document known as an "Information" is filed in his criminal case. In the majority of state cases, there are no "indictments." However, in federal cases, "indictments" are the norm. Thus, if he had been indicted on a federal felony charge, he would have had to report it within 30 days.

When Do You Have To Inform The Medical Board That You Have Been Arrested Or Charged With A Crime? In this doctor's case, the Medical Board was aware of the investigation from its inception and thus a file has already been opened. In typical criminal cases, the Medical Board is not aware of the filing of criminal charges whether a misdemeanor or felony. When do you need to self-report and how do you do it? What are your options assuming the Board is not aware of your case?

There is a statute that governs the reporting of criminal charges (California Business & Profession Code Section 802.1) to the Medical Board in California. The Medical Board also has a form on which you self report where required. (Click on this link to go to the form.) Have your attorney review the form so you do not make any mistakes or unintentional misrepresentations.

1) If you have been arrested for a misdemeanor, you do not need to report the arrest. However, this means that your main goal should be to get the misdemeanor dismissed so there is no conviction. Physicians and other licensed professionals need to be aware that misdemeanor convictions will result in discipline in today's world. Five or ten years ago it may have been only a public reprimand but the world has changed in this regard. The licensing boards and agencies are under greater public scrutiny and are more aggressive in pursuing discipline even when it is not a "patient or client related" offense. The catch all "moral turpitude" ground is used to justify discipline against the professional.

Case Study On Felony Shoplifting Case Resolved Prior To Preliminary Hearing For example, I recently represented a physician for shoplifting in a state case. Since the loss was over $400 (and she had a prior arrest for shoplifting) it was filed as a felony. Although she was offered a plea involving no jail time and a reduction to a misdemeanor, we aggressively represented the case and negotiated an agreement before any preliminary hearing (which would have triggered the reporting requirement). The plea involved community service, attending a program on shoplifting, payment of fines and the charge was reduced to a traffic infraction. Thus, there were no reporting requirements.

If she had been convicted of even a misdemeanor, she would have been subject to probation by the Board. The cost of her criminal defense was far less than the money she would have lost had she been placed on probation by the Medical Board since she would have lost many of her insurance contracts and the probation would have been reported on the Medical Board website. This is why we represent the physician in both the criminal and administrative case - so there is unified strategy (and it is more cost efficient for the client).

2) If you have been convicted of a misdemeanor, you are required to report the conviction within 30 days after the conviction.

3) If you are arrested on a felony charge in state court, you do not need to report the charge until after a preliminary hearing has been held (or you agree to waive preliminary hearing) and you are held to answer on an "Information."

4) If you are arrested on a felony charge in federal court after being Indicted, you are required to report the charge within 30 days after the Indictment is filed. If you have agreed to a plea agreement in federal court that involves an "Information" you are required to report within 30 days after the filing of that Information.

Case Study - Felony Charge in State Court: Given the reporting requirements for felony convictions, we seek to be creative while at the same time minimizing the risk to our client's license. For example, in a couple of recent Medi-Cal fraud case where there was billing for services not provided or billing for non-FDA approved devices, we were able to have corporations (rather than the individual physician) plea guilty to the offense before the filing of an Information to avoid physician conviction reporting requirements.

4) If you are convicted on a felony charge in state or federal court, you are required to report the conviction within 30 days after the conviction.

5) If you have not followed the reporting requirements, you will need to report when you renew your license. Remember that even if your conviction has been expunged, you will need to answer "yes" that you have been convicted of a misdemeanor or felony.

I have seen numerous cases where licensees answered "no" to the conviction question for misdemeanors and the "no" answer caused more problems than the "yes" answer would have done in the first place. We work with physicians and licensed professionals to help them answer "yes" and submit a package in the beginning to minimize the damage that can result from a conviction. I cannot repeat enough that these cases need to be handled properly from the beginning. Most of the hard cases we have are where professionals tried to handle it themselves and made a bigger mess of the matter before they hired counsel. Often a lot of damage has been done by that point. Even a two hour consultation can prevent a professional from making a mistake that will ultimately cost them tens of thousands of dollars in lost income.

6) Are there times when physicians do not self-report? What happens then? We have had cases where physicians (or other professionals) know they are going to lose their license due to the conviction and are seeking to work as long as they can before they lose the license. They seek to delay out the process and in those cases, we respect their decisions but advise them of the risks and consequences. We also seek to help them with the damage control since there are many times when even a felony conviction will result in probation, some suspension time but they will be able to keep their license in the long run. Once reporting or discovery of the conviction occurs, we handle the reporting and Board defense. We respect our client's decisions but will push them if we believe a mistake is going to be made that will hurt them in the long run.

Big Picture Analysis - Seek Professional Advice & Remember That When You Must Disclose, Honesty Is The Hallmark of Professionalism: One reason it is often a good idea to at least obtain a consultation with an attorney is that you may not be thinking clearly and you need to see the big picture and what is going to occur in your case over the next few years. Short-term or rash actions can harm you in the future. If you have been convicted of an offense, it is a matter of time before the Board is aware of your conviction and you want to show that you are an honest professional. Dishonesty regarding your offense can harm you and be used as evidence that you are not rehabilitated.

One of the reasons you must be careful is that all the professions (whether physicians, nurses, attorneys, accountants) require a level of honesty that others rely upon. Thus, from the Board's perspective, if you are perceived as dishonest or not forthcoming it makes the Board believe you cannot be trusted and cannot be rehabilitated. Now does this mean that you have to report when not required? No, but if and when you do report, you must be hypervigilent. The old saw that "good beginnings make good endings" is very true here.

Written Explanations Should Be Reviewed By An Experienced Attorney: In addition, you will be asked to provide a written explanation or be interviewed at some point about the offense and you need an objective third party to assist you so that you position yourself for the imposition of the least amount of discipline possible. Do not send your written explanation without an experienced attorney reviewing your explanation and submission.

This is an important early step and mistakes made here can harm your Board case. So often I see that professionals get defensive, are worried about the impact of the conviction and write in a manner that will hurt them. By rewriting their letters and submitting a lot of evidence regarding rehabilitation at the same time (letters of support and proof of rehabilitation) it can make a huge difference on how the case is handled from the beginning.

For Non-Physicians: If you are a licensed professional other than a physician, you need to research the rules applicable to your Board or Bureau since each agency's rules are somewhat different. The one consistency is that do not misrepresent any fact in your reporting since that can be a separate ground for discipline. However, the same principles and thinking apply to everyone here. Some boards do not have a form for reporting while others do. Contact an attorney for advice or at a minimum research the website for your applicable licensing agency or call the agency to find out the applicable rules.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California board attorney, administrative attorney, and California Medical Board attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

Physicians, Chiropractors & Pharmacists in Workers' Compensation Should Be Aware Of Proposed Restrictions On Compounded Drugs In California

2011-01-04T11:06:00.000-08:00

Physicians, chiropractors and pharmacies who provide treatment and prescriptions to workers' compensation applicants in California, should be aware of new proposed legislation by state Sen. Mark DeSaulnier and Assemblyman Jose Solorio which would limit prices of medically necessary compounded drugs by adding them to the government's fee schedule.

The Los Angeles Times article noted that "Critics of the use of compounded drugs point to a sharp rise in the bills submitted to the State Compensation Insurance Fund, the state's biggest workers' comp insurer. Billings for compounded drugs reached $28 million, or 24% of the fund's total prescription billings last year — from a number so low the previous year that State Fund didn't bother to track it." Rand Corporation is compiling a study on this issue.

An effort last year to discourage the use of compounded drugs — especially those concocted by pharmacists, given by doctors to their patients and billed to insurers — failed to get through the state Legislature. Doctors were among those lobbying against it.

One of the focal points of this bill will be the third party pharmacies that are involved in providing the compounds to the physicians and chiropractors and billing the workers' compensation carriers. According to the L.A. Times article there are concerns about medical necessity and "[s]uspicions of abuse have been fueled by advertisements for compounded drugs on Craigslist two years ago that offered 'doctors who see work comp patients … $20K a month dispensing meds.'" The ad supposedly said: "There are no legal issues, no billing — we do the billing, no costs or risks to the doctor," the ads said. "We have over 400 doctors in California." The ads further stated that "we have a great product an Anti-Inflammatory Cream that's compounded and has spectacular results" and that doctors could make a $141.60 profit on every prescription.

The L.A. Times article discussed one leading compounding pharmacist Robert Nickell, president of HNP Pharmaceuticals in Torrance. According to the article, Nickell and HNP have been part of a network of dozens of related pharmacies and third-party medical billing companies, many registered at the same Torrance address as HNP.

Happy New Year!

2010-12-31T15:31:00.000-08:00

Wishing all of you a very happy 2011 with lots of new opportunities!

Posted by Tracy Green

L.A. Times Article On Illinois Physician Program For Sexual Misconduct Treatment Comes Under Attack. What Do We Do In California For Licensees With Substance Abuse And Sexual Boundary Issues?

2010-12-29T06:48:00.000-08:00

In California, if there is a complaint made about a physician that alleges any type of "sexual misconduct," the California Medical Board handles those cases with a presumption that the physician is guilty until proven innocent. The incendiary nature of such an allegation makes it difficult for the Board to refuse to file unproven allegations and often physicians are forced into disciplinary hearings since the Board is reluctant to dismiss weak charges on its own.

The Los Angeles Times ran an article on December 29, 2010 entitled "Doctor misconduct cases monitored in secrecy" regarding a program in Illinois. The article writes about criticisms of the Illinois Professionals Health Program which operates a diversion program for physicians involving alcohol and drug abuse and now sexual misconduct allegations. The article quotes certain opinions that such programs shield physicians and that patients should know about these allegations.

California Does Not Have A Diversion Program
In California, physicians have not been eligible for diversion in lieu of discipline where there are substance abuse allegations since 2008. California does not have any program for the diversion or monitoring of physicians with sexual misconduct allegations where there is also no discipline filed against the physician.

Physicians Can Enroll In Treatment Programs Confidentially Before Disciplinary Charges Are Filed
In California, if a physician has a substance abuse or sexual boundary issue, he or she is free to participate in any treatment program on their own which will remain completely confidential. There is no duty to report the enrollment to the Medical Board. However, if the Board received a complaint that the physician has a substance abuse or sexual boundary problem, the Board investigates the matter to determine if sufficient evidence is found to proceed to disciplinary action.

Most Disciplinary Charges Arising From Substance Abuse Arise From Arrests And Convictions
In our practice, we see most discipline filings relating to substance abuse arising from misdemeanor convictions (such as driving under the influence or wet reckless) and felony arrests and convictions. Physicians (and other health care providers) are required upon renewal to disclose their misdemeanor and felony convictions.

As for arrests, physicians are not required to report a misdemeanor arrest but as for a felony arrest, they must report a felony indictment or a felony information (meaning that in a state criminal case the case has gone through preliminary hearing and the physician has been held to answer). This means that if a doctor in California is arrested on felony charges, he or she does not need to report until held to answer after a preliminary hearing and an "Information" is filed. We have had cases where a physician was arrested on felony charges and we were able to have the charges dismissed before or at preliminary hearing which did not trigger any self-reporting requirements. Failure to report can be an additional ground for discipline.

Even though self-reporting is not required in felony cases until the Information is filed after a preliminary hearing, there is the risk that the city attorney or deputy district attorneys' office could notify the Board. Prosecutors in criminal cases are required to notify the Medical Board (and Chiropractic, Osteopathic, Podiatric and "other allied health board") of any felony filings against a licensee upon obtaining information that the defendant is a licensee of that board. California Business and Profession Code Sections 803.1. Thus, licensee must always be prepared for Board scrutiny where there has been an arrest.

Reporting also occurs since court clerks are required to report misdemeanor and felony convictions of any persons licensed by the Medical Board and other Boards (Chiropractic, Dental, Osteopathic, Acupuncture, Nursing, Vocational Nursing, Optometry, Veterinary, Pharmacy, Speech-Audiology, Hearing Aid Dispensers, Respiratory Care, Behavioral Science). California Business and Profession Code Sections 803.1 and 803.5.

Conclusion
Physicians and other licensees can expect that in California, disciplinary charges will be filed in lieu of any type of diversion program. Even where diversion programs exist (such as in nursing), the trend is to file disciplinary charges, place the licensee on probation and then require diversion. The Boards are very attuned to the political climate that they not be perceived as protecting physicians or other licensees and that the process be open to the public.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care attorney, administrative attorney, and California Medical Board attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

California Court of Appeal Allows Dentist To Sue Writers Of Negative Yelp Review For Libel

2010-12-28T11:11:00.000-08:00

A common question we receive from our professional clients such as doctors and health care providers is what they can do when there is a negative review online -- whether it be Google, Yelp or other websites.

Often common sense applies, contacting the patient or customer, offering to address the issue or solve the problem, posting a response on the website outlining those attempts, and other tactics that will not alienate the readers of these sites.

Suing the Internet host is not an option under the facts of most cases since the federal communications Decency Act immunizes Yelp and other Internet sites from libel lawsuits stemming from user comments.

A recent case in California upheld dentist Yvonne Wong's right to sue the man who posted a negative review on Yelp for libel and his wife. The Court held in Wong v. Jing that the lower court properly dismissed claims for intentional and negligent infliction of emotional distress filed by Dr. Wong.

Dr. Wong alleged that she properly advised the couple, prior to filling their son’s cavity in 2006, that she would use a silver amalgam filling containing mercury, and that she examined the child again in 2008 and found more cavities. But after consulting another dentist, she alleged, the couple published “slanderous complaints” on Yelp.com and other websites, false claiming that she did not tell them about the mercury, misdiagnosed the son’s case, and improperly used a general anesthetic.

Dr. Wong alleged the couple knew those claims were false. The Yelp review, a copy of which was attached to the complaint, suggesting that Wong should be avoided “like a disease;” that she worked “really fast” and caused the son to be “light headed for several hours;” that the new dentist discovered seven cavities; that Wong used laughing gas, “which was the cause of my son’s dizziness” and “harms a kid’s nerve system” and that she used “silver amalgams” containing a trace of mercury.

As for Dr. Wong's defamation claim, the Court held that the dentist showed a prima facie case based on her sworn statements that she disclosed that the amalgam contained mercury, that she properly diagnosed the case, and that she did not use a general anesthetic or otherwise engage in unprofessional conduct, all contrary to Jing’s assertions.

With respect to the emotional distress claims, however, the Court of Appeal upheld their dismissal. The Opinion stated that Jing’s statements, he said, fall short of the “high bar” that California sets on such claims, and could not have caused Dr. Wong to suffer “severe, lasting, or enduring” mental harm.

Attorney Notes: What happens now to this case? It gets sent back to the Santa Clara Superior Court and discovery and litigation proceeds. Litigation is one tool that a professional or business owner can use with respect to reviews that rise to the level of libel. However, filing a lawsuit and going through the extensive motion and appeal process which happened in this case can be costly.

We have guided clients through this process since licensed professionals need to act cautiously since disputes with patients or clients can lead to Board complaints. Anything that is written or spoken to a client or patient needs to be viewed through that lens. An analysis of the cost benefit analysis is also helpful. The Internet has turned everyone into a potential instant critic.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation or to discuss this post. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

The firm focuses its practice on the representation of licensed professionals (including dentists), individuals and businesses in civil, business, administrative and criminal proceedings. Our website is: http://www.greenassoc.com/

Woman Sentenced To 10 Years In Los Angeles Welfare Fraud Case With Alleged $1.3 Million Loss

2010-12-26T10:41:00.000-08:00

In a state welfare fraud case that has been pending in Los Angeles County Superior Court for 3 years, Sakina Myles (aka Sakina Johnson), was sentenced to 10 years in state prison on December 20, 2010. Ms. Myles was also ordered to make full restitution to the agencies in the amount of $1.3 million by Los Angeles Superior Court Judge William Pounders in Case No. BA317830.

Ms. Myles sentencing came after a no contest guilty plea to 12 counts of grand theft and 27 counts of perjury in two separate cases. At the sentencing, Judge Pounders said he "was shocked by the monstrous greed" demonstrated by her. The agencies who were alleged victims are: DPSS, Crystal Stairs, Drew Child Development Corporation, and the Center for Community and Family Services.

Ms. Myles was accused of leading a ring of 19 people who falsely supplied employment records and billed state and federal agencies for childcare services never rendered. The complex child care fraud scheme allegedly operated for almost 6 1/2 years, from June 2000 through October 2006. Ms. Myles allegedly claimed to operate the Johnson Family Daycare center at 438 E. 140th St. in Los Angeles, even though government authorities said records show she stopped providing childcare at that location in April 2002. However, she allegedly continued receiving government funding even though she no longer provided childcare services. As part of the charges, she also allegedly provided phony employment records so 14 parents could qualify for childcare payments from the government’s welfare-to-work program.

Attorney Comments: The sentences continue to get longer in state court cases even where there is a plea agreement. It does not appear that Ms. Myles had a prior criminal record. However, the length of the sentence appears to indicate that there was no or little payment of restitution prior to the sentencing. In fraud cases, restitution is important to the prosecutors and the victims. Thus, successful mitigation of these cases focuses significantly on restitution.

Restitution is made by the judge and does not consider ability to pay. Where restitution is not possible due to financial reasons, it is important to show that all efforts have been made to pay something even if the amount is overwhelmingly large. Many clients find it difficult to pay the $250 a month even if the loss is in the million dollar range but they do not understand that it is important to pay what you can. I encourage clients to take second jobs devoted solely to restitution, selling assets, holding yard sales and showing the efforts to pay restitution. This is part of taking responsibility where there has been a plea agreement. The more creative I can be in showing that my client is working harder than anyone else -- the easier it is to obtain a fairer sentence.

Years ago, the state Department of Corrections had a restitution center halfway house program, but that program has been eliminated. To the extent we can create our own program where there will be a greater likelihood of restitution payment, we can present that as an alternative to state prison. It requires, however, a significant commitment by the client and depends on the assets available and whether there is a realistic ability to earn restitution instead of state prison. Every case is different and depends on the amount of the loss, the sentencing judge, the prosecutors on the case and the individual's past history.

Posted by Tracy Green, Esq. Any questions regarding your own situation should be directed to Tracy Green, a very experienced welfare fraud attorney and white collar crime attorney. You can email her at tgreen@greenassoc.com or call her at 213-233-2261. Green and Associates is located at

801 South Figueroa Street #1200, Los Angeles, CA 90017.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing individuals and small businesses in fraud and overbilling allegations in California and throughout the country. Their website is: http://www.greenassoc.com/

Medical and Physician Marketing: Los Angeles Times Article On "Scrutiny Of Lap Band Enterprise Is Overdue"

2010-12-20T10:24:00.000-08:00

On March 4, 2010, I posted an article regarding the Los Angeles Times' articles on Top Surgeons' marketing of lap bands entitled "L.A. Times Article On Lap Band Surgery Centers: What Other Legal And Consumer Issues Are Raised Here?"

The Los Angeles Times recently wrote another article on December 19, 2010 stating that "Scrutiny of Lap Band Enterprise Is Overdue."

According to the L.A. Times, the 1-800-GET-THIN billboards which pepper the Los Angeles and Orange County freeways have caught the attention of the Los Angeles County Department of Public Health and it has asked the U.S. Food and Drug Administration to investigate the ad campaign. Here is a link of the letter that was sent to the FDA.

The referral to the FDA was probably made since the Medical Board does not have jurisdiction over advertising by non-physicians and there were some issues over who has jurisdiction over the surgery centers operated by non-physicians. The success of this type of marketing to patients comes with its pitfalls and level of scrutiny.

For health care providers, this article is a reminder that they need to ensure that their advertising and referral arrangements with surgery centers and companies that advertise (on the Internet and elsewhere) comply with California and federal laws prohibiting false advertising and the giving of any consideration (money or other things of value) for the referral of a patient.

Should you have any questions regarding your own situation or this post, you can email physician attorney Tracy Green at tgreen@greenassoc.com. Green and Associates is located in downtown Los Angeles, California and focuses their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a long-standing specialty in representing health care providers. Ms. Green is presently a member of the Board of Directors of the California Naturopathic Doctors Association. The firm website is: http://www.greenassoc.com/

Elderly New York Doctor Arrested On Charges Of Distributing Painkillers

2010-12-09T06:53:00.000-08:00

The DEA is taking an active stance across the country on physicians who prescribe painkillers to patients without medical necessity. On November 16, 2010, Dr. Felix Lanting, age 83, was arrested on a charge of conspiracy to distribute oxycodone in Grant City, New York. At the time he was arrested, the federal agents also conducted a search warrant. Charges were filed in the Eastern District of New York.

Dr. Lanting garnered some unwanted attention when he was interviewed in August 2010 by the press for a story on a state-run database of patients who have had prescriptions filled from multiple sources.
Of his approach with dealing with patients seeking prescriptions, he said: "We take their word and we depend on the pharmacists' computers."

Obviously, that quote is not the standard for physicians in today's world. Although Dr. Lanting may have been quoted out of context, this was not a great quote for public viewing. We can expect to see an increase in filings against physicians for subscribing painkillers.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, prescription fraud attorney, California DEA lawyer, and California Medical Board attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

Tracy Green Interviewed On NPR Station On "Use Of Unappoved Birth Control Devices Common In U.S." National Issues With Physicians Using IUDs Manufactured In Other Countries.

2010-11-13T07:02:00.000-08:00

Tracy Green was interviewed by radio station WRNI (Rhode Island's NPR Station) in a program entitled "Use Of Unappoved Birth Control Devices Common In U.S."

This is a program on OB-GYNs using IUDs from Canada. In the U.S. only IUDs from two companies are "FDA approved" even if the IUD is the same as ones purchased from other countries.

In the article and program, Green was quoted as follows:

"They just thought, wow, this is a great deal," said lawyer Tracy Green. " Don't be a knucklehead and over pay." Green practices in Los Angeles, and she represented five doctors who did the same thing three years ago in California. She says the practice was pretty widespread.

"One of my doctors, it was another OBGYN who called him and said, Boy, my office, we found a great price.' And you know, they're all board certified OB-GYNs," Green said. "They just thought this was a great deal."

Green says the IUDs appeared to be identical to the ones the doctors usually prescribed. They even had the same packaging. The lawyer representing the Rhode Island doctors who bought the UN-approved IUDs declined to speak on tape for this story, but he's argued the same thing: There was nothing different about these devices; they were just cheaper because they came from Canada.

Attorney Commentary: I have represented numerous physicians on this particular issue in California over the past three years. The issue for physicians who bill Medicare or Medicaid (Medi-Cal) for non-FDA approved devices is that they cannot bill the programs and will be liable for repaying any claims submitted. Whether a case proceeds to criminal prosecution will depend on whether there was criminal intent and if the physician knew it was a non-FDA approved device. It has been my experience that often the physicians are not buying the supplies, the non-FDA supplies were sold by pharmacies or other supply companies, and that just because the price was lower does not trigger a suspicion that it is non-FDA approved.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California FDA attorney, Medical Board attorney, Medi-Cal fraud attorney and physician attorney at tgreen@greenassoc.com.

Two Los Angeles Rookie Police Officers Charged With Auto Insurance Fraud

2010-11-07T11:25:00.000-08:00

A Los Angeles police officer accused of making arrangements for his vehicle to be set ablaze and a fellow officer were charged on October 18, 2010 with automobile insurance fraud. The Los Angeles County District Attorney's Office, Auto Insurance Fraud Division, filed the complaint in Los Angeles County Superior Court, Case No. BA376806. California Department of Insurance is the investigating agency.

Anthony Robert Villanueva, 24, is charged with one count each of insurance fraud, arson of one’s own property and false report of a criminal offense. Co-defendant Ricardo Rebolledo, 27, faces one count of insurance fraud. Both defendants are presumed innocent and a criminal complaint is not evidence.

Prosecutors allege that in April 2010, Mr. Villanueva arranged for his 2001 Lexus sedan to be taken to the desert and set on fire, resulting in a total loss. Mr. Villanueva then purportedly filed a stolen vehicle report with the Los Angeles Police Department (LAPD) and submitted a claim for damages to his automobile insurance company.

Co-defendant Mr. Rebolledo allegedly provided a fraudulent statement to Mr. Villanueva’s insurance company in support of the claim vouching for his friend’s whereabouts on the day of the supposed vehicle theft.Each defendant has been employed by the LAPD since September 2009. The recommended bail for Mr. Villanueva was $75,000 and $25,000 for Rebolledo.

If convicted as charged, Mr. Villanueva faces a maximum state prison term of six years, two months and a fine of up to $50,000. Mr. Rebolledo faces a maximum term of five years in state prison.

Attorney Commentary: Although it is surprising to see two police officers charged with such an offense, they are young and were officers for less than a year before the alleged offense was committed. The speed with which this case was investigated and charged was unusual (6 months) especially in a fraud case. The case may have been expedited due to the suspects being police officers. A case like this will be harmful in more ways than one since both men will face investigation and potential disciplinary charges from LAPD due to the filing of this case.

Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing individuals and companies in fraud investigations and federal and state cases, including auto insurance fraud. Their website is: http://www.greenassoc.com/

Two Los Angeles Physicians, Alleged Clinic Owner And Four Clinic Workers Arrested For Performing Unnecessary Tests And Illegal Referral Fees

2010-11-01T06:15:00.000-07:00

On October 30, 2010, seven people (including two physicians) were arrested and charged with seven counts relating to the operation of a medical clinic in North Hollywood. The criminal counts charged were: conspiracy, making fraudulent claims for healthcare benefits, making illegal referrals, and receiving illegal kickbacks.

This case is being prosecuted by the Los Angeles City Attorney's Office which makes it unusual since this office only has the jurisdiction to prosecute misdemeanors. However, the complaint seeks restitution to Medi-Cal and Medicare of $5 million. It is therefore clear that all prosecuting agencies are putting health care fraud as a priority.

The persons charged were: (1) two physicians, Dr. Eleanor Santiago Arthur and Dr. Rodney Stephen Barron, who were held on $500,000 bail; (2) the alleged owner of the clinic Artur Vic Manasarian who has also been charged in a federal health care fraud case; and (3) four individuals who worked at or on behalf of the clinic. All individuals are presumed innocent and a criminal complaint is not evidence or proof of guilt.

The allegations in the criminal complaint were that "cappers" recruited Medicare and Medi-Cal enrollees (including mentally ill homeless people) by paying them $100 each and drove them to and from the clinic. The government deemed it suspicious that some patients were recruited from Long Beach to go to the North Hollywood clinic. The clinic then allegedly performed unnecessary tests (such as abdominal ultrasounds) and other procedures at the North Hollywood clinic. This is the basis for the allegation that fraudulent bills were submitted to government insurance programs for seniors, the poor and the disabled.

One allegation was that in some instances, the patients' blood was drained into unsanitary, open containers and the clinic submitted the blood for tests under multiple patients' names so they could bill multiple times. After the visits, the cappers drove the patients back to where they picked them up. The City Attorney alleges that the clinic billed the government for up to $1,000 worth of medical care per patient, and each physician saw 30 to 50 patients a day.

Attorney Commentary: These cases are not usually prosecuted by the City Attorney's Office since a misdemeanor count has a maximum of a one year sentence. However, the City Attorney's Office contends that if any of the charged individuals are convicted of all seven counts, the counts would be consecutive and they could face up to seven years in prison. This is one way for the City Attorney's Office to make misdemeanor counts serious for those charged with healthcare fraud and illegal kickbacks.

The City Attorney alleges that "owner" of the clinic is a non-physician indicating that there is the issue of the corporate practice of medicine in this case and it would not be surprising if there were allegations that the clinic was in control of the billing in this case. However, since only physicians can bill and receive payment from Medicare and Medi-Cal in California, the billing would have been in the names of the physicians and the City Attorney's Office will seek to hold them responsible even if they did not receive all the money received from Medicare and Medi-Cal.

Thus, the days where these physicians were treated as "victims" appears to be over and physicians who work at clinics where there is illegal marketing, kickbacks and unnecessary tests cannot stick their heads in the sand and act like an "employee" when the billing and ordering of tests is under their name. Physicians must be very careful where they work and it is our experience that physicians who are young, elderly or have problems (such as medical, psychological, alcohol/substance abuse, or legal) are targeted to work at these illegal clinics. Even if a physician has trouble getting employment or making a living, working at any clinic which does not follow the law will cause more problems for the physician in the long run. We often advise physicians to do due diligence and make sure that their license and UPIN number will not be jeopardized. The short term benefits are not worth it.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Los Angeles Patient Recruiter For L.A. Medical Clinics And DMEs Sentenced To 21 Months In Federal Prison By Judge Walter: Lesson On Due Diligence In Hiring Marketers For Your Practice

2010-10-28T09:54:00.000-07:00

A recent federal heath care fraud case alerts clinics as to how some marketers could be recruiting patients by paying those patients to go to clinics or receive DME. Before any marketer is hired, it is critical that the marketing methods be known. If a marketer pays for a patient to go to a clinic, all billing by that clinic to Medicare could be deemed a false claim. Physicians and medical providers cannot hide behind the marketer any longer and due diligence is required by the provider hiring the marketing company or individual.

In this case, James Roland Fuquay, 49, a patient recruiter who sold the personal information of Medicare beneficiaries from San Diego and Los Angeles to Los Angeles medical clinics and durable medical equipment (DME) companies was sentenced on October 26, 2010 to 21 months in prison by U.S. District Judge John F. Walter of the Central District of California. Mr. Fuquay was also ordered to pay $556,815 in restitution and serve three years of supervised release following his prison term.

The sentence follows Mr. Fuquay's guilty plea over a year ago (May 11, 2009) to conspiracy to commit health care fraud. According to court documents, Mr. Fuquay was a patient recruiter known as the “Red, White, and Blue Man,” which is a reference to the colors on a Medicare card. Mr. Fuquay admitted to recruiting Medicare beneficiaries from homeless shelters in San Diego and Los Angeles using the sales pitch, “Red, white, and blue. Let’s make it do what it do.”

Mr. Fuquay then paid the beneficiaries to go with him to fraudulent medical clinics and DME supply companies to receive medical services, power wheelchairs, hospital beds and other medical equipment the beneficiaries did not want, need or receive. Mr. Fuquay’s network of Medicare beneficiaries and fraudulent DME supply companies was large enough for him to make approximately $220,000 in illegal recruiter fees.

According to court documents, one of the fraudulent DME supply companies that paid Mr. Fuquay to recruit beneficiaries was Airport Medical Supply, whose owner, Eli Gichon, pleaded guilty on Sept. 1, 2010, to health care fraud and tax charges. According to court documents, Airport Medical Supply operated out of a dry cleaning business where Gichon directed Mr. Fuquay and others to bring beneficiaries so that Gichon could take pictures of them sitting in power wheelchairs or standing next to empty hospital bed boxes. Gichon used these pictures to try to fraudulently prove to Medicare inspectors that he had in fact provided the beneficiaries with power wheelchairs and hospital beds. Gichon’s sentencing is scheduled for Jan. 10, 2011.

Mental Health Community Clinic & Its Owners/Managers Indicted In Miami For Paying Kickbacks To Assisted Living Facilities & Halfway Houses And For Admitting Ineligible Patients To Partial Hospitalization Programs

2010-10-25T06:58:00.000-07:00

On October 21, 2010, the Departments of Justice and Health and Human Services (HHS) announced that two Miami health care companies who provide mental health care services and four owners and senior managers of the companies were indicted in the Southern District of Florida.

At the time the indictment was unsealed, a related civil action was unsealed and a temporary restraining order was obtained to freeze the assets of the indicted companies and individuals. It is becoming more common for criminal indictments to be accompanied by civil actions to seize the assets of Medicare providers and their owners and managers. The government is concerned about recovering restitution for the Medicare program.

A 13-count indictment unsealed in U.S. District Court charges American Therapeutic Corporation (ATC) and Medlink Professional Management Group Inc. (Medlink), as well as Lawrence S. Duran, Marianella Valera, Judith Negron and Margarita Acevedo, aka Margarita De La Cruz, with one count of conspiracy to commit health care fraud.

Please note: An indictment contains allegations that a defendant has commtited a crime. Every defendant is presumed innocent until and unless proven guilty.

ATC, Mr. Duran and Ms. Valera were also charged with 11 counts of health care fraud. ATC, Mr. Duran, Ms. Valera and Ms. Acevedo are charged with one count of conspiracy to defraud the United States, to receive health care kickbacks and to pay health care kickbacks. The individuals were all arrested in Miami and federal agents served search warrants at six ATC and Medlink locations on the date of the arrests.

The government argued at the detention hearing that Mr. Duran and Ms.Valera are romantically involved and that they should be held in custody pending trial on the ground that they are a flight risk. The government pointed to their international travels and alleged expensive lifestyle including luxury cars and other goods allegedly purchased with proceeds from the companies.

In a separate action, a civil complaint for injunctive relief was unsealed and a temporary restraining order was obtained to freeze the assets of Mr. Duran, Ms. Valera, Ms. Negron, Ms. Acevedo, ATC and Medlink. This will likely make it difficult for the individuals and corporations to use their assets to defend themselves and retain private counsel although there are ways in which counsel can move the court and the U.S. Attorney's Office for funds for their criminal defense.

According to the criminal and civil court documents, it is alleged that there was a scheme to defraud the Medicare program by submitting false claims for mental health services administered at ATC facilities that were medically unnecessary or were not provided. ATC, headquartered in Miami, operated purported partial hospitalization programs (PHPs) in seven different locations throughout Florida, from Homestead to Orlando. A PHP is a form of intensive treatment for mental illness.

Court documents allege that Mr. Duran, Ms. Valera, Ms. Acevedo and ATC paid kickbacks to owners and operators of assisted living facilities (ALFs) and halfway houses in exchange for the ALFs and halfway houses delivering patients from their facilities to ATC. According to the indictment, in many instances, the patients received a portion of the kickbacks from the owners and operators of the ALFs and halfway houses.

ATC allegedly billed Medicare for services purportedly provided to these recruited patients. According the indictment, the services were not medically necessary or were not provided at all. According to the civil complaint, ATC routinely admitted patients to the PHP program who suffered from Alzheimer’s and severe dementia and therefore were not eligible for the PHP program because their mental capacity did not allow them to benefit from group therapy.

Court documents allege that patient charts and notes from therapy sessions were routinely altered at ATC in order to make it appear that the patients being treated at ATC qualified for PHP treatments when, in fact, they did not. According to the indictment, Mr. Duran and Ms. Valera allegedly instructed employees and doctors at ATC to alter diagnoses and medication types and levels to falsely make it appear that the patients qualified for PHP treatments. Court documents also allege that Ms. Valera manipulated the length of patients’ stays in order to maximize the number of days Medicare would pay for the PHP services.

The civil complaint and temporary restraining order also name American Sleep Institute Inc. (ASI) and D and V Development Inc., as participants in the health care fraud. Civil court documents allege that ASI was owned and operated by Ms. Valera and Mr. Duran and that ASI submitted false claims to the Medicare program for sleep studies. According to the civil complaint, D and V Development was owned and operated by Ms. Valera and Mr. Duran and was established in an effort to divert funds received by ATC and ASI.

Attorney Commentary: We can expect to see an increase in the number of health care fraud indictments filed in the various federal districts in the U.S. Significant resources are being expended and these cases are a priority in the Justice Department. This case does not mention the fact that the individual defendants are of Cuban heritage but in Miami a number of the health care fraud cases filed have involved those of Cuban ethnicity. In each of the major U.S. cities, Medicare fraud is more preeminent among the ethnic communities. The allegations in this particular case also allege that the patients received kickbacks. In order to combat the fraud, the patients need to be educated and face some consequences if they allow their Medicare card to be used for fraud or agree to receive payment for medical services.

The alteration of patient record allegations are important in that such evidence is used to show "criminal intent" in that the defendants "knew" that there was no medical necessity and ordered the charts to be altered in order to establish the need and basis for payment. The owners of the clinic would normally be expected to argue that the doctors saw the patients and determined medical necessity. If there is credible evidence of ordering doctors and other staff to alter the charts, this could effect this particular defense.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Attorney Tracy Green Quoted By San Diego Union-Tribune On Medical Board Investigation Of Doctor For San Diego Chargers

2010-10-22T09:23:00.000-07:00

Attorney Tracy Green was quoted in a December 19, 2009 article in the San Diego Union-Tribune about the longtime doctor for the San Diego Chargers entitled "Complaint Filed Against Chargers Doctor." Ms. Green was interviewed about the Medical Board investigation into Dr. Chao. Ms. Green was quoted as follows:

“All the boards are on high alert because of the scrutiny that’s been placed on the nursing board,” said Tracy Green, an attorney with expertise representing professionals in health care. “They are getting alert to anything with drugs or alcohol or any convictions. The boards are being more aggressive than they used to be.”

Green is not involved in this case but said she doubted it would result in serious punishment. She said the board’s intent is to “look at it and see if he has an alcohol problem.”

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Operation “Diagnosis Dollars” -- 10 Individuals Indicted In Los Angeles & 28 Charged In New York Indictment - Allegations Of Medicare Fraud Where Services Never Provided At Phony Clinics & Armenian Organized Crime

2010-10-13T19:48:00.000-07:00

L.A Times Photo

The Los Angeles Times and New York Times (44 Charged In Huge Medicare Fraud Scheme) reported on a number of federal criminal indictments in New York, Los Angeles, New Mexico, Cleveland and Atlanta arising from an alleged scheme to defraud Medicare allegedly involving phony clinics, no patients (just Medicare cards), and physician identity theft. The above-referenced New York Times article has a copy of the Southern District New York Indictment embedded in it in which there were 28 defendants (including some from Los Angeles). The New York Indictment included RICO crime charges involving alleged Armenian organized crime. This nationwide investigation was called Operation “Diagnosis Dollars.”

Three Los Angeles Indictments. According to the indictments returned under seal by a federal grand jury in Los Angeles on October 7, the defendants (many of whom are related) played roles in the operation of at least eight fraudulent medical clinics and sought reimbursement from the Medicare health care benefit program for services that were never delivered to patients with coverage under that program, The defendants are also charged with laundering the money derived from the fraudulent scheme. In addition, 12 search warrants were executed in Los Angeles to seek evidence.

The Los Angeles indictments alleges crimes including Conspiracy to Commit Bank Fraud; Conspiracy to Launder Monetary Instruments; Money Laundering; Bank Fraud; Aggravated Identity Theft; and Criminal Forfeiture. The defendants charged in three separate Los Angeles indictments unsealed this morning are:
Pogos Satamyan, of Glendale
Vachagan Dishchian, 34, of Van Nuys
Vahe Dischian, 36, of Van Nuys
Andranik Satamyan, 20, of Glendale
Haroutyoun Dischian, 62, of Van Nuys
Nicolae Candu, 24 (not arrested or surrendered yet)
Vitalina Shcherbyak, 24 (not arrested or surrendered yet)
Nikolay Agishev, 24 (not arrested or surrendered yet)
Grisha Sayadyan, 59, of Glendale
Allen Sayadyan, 30, of Glendale

According to the main eight-defendant indictment, the scheme worked in the following way: individuals would obtain the stolen identities of physicians to enroll as providers in the Medicare program, which requires a medical doctor's name, Social Security number and date of birth. Using the stolen physician identities, applications to become providers were submitted applications to Medicare. The defendants would then open clinics by leasing office space or by renting a post office box. Other defendants would then open fraudulent bank accounts into which Medicare could transfer fraudulent claims. These bank accounts were opened in either the name of the physician whose identity had been stolen, a business, or in the name of a co-conspirator.

Once the application was approved and the Medicare provider account was opened, the defendants allegedly began to bill Medicare utilizing stolen beneficiary identifications. In reality, the Medicare beneficiaries were never seen or treated.

Medicare would then pay the fraudulent claims and transmit the funds directly into the fraudulent bank accounts. As the Medicare funds were received, they were withdrawn immediately and laundered. Some of the defendants laundered the funds by forging signatures of the alleged account holder, and then delivered the signed checks to a third party, who was actually a confidential informant working for the FBI. The confidential informant would then cash the checks and return the proceeds in cash to the defendants, less a fee.
Eight fraudulent clinics are specifically identified in the Los Angeles case, and investigators estimate the defendants submitted more than $17 million in fraudulent claims for which Medicare paid approximately $8 million.

Attorney Comments: In my experience, one way that physician identities are obtained for fraudulent billing is through advertisements for physician employees at clinics. Physicians must be very careful not to place their physician number, UPIN number, Social Security number or other identifying information on blind resumes or CVs sent in response to advertisements.If physicians do not guard this information, the fraudulent use of their information for billing can cause huge problems with Medicare that can take years to unwind including overpayment demands, tax issues and related problems.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced Medicare fraud attorney and health care fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Attorney Tracy Green quoted in L.A. Times Article: "Medical workers in California were allowed to keep practicing despite failing drug, alcohol tests"

2010-10-09T14:45:00.000-07:00

Attorney Tracy Green was quoted in the Los Angeles Times on October 8, 2010 regarding the errors by Maximus in administering drug and alcohol tests to nurses in California diversion program. The article can be found at:

Medical workers in California were allowed to keep practicing despite failing drug, alcohol tests - latimes.com

Los Angeles Medical Equipment Supplier Sentenced to 46 Months in Prison for Role in Billing Power Wheelchairs to Medicare

2010-10-09T09:39:00.000-07:00

Another sentence has been imposed in the power wheelchair Medicare fraud cases. On October 4, 2010, Sylvester Ijewere, 49, the owner and operator of Los Angeles durable medical equipment (DME) company Maydads Medical Supply, was sentenced to 46 months in prison by U.S. District Judge Dale S. Fischer of the Central District of California. Mr. Ijewere was also ordered to pay $211,755 in restitution. In addition, Mr. Ijewere was ordered to serve three years of supervised release following his prison term.

This sentence came after a guilty plea. Mr. Ijewere pleaded guilty on April 12, 2010, to health care fraud. Mr. Ijewere admitted that between June 2007 and October 2009, he conspired with others to purchase fraudulent prescriptions and medical documents which he used to submit false claims to Medicare for expensive, high-end power wheelchairs, and other DME.

Mr. Ijewere's company received approximately $4,000 in reimbursement payments for each power wheelchair claim he submitted to Medicare. Approximately 50 percent of the Medicare beneficiaries to whom Mr. Ijewere claimed Maydads had supplied power wheelchairs and other equipment lived more than 100 miles from Maydads’ Los Angeles-area offices in Central and Northern California. When patients are brought in from long distances it is a red flag to Medicare that there is patient marketing or fraudulent prescriptions.

Mr. Ijewere admitted in his plea that he submitted or caused the submission of approximately $471,345 in false and fraudulent claims to Medicare through Maydads.

Mr. Ijewere’s alleged co-conspirator, Donna Wells, a patient recruiter, was charged for her role in the scheme in October 2009, and is scheduled to begin trial on November 9, 2010.

Attorney Comments: In 1997, total billings to Medicare for power wheelchairs was $150 million. By 2003, this grew to $1.1 billion. The number has increased since 2003. In addition, there was an OIG study indicating that sixty percent (60%) of all prescriptions for power wheelchairs did not meet documentation requirements imposed by Medicare. Many of the current federal and state investigations commence with documentation issues that are triggered when the physician who writes the prescription has seen the patient only one or two times and when the patient resides more than 30 miles from the DME or physician.

In addition to documentation and medical necessity, there has been considerable concern raised about improper marketing of power wheelchairs. There were allegations that minority neighborhoods were targeted, using door-to-door solicitation, and that fully ambulatory older residents were offered kickbacks for participating and bounties for recruiting others. These individuals were then directed to specific physicians, some of whom also received kickbacks from the power wheelchair distributors. One factor contributing to the abuse was the large profit margin for suppliers of power wheelchairs. Medicare was paying more than $5,000 per power wheelchair claim in 2003, while the Veteran’s Administration paid closer to $3,000 per chair, which suggests that there was substantial profit in power wheelchairs reimbursed by Medicare.

The federal and state governments works on "projects." The power wheelchair is a longstanding project by federal and state authorities. The first phase of prosecutions targeted those DMEs where wheelchairs were not delivered or where there was identity theft of Medicare beneficiaries. The second phase is for those DMEs where there was illegal marketing and a lack of medical necessity. I expect to see more prosecutions in the Central District of California over the next two years.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Workers Comp Premium Insurance Fraud: Two Painting Contractors Sentenced To 6 Months' Jail And 3 Years' Probation After Paying Over $500,000 In Restitution In Ventura County

2010-10-03T19:31:00.000-07:00

On September 8, I posted an article about Two Painting Contractors Plead Guilty To Workers' Compensation Insurance Premium Fraud in Ventura County. Now for the follow-up post on their sentence.

At the time they plead they were not sentenced and had no firm agreement on sentencing from what I understand. There probably was a "lid" or cap on what the sentence would be with the judge to have discretion on the amount of jail time imposed.

Last week, the two painting contractors, Michael Nuciforo and James Nuciforo were sentenced to 36 months formal probation and ordered to serve 180 days in the Ventura County jail as a result of their convictions for felony workers' compensation premium fraud. Ventura County is known as a tough county in sentencing defendants. In order to obtain the 6 months' sentence (for which they will have to serve 3 months), Messrs. Nuciforo paid $517,433 in restitution before sentencing. In Los Angeles County, they may have received a different result showing that venue is important in your case. It also shows that payment of restitution is key to getting an excellent result.

In this case, the allegations were that Michael and James Nuciforo, owners of D and J Drywall Painting, Inc., in Newbury Park, lied to their workers' compensation insurance carriers over a period of nine years in order to lower their workers' compensation insurance premiums. The Nuciforos allegedly earned an extra $50,000 a year by underreporting their workers' compensation premiums.

Attorney Commentary: The government views this case and other premium workers' compensation fraud cases as indicative of an epidemic of workers' compensation premium fraud in California . A comprehensive study out of U.C. Berkeley by researchers Frank Neuhauser and Colleen Donovan indicated the losses caused by premium fraud in California during 2005 (the most recent year reflected in the study's statistics) were as much as $2.8 billion.

According to the study, this $2.8 billion loss translates to approximately $75 for every person in California per year. According to the study, insurance companies do not suffer a net loss; they simply pass on the losses to businesses in the form of higher workers' compensation premiums. The businesses, in turn, increase their costs of goods and services to the consumer. In the end, the belief is that the average citizen bears the brunt of this crime.

The other reason the government targets workers' compensation premium fraud is the belief that it creates an unlevel playing field for businesses, particularly contractors (where premiums are high). This occurs in the construction industry, garment industry, farm worker industry and any other industry where certain jobs are deemed "high risk." Contractors who improperly classify workers at lower premium rates or underreport their payroll are able to keep the money they would be using to pay premiums and then can underbid the competition. Honest employers are disadvantaged by having to pay even higher premiums than they otherwise would, and then lose jobs to the other company who pays lower workers' compensation premiums.

The workers' compensation carriers are conducting more audits and are now obtaining the records that the employers have filed with EDD (which previously were ruled confidential). Thus, there is now a greater likelihood of an audit and a criminal investigation. If your company has engaged in premium workers' compensation misrepresentations, it is better to address these issues early and amend prior submissions or ensure that future submissions comply with the law.

Any questions or comments should be directed to Tracy Green, a very experienced California workers compensation fraud attorney, workers compensation premium fraud attorney, and white collar criminal defense attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing professionals in fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

El Centro Regional Medical Center Settles Qui Tam Medicare Fraud Suit By Paying U.S. $2.2 Million and Entering Into A Corporate Integrity Agreement

2010-09-21T07:10:00.000-07:00

On September 20, 2010, the El Centro Regional Medical Center in Imperial County, California (near the Mexico border) agreed to pay the United States $2.2 million, plus interest, to settle allegations that it defrauded Medicare. El Centro is a nonprofit community based hospital owned by the city of El Centro. It was formed in 1956.

The United States has agreed to dismiss the lawsuit as a result of the settlement announced today. In addition, as a condition of continued participation in federal health care programs, the Office of Inspector General of the U.S. Department of Health and Human Services (OIG-HHS) has required El Centro Regional Medical Center to enter into a Corporate Integrity Agreement. The agreement subjects the hospital to strict policies and procedures to ensure future compliance with applicable statutes and regulations that govern the use of federal health care funds.

Smaller providers often do not get the opportunity to enter into Corporate Integrity Agreements but given the nonprofit status of this hospital and the fact that it has been around for 40 years, that probably made a difference. Smaller providers when faced with overpayments and fraud allegations, however, should work on creating their own compliance plans and present them to Medicare or Medi-Cal in order to show their commitment to following the rules and regulations.

The government alleges that the 165-bed acute care hospital fraudulently inflated its charges to Medicare patients to obtain larger reimbursements from the federal health care program. The settlement covers claims submitted by the hospital for short inpatient admissions, usually of one day or less, when the services should have been billed on an outpatient “observation” basis or as emergency room visits.

The allegations arise from a lawsuit that was brought under the qui tam, or whistleblower, provisions of the False Claims Act (FCA), which permit private citizens with knowledge of fraud against the government to bring an action on behalf of the United States and to share in any recovery. The whistleblower in this case, Pietro Ingrande, a former employee of El Centro Regional Medical Center, will receive $375,000 as his share of the recovery.

Attorney Commentary: The qui tam lawsuit shows the importance of having an operative compliance plan where employees are encouraged to report to the provider first before reporting to outside agencies. Exit interviews are also important to the process so former employees report any alleged wrongdoing that can be investigated by the provider to avoid qui tam lawsuits. I encourage providers to adopt the saying "there is no such thing as a bad fact, only something I do not know." If an employee believes there is improper billing -- even if unfounded -- it is better for the provider to know it and address it internally before there is outside reporting.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, qui tam defense attorney, California Medi-Cal lawyer, and California Medicare attorney at tgreen@greenassoc.com.

Miami-Area HIV Injection and Infusion Clinic Owner Pleads Guilty To Conspiracy to Commit Health Care Fraud - Sentencing Set For November

2010-09-20T13:39:00.000-07:00

In Florida, you do not need to be a physician to own a medical clinic. On September 9, 2010, non-physician clinic owner Flor Crisologo, 58, pleaded guilty before Magistrate Judge Barry L. Garber in U.S. District Court in Miami to one count of conspiracy to commit health care fraud. Ms. Crisologo owned and operated an HIV infusion clinic and was originally charged in a May 2010 indictment. This case involved kickbacks, medically unnecessary tests, and some tests that were not performed.

According to the plea documents, Ms. Crisologo was the owner and operator of J and F Community Medical Center Inc. Ms. Crisologo admitted that she submitted approximately $23 million in false and fraudulent claims to Medicare for HIV injection and infusion services purportedly provided through J and F. According to court documents, Ms. Crisologo hired a physician at J and F and conspired with the physician and others to order unnecessary tests, sign false medical analyses and diagnosis forms, and authorize treatments to make it appear that medical services were being provided to patients who were Medicare beneficiaries. The services included medically unnecessary injection and infusion therapies.

On the marketing and kickback side, Ms. Crisologo admitted that she and her conspirators paid Medicare beneficiaries kickbacks to induce the beneficiaries to claim they received legitimate services at the clinic when in fact the HIV infusion services were either not provided or were not medically necessary. The kickbacks make defense difficult in these cases since violation of the anti-kickback statute automatically makes a claim for a service that is provided a "false claim." The kickbacks also play into the medical necessity where the marketer encourages the beneficiary to falsely report symptoms in order to obtain services.

The maximum sentence for conspiracy to commit health care fraud is 10 years in prison. This is a high loss amount and unless there is significant cooperation, it is expected that the sentence could be lengthy. Ms. Crisologo also faces fines and forfeiture of any property or proceeds derived from the clinic. Sentencing is scheduled for November 23, 2010.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Physicians and Nine Others Indicted For Online Pharmacies & Charges Of Illegally Distributing Drugs In San Francisco Federal Court

2010-09-12T22:05:00.000-07:00

On September 1, 2010, a San Francisco federal grand jury indicted 11 defendants including one physician for participating in three separate but related conspiracies to distribute controlled substances outside the scope of professional medical practice. It is Case Number CR 10 - 0642 RS. The United States Drug Enforcement Agency issued a press release summarizing this multi-defendant case.

This indictment was obtained in connection with an international investigation of illegal Internet pharmacies that began in 2005. The investigation has resulted in the indictment of 37 federal defendants, the conviction of 26 individuals on federal criminal charges, and the dismantling of more than five Internet pharmacies. Please note: An indictment contains only allegations against an individual and, as with all defendants, the individuals listed in the government's press release must be presumed innocent unless and until proven guilty.

There are three related conspiracies in the Indictment. In the first alleged conspiracy, called the "Safescripts Online" conspiracy, eight individuals allegedly conspired to distribute in excess of $22.2 million worth of controlled substances outside the scope of professional medical practice and without establishing a legitimate medical purpose for the drugs from November 2004 and continued until December 2006. The second is the "Pitcairn conspiracy" which allegedly ran between May 2003 and April 2007. The third one is the "United Mail Pharmacy Services" conspiracy, which allegedly began in January 2006 and ended in March 2008.

This case related to Internet pharmacy website selling Schedule III and IV drugs (a) phendimetrazine; (b) diazapam (Valium); (c) phentermine; and (d) clonazepam. In essence, the Indictment alleges that the defendants at the pharmacy reviewed online questionnaires which asked customers to briefly describe medical history. The doctor defendants allegedly did not examine the "customers" and did not obtain a complete medical history and there was no effort made to confirm the accuracy of the information provided. The doctor defendant authorized the prescription and the owners/employees of fulfillment pharmacies filled and shipped the orders to the customers.

The individuals charged are from around the United States and outside the country and reflect the geographic spread of internet pharmacies. All of the defendants were charged with (1) conspiracy to distribute schedule III and IV controlled substances, in violation of 21 U.S.C. § 846, and (2) conspiracy to launder money, in violation of 18 U.S.C. § 1956(h). In addition, all but one defendant were charged with distribution of the schedule IV controlled substance Phentermine, in violation of 21 U.S.C. § 841(a)(1), and all but another defendant were charged with conspiracy to launder money, in violation of 18 U.S.C. § 1956(h).

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, prescription fraud attorney, California physician lawyer, and California Medical Board attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

Two Painting Contractors Pleaded Guilty To Workers Compensation Premium Insurance Fraud In Ventura County - Sentencing Set

2010-09-08T06:52:00.000-07:00

In California, the District Attorney's Office continue to investigate and prosecute workers' compensation premium fraud. A recent case in Ventura County involved two painting contractors and pleas were entered with sentencing set for September 22, 2010.

Premium insurance fraud is committed when an employer intentionally misrepresents to the State or his/her insurance company the number of employees, the nature of work performed by certain employees, the amount of payroll, and the loss history. These misrepresentations allow employers to purchase Workers’ Compensation Insurance at a significantly lower rate, or to avoid purchasing the insurance at all. This practice also places their competitors at a disadvantage because it forces them to compete against a company with lower operating costs.

On July 23, 2010, Michael Nuciforo and James Nuciforo, owners of D and J Drywall Painting, Inc. in Newbury Park, California, pleaded no contest to three felony counts of workers' compensation premium fraud and admitted a special allegation that their conduct caused losses of over $100,000.

Michael and James Nuciforo were accused of lying to their workers' compensation insurers over a period of nine years in order to lower their workers' compensation premiums. The Ventura County District Attorney's Office Workers' Compensation Unit froze $1.5 million of defendants' assets pursuant to California's “freeze and seize” law (Penal Code § 186.11) in order to preserve money for the purpose of paying restitution and fines. Restitution is expected to exceed $500,000.

The sentencing hearing for Michael and James Nuciforo is set for September 22 at 1:30 a.m. in courtroom 12. They are facing up to nine years in state prison.

Attorney Comments: We note several things about this case. I have written several other posts regarding premium workers' compensation fraud. I will not repeat those comments here but these articles are: "Workers Compensation Premium Fraud in Los Angeles" and "Workers' Compensation Fraud: Attorney Comments on Premium Fraud Case in Orange County."

First, restitution will be the most important factor at sentencing. If full restitution has been made it is much easier to obtain a non-state prison or jail sentence. Given that assets of $1.5 million were seized, these assets can be used to fund the restitution if they can be made liquid. This is critical and strategy and creativity has been used in many of our cases to fulfill this requirement.

Second, Ventura County is different that Los Angeles County or San Francisco County. Ventura (and Orange County) are tougher on white collar crime sentencing. First-time offenders are frequently given jail time. Thus, every extra effort to obtain probation or house arrest must be made in counties such as Ventura. Where judges are used to sentencing people to 60 days county jail for minor offenses involving less than $1,000 when the loss amounts exceed $100,000 - judges and prosecutors are insisting on jail time. However, payment of restitution is a clear indicator of acceptance of responsibility.

Third, this case went back 9 years. The statute of limitation does not begin to run until the date of discovery of the fraud and under People v. Zamora there should be an allegation in the complaint about the failure to discover the alleged fraud. Thus, if your company has engaged in this activity, now is the time to hire a lawyer, change practices immediately, and seek advice on how to proceed. Do not use an accountant or non-lawyer given that your statements to them are NOT protected by the attorney-client privilege.

Fourth, there will be a civil lawsuit by State Fund or the workers' compensation carrier and this should be handled at the same time as the criminal case in order to resolve the case in its totality.

Fifth, each case is different but it requires an assessment early on at the first notice that there is an audit or investigation. I have seen attorneys not take these audits or preliminary investigations seriously and seen individuals arrested without any notice and been saddled with a high bail equaling the cost of restitution. Although I have been successful in getting bails reduced from $10 million or $1 million in a workers' compensation fraud case - it is much easier if I have contacted the District Attorney's Office early, offer a self-surrender in the event charges are filed, and make all efforts to evaluate the case pre-filing in order for there to be damage control.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing professionals in fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Los Angeles Physician Charged With Misdemeanor Counts For Prescribing Painkillers: What's The Real Story Here?

2010-09-07T14:49:00.000-07:00

A Los Angeles physician from the San Gabriel area, Dr. Zhiwei Lin, 52, a board-certified neurologist, was arrested September 2, 2010 for allegedly prescribing pain medication to homeless people who didn't need the drugs, according to the Los Angeles Times' article "L.A. Doctor Arrested For Allegedly Prescribing Painkillers to Homeless People Who Didn't Need Them."

A misdemeanor complaint and arrest warrant is only an accusation is not evidence of guilt. Dr. Lin is presumed innocent and is entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.

Dr. Zhiwei Lin was arraigned on Friday, September 3 on five counts of illegally prescribing drugs, misdemeanors each punishable by up to a year in County Jail and a $20,000 fine, according to the arrest warrant filed in Los Angeles County Superior Court.

This case shows that a multitude of agencies are investigating and prosecuting prescription fraud or health care fraud: Attorney General's Office, U.S. Drug Enforcement Administration (DEA), District Attorney's Office, U.S. Attorney's Office and City Attorney's Office. This case was investigated by the Health Authority Law Enforcement Task Force (HALT) and Sgt. Steve Opferman has many years of experience with health care issues, beginning with his years at the Los Angeles County Sheriff's Department.

Sgt. Opferman runs the medical fraud unit that made the arrest and was quoted in the Los Angeles Times as stating that Dr. Lin is suspected of prescribing Vicodin, a powerful pain reliever popular among drug abusers, to homeless people without legitimate medical need.

Sgt. Opferman was further quoted as stating that it is believed that homeless "patients" were brought to the doctor by recruiters, also known as cappers. The cappers would pay the homeless people for their prescriptions and turn them over to dealers who sold them by the pill at a huge mark-up. Presently, there is no allegation of Medi-Cal or Medicare fraud and it is not clear how the billing was done for medications that were allegedly medically unnecessary. This is a case that could grow if fraud allegations are added to the case.

Dr. Lin appears to have two practices: one in San Gabriel and one on Western. At this point, it is not clear if Dr. Lin knew what was going on in his Western office and whether he was involved in the alleged patient recruitment. The fact that he was not charged with patient recruitment or capping makes it appear as if there must be more to this story and whether someone else other than Dr. Lin is involved in some of the alleged wrongdoing. Otherwise, it seems like a case where the counts charged would be felonies rather than misdemeanors.

The L.A. Times quoted a security officer at the building as stating that that Dr. Lin's practice drew "strange characters" on the days it was open and that police had been called to at least one disturbance. This means that the practice was not open every day.

The L.A. Times indicated that Dr. Lin's case would be referred to the Medical Board of California, which could pursue action against his license. Generally, the Medical Board will wait until the criminal case is resolved before it take administrative action unless there is a danger to patient health. In addition, the DEA is also reported to be involved and could pull Dr. Lin's federal permit to prescribe drugs prone to abuse.

Attorney Commentary: I have several thoughts on this case. First, the misdemeanor counts indicate that Dr. Lin may have been out of the loop on the alleged capping or selling or dealing of drugs afterwards. If there were videotape of Dr. Lin paying referral fees or being involved in either, generally felony counts would have been filed. The real money in this type of alleged scam is in the money obtained by selling the prescriptions. Dr. Lin or his office would have only received money for the office visit.

Second, when physicians have second offices which are not the primary offices, these issues are more likely to happen. The L.A. Times article noted that the office was not always open. When physician assistants or office managers have more presence in the office than the physician -- these issues are more likely to occur. The article does not mention anyone else being involved, but based on my experience -- some part of the story is missing.

Third, this may have been a rejected case by the District Attorney's Office and this is why it was charged as a misdemeanor. Hard to tell. Based on my experience, Sgt. Opferman has a reputation for being pragmatic and understanding what happens in the "real" world since he spends a lot of time coordinating investigations between agencies. He also has a reputation for being fairly straight forward. Thus, we will have to wait and see what the real facts are in this case.

Any questions or comments should be directed to Tracy Green, a very experienced California prescription drug fraud attorney, Medical Board attorney, DEA physician lawyer, and California physician attorney at tgreen@greenassoc.com.

Restitution In Fraud Cases: Fake Nurse Must Repay Wages Earned & Importance Of Repayment of Restitution

2010-09-03T09:39:00.000-07:00

An unlicensed woman who stole the identities of registered nurses to obtain work as a nurse must pay back wages and benefits she received, even though she actually did the work for which she was paid, the Ninth U.S. Circuit Court of Appeals ruled on August 20, 2010. The case is United States v. Hunter, No. 09-30246. This case is a lesson on how the courts interpret "making the victim whole" even when services are performed by a defendant that have some value and did not require a license. This tracks the 6th Circuit in a similar case.

Upholding a restitution order by a federal judge in Fairbanks, Alaska, the three-judge panel said Becky Nadine Hunter had to repay former employers more than $18,000 because they did not receive the services they paid for: those of a “licensed” nurse.

Ms. Hunter was convicted of five counts of mail fraud and other crimes after federal prosecutors accused her of devising as many as 21 aliases to defraud employers and lenders, as well as the state and federal governments. The mail fraud charges arose from a series of false documents Ms. Hunter mailed to obtain employment as a nurse when she moved to Alaska in 1998. Prosecutors said she acquired nursing licenses in the state using the names, Social Security numbers, birth dates and credentials of two nurses who lived in New York and Canada.

Ms. Hunter used the first license she obtained, along with a false employment history and other information, to get a job in 1998 as a school nurse with the Fairbanks North Star Borough School District. The district paid her $12,558 in wages and benefits, but fired her after discovering her false identity. Ms. Hunter later used a similar set of false documents to obtain a nursing position with the U.S. Department of Labor, where she was paid $5,457. She was arrested in 2004 following an investigation by the FBI, the Internal Revenue Service and the U.S. Postal Service.

U.S. District Court Judge Ralph R. Beistline of the District of Alaska sentenced Ms. Hunter to 96 months incarceration after she successfully appealed her initial sentence, and he ordered her to make restitution in full to the North Star Borough and the Department of Labor under the federal Mandatory Victims Restitution Act (MVRA).

Ms. Hunter appealed, arguing that her former employers would receive windfalls if she was required to repay wages for work she actually performed, but the Ninth Circuit rejected the argument in an opinion by U.S. District Judge G. Murray Snow of the District of Arizona, sitting by designation.

Noting that the purpose of restitution under the MVRA is not to punish a defendant but to make victims whole by reimbursing actual losses, Snow said the district court did not err in concluding that Ms. Hunter’s former employers were victims of her conduct.

“Both [North Star] Borough and the Department of Labor were directly and proximately harmed by Hunter’s mail fraud because they paid for the services of a licensed nurse that were never received…,” he wrote. “If Hunter had not mailed false documents reflecting fictitious nursing credentials, she could not legally have been employed in positions that required a valid nursing license, and a qualified licensed nurse could have been employed instead.”

Snow similarly rejected Hunter’s assertion that the restitution order should have deducted the value of services she provided that did not require her to hold a nursing license.

“This conclusion accords with traditional principles of contract law,” he explained, pointing to treatises by Corbin and Farnsworth. “When an individual fails to comply with licensing requirements aimed at protecting health and safety rather than merely raising revenue, that individual can maintain ‘no action for the promised compensation or for quantum meruit.’ ” Judges Raymond C. Fisher and Marsha S. Berzon joined Snow in his opinion.

Attorney Commentary: Restitution is key in fraud cases. There are some cases where there has been no fraud. But in those cases where there has been fraud or a mistake of judgment so severe that it amounts to fraud, restitution is important. Assessment of restitution and payment before charges or sentencing is key to obtaining a great result in a criminal fraud case.

If there is 1 thing I could teach my clients it is to pay restitution at some amount -- no matter how small -- every month. If the restitution is $100,000 and the client has no money, the payment of $100 a month or taking a second job to pay $2,000 a month will earn the respect of the court, the prosecution and the victim. There may be some dispute over the amount but payment is critical.

All too often even though I preach this regularly, my clients or potential clients fail to appreciate how important this fact is in the system. I make my clients earn the right to say they are sorry and to show true acceptance of responsibility where my client has made a mistake or done something wrong. If this means borrowing money, selling items through a yard sale or otherwise or second or third jobs -- this may be the difference between probation and jail time.

Any questions or comments should be directed to Tracy Green, a very experienced California administrative law attorney, Los Angeles nursing board attorney, and California licensing attorney, California health care fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in audits, administrative board and discipline matters in California and throughout the country. Our website is: http://www.greenassoc.com/

Charging Physicians & Nurses For Making False Statements In Patient Files And Issuing Orders For "Unnecessary" Home Health Services: Guilty Pleas In Federal Home Health Care Fraud Case

2010-09-02T10:08:00.000-07:00

The other day I posted an article about guilty pleas in a home health care federal criminal case in South Florida. That article is entitled "Home Health Care Fraud Case: Miami-Area Clinic Owner, Patient Recruiter, Two Nurses and Medicare Beneficiary Plead Guilty."

This post is about a related case. What is notable about these cases from a physician standpoint is that there is an increase in criminal investigations relating to physicians who have written prescriptions or orders where there is "lack of medical necessity." Thus, even where the home health services were provided to patients the physician has been charged for writing orders when there was evidence of no medical necessity. In both of these two cases, the patients were obtained through illegal marketing efforts by the home health agency (not the physician). It appears that this doctor plead guilty to false statements in patient files and conspiracy to commit health care fraud since he did not want to risk the incredible risk of getting up to 10 years in prison if he went to trial.

This case is also notable for nurses since the nurses in this case admitted to "falsifying" patient files for Medicare beneficiaries so they could qualify for services.Thus, if the nurses documented certain complaints or vital signs in the chart that were not accurate to get a patient a home health service, this would be enough to constitute a "falsification." The nurses in this case did not own the business and were working for hourly pay for others. Perhaps they aggressively documented or added false notes in the chart to "help" the patient get home health and perhaps due to pressure from their employer.

In this related case, on August 30, 2010, medical doctor Fred Dweck, clinic owner Yudel Cayro, and four nurses, all South Florida residents, pleaded guilty before U.S. District Judge Adalberto Jordan in U.S. District Court in Miami for their participation in Medicare home health care billing for beneficiaries. Another nurse pleaded guilty on August 25, 2010, to charges for her role. The individuals were originally charged in a December 2009 indictment.

Dr. Fred Dweck pleaded guilty to one count of conspiracy to commit health care fraud and one count of making false statements in patient files. According to plea documents, Dr. Dweck admitted to referring 858 Medicare recipients for unnecessary home health care services. Specifically, Dr. Dweck admitted to signing prescriptions, plans of care, and medical certifications for these patients, making it appear that they qualified for home health care services, when in fact they did not qualify for the services. The services included therapy and skilled nursing visits for purported diabetic insulin injections. As a result of Dr. Dweck’s referrals, Miami-area home health care agencies billed the Medicare program for more than $37 million. Medicare paid more than $22 million of the claims. The government claimed that these claims were "false and fraudulent."

Clinic Owner. Dr. Dweck’s co-defendant and clinic owner, Yudel Cayro, pleaded guilty to one count of conspiracy to commit health care fraud. According to plea documents, Mr. Cayro admitted to being an owner and operator of Courtesy Medical Group Inc., a Miami-area clinic that employed Dr. Dweck. Mr. Cayro admitted that he received kickbacks and bribes from people who recruited Medicare recipients into the scheme and from the owners and operators of Miami-area home health agencies in return for having Dr. Dweck issue prescriptions, plans of care and medical certifications for unnecessary home health care and therapy services. Mr. Cayro admitted that approximately 344 Medicare recipients were referred for such unnecessary services through his clinic, resulting in more than $16 million of billing to the Medicare program by home health agencies.

Nurses. Nurses Teresita Leal, Armando Sanchez, Lissbet Diaz, Marlenys Fernandez and Silvio Ruiz each pleaded guilty to one count of conspiracy to commit health care fraud and one count of making false statements in patient files. According to court documents, each of the nurses worked at various times for ABC Home Health Care Inc. and/or Florida Home Health Care Providers Inc., two Miami-area home health care agencies. The nurses admitted to falsifying patient files for Medicare beneficiaries to make it appear that the beneficiaries qualified for home health care and therapy services. The nurses admitted that they did so in agreement with their co-conspirators so that the Medicare program could be billed for medically unnecessary services. The owners and operators of ABC and Florida Home Health pleaded guilty last year in a separate case for their roles in the scheme. According to court documents, each nurse accepted responsibility for the billings to the Medicare program for certain patients each nurse purported to treat through ABC and/or Florida Home Health.

Sentencing set for December 2010. At sentencing, each defendant faces a maximum of 10 years in prison for each conspiracy to commit health care fraud count and five years in prison for each false statement count. However, plea bargains mean that there will be reductions in sentencing for acceptance of responsibility. In addition, some of these defendants may be cooperating in other cases in order to obtain downward departures in sentencing. The loss amounts in these cases are significant and all of the defendants are facing federal prison time although in some cases probation can be obtained depending on the role of the defendant, the facts and the level of cooperation.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, home health fraud attorney, California home health lawyer, and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Investigation: Families of Those Who Overdosed Have Questions for Doctor Who Prescribed - L.A. Times Articles

2010-08-31T12:57:00.000-07:00

Here is a link to a recent L.A. Times article about Dr. Lisa Tseng, an osteopath in Rowland Heights, a Los Angeles suburb. Last week after a 3 year investigation, the U.S. Drug Enforcement Administration deemed her "an imminent danger to public health and safety" and suspended her license to prescribe drugs prone to abuse. The L.A. Times has followed this story closely and is a hard lesson for physicians who prescribe painkillers, muscle relaxants and anti-anxiety medications as part of their practice.

Dr. Tseng has a clean record with the Medical Board and has not been charged with a crime. We have handled a number of these type of cases and the medical charts will be important as part of her defense and preventing any criminal cases from being filed.

Investigation: Families of those who overdosed have questions for doctor who prescribed - latimes.com

The L.A. Times had a related article entitled: "Six Patients of Doctor Died of Drug Overdoses in Three Years"

Posted by Tracy Green, Esq.

Home Health Care Fraud Case: Miami-Area Clinic Owner, Patient Recruiter, Two Nurses and Medicare Beneficiary Plead Guilty

2010-08-31T10:46:00.000-07:00

In late July 2010, five South Florida residents, Arturo Fonseca, Isis Torres, Francisco Portillo, Eduardo Romero and William Madrigal, pleaded guilty before U.S. District Judge Adalberto Jordan to various health care fraud charges. The five individuals were originally charged in an indictment in December 2009. The pleas of these individuals show how medical clinics and physicians worked with home health agencies, Medicare beneficiaries and marketers.

In Florida, non-physicians can own medical offices. Arturo Fonseca, 47, was an admitted owner and operator of Courtesy Medical Group Inc. Mr. Fonseca pleaded guilty to one count of conspiracy to commit health care fraud and five counts of soliciting and receiving health care kickbacks. At the plea hearing, Mr. Fonseca admitted that Courtesy operated in part to provide prescriptions, plans of care and medical certifications, among other things, to Miami-area home health agencies.

According to court documents, Courtesy provided these medical documents so that the home health agencies could bill the Medicare program for expensive home health services and therapy for beneficiaries that did not need and in some cases did not receive the purported treatments. According to the Indictment, approximately 344 prescriptions were issued through Courtesy and signed by Fonseca’s co-defendant, Dr. Fred Dweck. As a result, it was alleged the Medicare program was fraudulently billed approximately $16.6 million for home health services.

Eduardo Romero, 44, was a patient recruiter for ABC Home Health Care Inc., and Florida Home Health Care Providers Inc., two Miami-area home health care agencies. Mr. Romero pleaded guilty to one count of conspiracy to commit health care fraud, and three counts of soliciting and receiving health care kickbacks. According to plea documents, Mr. Romero admitted that in his role as a patient recruiter, he would solicit and receive kickbacks and bribes from the owners of ABC and Florida Home Health in return for providing Medicare beneficiaries that the home health agencies could use to bill the Medicare program for unnecessary home health care services.

Mr. Romero also admitted to paying kickbacks and bribes to the owners and operators of Courtesy in return for the prescriptions for unnecessary home health care services. Medicare was billed approximately $391,593 for purported home health care services that were not medically necessary or were not rendered for the patients recruited by Mr. Romero and one of his co-defendants. The owners and operators of ABC and Florida Home Health pleaded guilty in a separate case and are awaiting sentencing.

Two nurses who worked for the home health agencies also plead guilty in this case. Francisco Portillo, 41, and Isis Torres, 37, each pleaded guilty to one count of conspiracy to commit health care fraud and one count of making false statements in patient files. According to plea documents, Portillo and Torres were nurses and falsified patient files for ABC and Florida Home Health to make it appear that the patients qualified for home health care services, when in fact they did not qualify and in some instances never received any treatments. According to court documents, Portillo was responsible for approximately $142,000 in fraudulent Medicare billing and Torres was responsible for approximately $528,400 in fraudulent Medicare billing.

One interesting twist in this case is that a Medicare beneficiary was actually charged. William Madrigal, 56, pleaded guilty to one count of conspiracy to commit health care fraud and one count of soliciting and receiving health care kickbacks. According to plea documents, Madrigal, a Medicare beneficiary, admitted that he solicited and received kickbacks and bribes in return for allowing ABC and Florida Home Health to bill Medicare for home health care services for which he did not qualify. Mr. Madrigal admitted that as a result of his role in the scheme, approximately $68,760 was fraudulently billed to Medicare for unnecessary home health care and therapy.

I see that many of the beneficiaries are participating in the fraud and kickback schemes and the government agencies (state and federal) are doing very little if anything in outreach or sanctions to stop the fraud at the inception. Medicare beneficiaries receive EOBs (explanations of benefits) and know if Medicare is being billed for services not received. Yet when poor Medicare beneficiaries sell their number or agree to unnecessary services for payment, this creates greater problems in the system.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, home health fraud attorney, California home health lawyer, and California Medicare fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Lesson to Physicians & Health Care Professionals Working In Prisons: Florida Dentist Convicted Of Felony For Having Sexual Relations With Inmate

2010-08-24T07:50:00.000-07:00

With health care professionals increasingly chosing to work for correctional institutions, they need to be very careful to follow all rules and regulations of those facilities and to remember the population they are serving some of whom have mental illnesses or psychological disorders. A recent case is a lesson for all health care professionals working in prisons.

On or about August 12, 2010, Godfrey Onugha, a dentist working at the Federal Correctional Institution in Tallahassee, was sentenced to five months’ imprisonment, five months of home detention and a $3000 fine for one count of sexual abuse of a ward (or inmate) within a federal prison. Dentist Onugha 50 years old, was sentenced and his guilty plea on May 27 this year.

Dentist Onugha admitted in his plea that in January of this year, he engaged in oral sex with a female inmate in the x-ray room of the dental unit in the prison. The DNA profile developed from a semen sample on the inmate’s shirt matched the DNA profile of the defendant. Dentist Onugha claimed that the encounter was consensual and was initiated by the inmate. The inmate claimed that he forced himself on her. In addition to the prison term, Onugha will also be required to serve a term of five years’ supervised release following his release from custody.

Attorney Commentary: This offense used to be a misdemeanor but in the past five years the laws have changed. Even consensual sexual contact between staff and inmates, which previously was punished as a misdemeanor, has been reclassified as a felony and the maximum penalty for that offense is 15 years (where it used to be 1 year).

I worked on a case 15 years ago where an inmate initiated sexual contact in order to obtain preferential treatment and then filed a civil rights lawsuit claiming there was sexual assault. In this dentist's case, after the conviction he will have consequences to his license which could include loss of the license depending on the state.

In addition, the health care professional needs to remember that the patients will be viewed as vulnerable given the fact they are in prison. Cases involving sex with a patient are taken very seriously by the various Boards.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in investigations and criminal matters in California and throughout the country. Our website is: http://www.greenassoc.com/

What Should Health Care Providers Do To Prepare For Or Help Avoid An Audit By Medi-Cal, Medicare Or Private Insurance Companies?

2010-08-22T10:10:00.000-07:00

If you are a health care provider with a Medicare or Medi-Cal provider number -- especially in Southern California --chances are you WILL be audited or have an on-site visit at some point over the years. The audits and on-site visits (sometimes unannounced) have increased dramatically over the past years and will continue to increase as the state and federal governments face budget problems. In addition, the private insurers who administer Medicare are required by their contracts with the government to audit whether they suspect improprieties or not.

Your practice may also be subject to audits from insurance companies and health maintenance organizations (HMOs). The audit must be taken seriously since it can result in an overpayment being assessed and/or adverse administrative history. However, do not panic. Although it can seem like an intimidating event, you can increase your chances of prevailing and not having an unfair overpayment amount assessed if you prepare for any potential audit in advance and handle it properly once the request is made.

Here are some strategies and tips for helping you not only survive your audit but being prepared and prevailing to the greatest extent possible:

1. Prepare Your Staff In Advance For Understanding That Audits Are Part Of The Healthcare Business. Providers and the staff often erroneously assume that if they are being paid for claims that everything is correct and they are doing everything right. Not so. Medicare and Medi-Cal pay the provider on a "good faith" basis and reserve the right to audit. Private insurers, on the other hand, often require pre-approval before payment. Thus, it is critical that your entire staff understand that the best defense against audits is good charting, documentation, proper coding, and avoiding any upcoding, billing for services not provided or documented or anything else that may be characterized as fraud or abuse.

Once everyone understands that audits are part of the process it also helps them take control of the audit process and not let fear prevent them from handling it professionally. Most Medicare and Medi-Cal audits fall into one of three broad categories:
(1) an audit during the application or updating of application process where there is an on-site visit and review of business records and typically only a limited number of claims;
(2) prepayment audits (most common in Medicare), in which a review of claims is conducted before Medicare pays the physician, where carriers typically want to look at only one or two claims from each physician; and
(3) post-payment audits.

In a comprehensive post-payment audit or review, the carrier reviews a small statistical sample of claims and uses the results to calculate a projected overpayment for a period of months or years.

2. Identify In Advance Who Is Authorized To Speak To Auditors And Any Other Person Or Investigator Who Visits The Office In An Announced Or Unannounced Visit. First impressions count and this applies to audits and other visits by regulators or investigators. You will be better prepared if you determine in advance who is permitted to speak to government auditors or regulators. For example, you do not want the receptionist interviewed about your office's policies and procedures since anything he or she says may be used in your audit.

Establish a procedure that only an office manager, the provider or the health care lawyer are allowed to meet and discuss anything with the auditor or regulator. The other staff should be limited to contacts about establishing times and dates available for meeting unless and until they are instructed to do so by the designated persons in charge of the audit. There are many horror stories about staff meeting with auditors or regulators while the provider is out of the office and giving misinformation which was later used against the provider.

3. In Order To Anticipate An Audit Or Prevent An Adverse Audit, Understand Fully How The Medicare Or Medi-Cal Program Operates. Providers often assume that billers and office staff know how the Medicare and Medi-Cal programs operate when this is often not the case. Billers are used to working from superbills and entering codes without analyzing whether all the program rules are being followed. It should be understood by all that these programs will only reimburse "reasonable and necessary" services where there is the required documentation -- even if the services were provided. If the documentation is not present in the file -- it will be presumed that the service was not provided or that it was not medically reasonable and necessary.

We suggest that the providers have the billers and office managers create a thorough notebook regarding each of the procedure codes billed that contains the printed portions of any relevant manuals about what constitutes 'reasonable and necessary services' as defined by Medicare or Medi-Cal and what documentation is required for these services. It is then necessary to have the providers and anyone who sees patients or provides services read and understand these requirements. In addition, the provider needs to be aware of what your local carrier wants claims forms and patient records to contain because the requirements vary.

The provider may have worked in a hospital or private setting where the documentation requirements are different from private Medicare or Medi-Cal and not realize they are failing to properly document the file. For example, state law and private insurers may allow a physical therapist assistant or physical therapy aide to perform certain tasks in physical therapy while Medicare's billing and reimbursement policies and procedures may not pay for the same treatment by these assistants or aides for Medicare treated patients. Such information typically is contained in the Medicare manual and the local carrier's local medical review policy which are all available online.

Above all else, maintain complete documentation in patient records to substantiate the services billed. Record symptoms and diagnoses, details of the services and level of care provided, and complete progress notes. Medicare considers lack of corresponding documentation as evidence that billed services were not reasonable and necessary. The auditor will consider any related reimbursement as an overpayment and require the provider to refund the applicable amount.

There should be periodic internal reviews of files and education to ensure that the documentation is being done properly. Even if this billing and procedure code notebook and research was not done before the audit, prepare it at the beginning of the audit so everyone at the provider's office is prepared and knows the billing and reimbursement policies. Often during the audit, auditors will be mistaken about documentation or medical necessity requirements.

4. Have A Health Care Attorney To Whom You Can Send Any Audit Letters Or Whom You Can Contact Anytime There Is A Visit And Request For An Interview. If you receive a letter or visit from your Medicare or Medi-Cal carrier requesting a number of charts or records, contact your attorney immediately and fax him or her the letter or business cards of the visitors. Even if the attorney only needs to be minimally involved in most of the audit and file preparation, you need an objective person to ensure that the audit is handled in the best manner possible.

It is often easier for the health care attorney to speak with the auditors and set up a timetable for any interviews or to ensure that there is sufficient time to respond to the request for documentation. In most cases, thirty or sixty minutes of a qualified health care attorney's time at the beginning of the audit is well worth it since it will reduce the risk of overpayment, help reduce the provider's time and help ensure that the audit goes smoothly and that a good impression is made.

Resist the temptation to think that if a health care attorney is involved that an auditor or regulator will think that something is "wrong." In fact, the opposite impression is given: the provider is sophisticated, professional and has an established method for responding to audits. This is especially important in "unannounced" visits where it is easier for a health care attorney to be objective and take control of the situation where an auditor simply shows up and demands records and interviews at that moment. The health care attorney can also address regulatory issues that may be beyond the provider's expertise.

5. Read Any Letters Or Lists Carefully And Make Sure You Understand What Is Requested And See If There Are Any Patterns. This is another reason to send an audit or similar letter to your health care attorney so you understand what is requested. For example, assume that records for specific dates of service are requested as to a certain number of patients. Make sure that you also send in any other documentation that would support the services rendered on that day. This could include laboratory results, X-ray reports, photographs, consultations from other physicians, etc.

When reviewing the audit letter, especially if the letter requests multiple charts, see if there seems to be some type of underlying pattern or theme in the chart notes. Were the requested patient charts all billed for one particular code, all referred by a certain physician, or is there some other pattern? This will assist you in better addressing the concerns of the audit -- which may not be told to you directly by the auditors.

6. Determine With Your Health Care Attorney Whether You Need An Expert Witness Or Coding Expert During The Audit Process. Your attorney and you should consider hiring a coding expert to review the charts, preferably before you submit them to the auditor or carrier. If the expert cannot complete the review before the deadline for producing the records, the attorney will ask for an extension or simply have the expert conduct his review at the same time that the carrier does. Your attorney should have the review done under the attorney work product privilege so that the results will be confidential. One excellent preventative measure is to have a coding expert review charts periodically so that you know that your practice is in compliance with billing and record requirements. This can also be part of a compliance plan.

7. Take Control Of The Audit. Make Sure Records Are Complete. Review Charts And Records Carefully Before Copying Them Or Providing Them To Auditors. The auditors or regulators do their best to put the burden on the provider to prove that the services were properly documented and coded. Remember that the auditors are often not medical personnel even if they have some medical training. The auditors will often ask for the charts right away in unannounced visits.

Take your time and ensure that all reports, notes and other information are in the chart before you produce or copy it. Look for other records such as sign in sheets that will also be relevant to the audit. One of the most important things to do in preparing to respond to an audit is to ensure that the records are complete. One of the best ways to do this is to meticulously compare each medical record with its corresponding billing record. Remember, the billings are where the government’s investigation began. You can ensure that there are records for each of the dates billed, identify coding issues and have a better idea how to proceed in the audit.

Another important step is to make sure you produce the complete records. It is not enough to have them but you need to produce them and have records of the production. If you fail to produce records requested, you can be penalized financially or with adverse action against your provider number. If the auditor or regulator agrees you do not need to produce certain records or documentation, you or your health care attorney should document this agreement. It is important to document what is produced since you will be creating an administrative record. All records and documentation produced should be accompanied by a memorandum or letter itemizing the records produced and either delivered in person or with a return receipt or overnight service as proof of delivery.

8. Do NOT Alter The Records. If you need to supplement the records, make sure you do not back date or alter the records. Altering records can cause problems much worse than overpayments -- Medical Board complaints and discipline. Seek the advice of counsel when it comes to supplementing records or there is any issue about missing records.

9. Understand What Circumstances Might Can Trigger An Audit. Audits can provide an education. They can be stressful, especially if the outcome is unfavorable. However, they can offer tremendous amounts of information and educational opportunities for your office. Try to remain positive while you go through this process. What are some common triggers of audits?

■ High or excessive use of specific CPT codes. Sometimes excessive use of certain ICD-9 codes may also trigger audits. Generally, doctors who are outside the bell curve with regard to billing practices may get flagged on internal carrier audit screens.

If your practice tends to be more specialized (perhaps you specialize more in geriatric patients), you will, by the nature of your practice, be billing certain codes more frequently than the other doctors in the community who have a more broader-based practice pattern. You will want to explain these issues to the auditors. Do not be afraid to bill for specialized services or think that you will avoid an audit by underbilling or billing at the lower code. Just be extra careful in the documentation. Do not alter proper billing protocols just to try to stay under the radar. Bill for what you did and let the chart defend you.

Importantly, don't stress to the auditors how you provide services for "free" and underbill. That does not help your audit in most circumstances. Are you billing for codes where you are using new technology? Did you change your practice patterns to become more specialized so that your billing patterns changed? Did you add new diagnostic or therapeutic machines to the practice? Did you purchase a practice? If so, you may flag out on a statistical basis. Explain your billing and practice changes to the auditors and the best defense is a well-documented file. Use the research notebook described above to ensure you are complying with all the documentation and medical necessity requirements.

■ Do you have an unhappy patient or patient's family? If you have an unhappy patient, review the bill if the patient had a bad outcome or received an unexpectedly large bill. Sometimes collection practices or a bad outcome can prompt a patient to launch a complaint that generated the audit. To avoid such problems in the future, make sure the patient knows upfront about the costs. Speak with the biller or collection service to alter methods of collections. Consider formulating a payment plan with the patient or allow patients to pay with a credit card. If one of the patients was unhappy, raise this with the auditors.

■ Do you have disgruntled current or former employees? All it takes is a complaint from a current or former employee to trigger a fraud audit or other review. The employee may try to get revenge and the best way to prevent this from occurring is to do the following:

--have a compliance plan that requires the employee to report suspected fraud and abuse during employment;

--conduct exit interviews where employees are asked about any suspected fraud or abuse;

--have written employee policies and maintain personnel files;

--have regular office meetings to review policies;

--address small issues before they escalate to large ones;

--make everyone in the office feel like part of the team; and

--educate the employees regarding billing and documentation requirements so that they do not mistakenly think that something is being done improperly.

If you suspect that a current or former employee triggered the audit, bring the disgruntled employee up in the audit and explain why he or she is not credible if he or she is the source. The auditor may not identify the complainant but this may help defuse the employee's allegations.

■ Are You Overusing Pre-Printed Forms Or Template Shortcuts? Be careful with the use of templates especially in electronic records. Although templates are acceptable charting methods, they can look very repetitive, especially when it comes to routine care and services. Each chart note should clearly reflect the chief complaint, history, examination and treatment you rendered on that date for that patient.

Cutting and pasting templates/macros from previous dates of service and simply using that language again in subsequent chart notes does not necessarily indicate what happened on that specific date of service. It makes for a bigger charts but once it looks repetitive or like filler, it can cause an issue with the audit where your office might be characterized as a "mill" or you are questioned about the amount of time spent with the patient.

Look for these triggers and others as they will help you defend the audit. Do not be afraid of negative facts or problems that you have found. If there are weaknesses or mistakes, discuss with your health care attorney whether you should concede certain issues at the audit level for credibility reasons. Do not assume that if you admit certain problems that the auditors will be fair to you or not seek overpayment. You need to have a strategy and having an outside objective person such as a health care attorney can be useful so you do not make a tactical mistake that could cause later problems or result in an overpayment.

10. Be Professional. Treat the auditors with respect even when you disagree with them or their position. This is another reason to have an objective health care attorney for you to rely upon. It is easy to get emotional and defensive when your medical services seem like they are under attack and you already feel underpaid by the carriers.

11. Maintain A Notebook Of Administrative And Professional Records. In advance of the audit, have a notebook or file with all the key documents you need for an audit. You will be prepared and then update these on an annual basis at the beginning of the year. These records include but are not limited to the following:

--All Medicare and Medi-Cal applications and supplemental applications (see if there is an issue with failure to update these applications);

--Malpractice insurance, workers' compensation insurance; liability insurance and any other insurance required by the programs; --Copies of all licenses held by providers and staff;

--Other business documentation required by the programs such as office leases, contracts with laboratories, contracts with suppliers, etc. (this will depend upon the type of provider);

--Equipment lists where the equipment is diagnostic or used for billing; and

--Any other documentation required by the program and its manuals.

12. Request An Exit Conference Or Meeting Upon The Conclusion Of The Audit. Depending on the type of audit or visit, you want to have an exit conference or meeting where you can address any outstanding issues in the audit. You also may want to or submit a letter that is reviewed or drafted by your health care attorney showing that you have fully complied with all record requests and documenting any positions regarding coding, billing, medical necessity or other issues that have arisen. Having an excellent record of your submissions will be important to obtaining a favorable result and creating a good record if there is a subsequent hearing.

13. Conclusion. Audits happen to all providers. It does not necessarily mean you are a bad provider or that you should immediately leave the Medicare or Medi-Cal programs. With increasing financial pressures on health programs and practices, it is important to be forward thinking and create compliance plans and self-audit so your practice does not get assessed an overpayment.

During the audit, do your best to turn a potentially negative situation into a positive learning experience to correct any legitimate problems that the audit may uncover as well as to minimize the chance of future audits. Being stubborn and continuing to bill improperly will not help your practice. The carrier may still monitor your subsequent claims to see if your billing practices have actually changed and comply with the program's rules and regulations. Be proactive, anticipate audits in advance and handle audits intelligently and you will prevail to the greatest extent possible.

Any questions or comments should be directed to Tracy Green, a very experienced California administrative law attorney, Los Angeles Medicare audit attorney, and Los Angeles Med-Cal attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in audits, administrative board and discipline matters in California and throughout the country. Our website is: http://www.greenassoc.com/

FAQ: Criminal Investigations, Charges And Convictions Have Consequences For Licensed Professionals

2010-08-20T08:52:00.000-07:00

Licensed professionals and those with jobs in law enforcement or the types of job that require security clearances suffer more – almost a type of double jeopardy – when they are charged with or convicted of a crime.

In some cases, professionals can suffer collateral consequences when they are charged but have yet to be convicted. For example, if a licensed physician is charged with Medi-Cal fraud, he or she will probably be subjected to a temporary suspension and temporary withhold by the Department of Health Care Services even when there is no conviction.

In California, if you have a professional license and plead guilty to a misdemeanor or felony (even one that can be reduced to a misdemeanor and be expunged), it is virtually certain that at some point you will face disciplinary action or investigation against your license arising from the conviction. This does not mean necessarily that your license will be revoked but there is a range of discipline. The level of that discipline may depend on how you handle your criminal case and disciplinary investigation from the beginning. If a resident doctor or pharmacy graduate has a drunk driving conviction that could negatively affect him or her from being licensed.

A recent review of recent Accusations filed by the California Board of Chiropractic Examiners and discipline imposed by the California Department of Real Estate -- just two of many professional boards -- reveal what we have known well from our practical experience: the most common ground for revocation of a license, probation or for even filing an Accusation against a license is a criminal conviction.

For example, out of 33 Accusations filed by the Chiropractic Board from July 1, 2008 to March 30, 2009 - 22 involved criminal convictions. For the Department of Real Estate, over a 3 month period, out of 101 licenses that were revoked, 72 were revoked on the ground that there was a substantially related criminal conviction in violation of Business & Profession Code Section 490 and/or there was a mere conviction of a crime in violation of Business & Profession Code Section 10177(b). For the 31 real estate licenses that were revoked with a right to a restricted license, 23 of those cases involved a criminal conviction. Most other professional boards and bureaus follow this same pattern.

One reason this occurs is that criminal convictions are easy targets for the Board investigators. There's no need to prove gross negligence or engage in a debate among the experts. It is simple to prove up a conviction -- even those that are not related to the professional practice. Most criminal acts involve "moral turpitude" and allow the Boards to look tough on discipline especially when they are not especially devoted to consumer or patient protection or simply do not have the budget to do so.

What are 8 things a licensed professional can learn from these statistics and do if they are facing the potential criminal charges?

First, it goes without saying, avoid criminal charges at all costs! Do not put your license at risk. If you are entering into a business or professional transaction that could expose you to some risk, seek legal advice to ensure compliance with the law. This could serve as a defense later in the event there are charges filed. If you are facing criminal charges or think they are a possibility, do everything in your power with the help of experienced counsel to get the charges dismissed if possible. In everyday life, use common sense: do not drink and drive since drunk driving convictions are among the most common.

Second, if you are facing a criminal investigation, be proactive at that time. If there is obvious true exposure, obtain experienced counsel and work on reaching the best result possible. Consider the collateral consequences to your professional license in every way possible. In some cases, reach an agreement pre-filing or early in the stages where you can influence the charge. Seek charges if possible that will have the least impact on the license. In cases that will proceed to trial, realize that the consequence of a criminal felony conviction could well be revocation of the license. Civil compromises, deferred prosecution agreements and other mechanisms should be considered if available.

Third, do not falsely believe that only prosecutions related to the practice of your profession will result in professional discipline. The reality is that any criminal conviction for any criminal act can constitute professional misconduct. The various boards and licensed discipline professionals will discipline for anything from petty theft (shoplifting) to driving under the influence to domestic violence to tax fraud and business crimes. Disciplinary sanctions will depend on the nature of the crime committed and many additional factors.

Fourth, remember that even if you win your criminal case at trial, the burden of proof is lower at an administrative hearing. You can win the criminal trial battle but lose the war on your license. Winning your criminal case may not make the administrative matter go away. Be prepared for and aware of this fact.

Fifth, while fighting the criminal case, have counsel that will act in a manner that will not jeopardize your license. You also need to act in a manner that does not further harm your chances of holding onto your license or seeking reinstatement at an early time. Do not make any false statements or misrepresentations during proffer sessions, interviews or during testimony.

Sixth, with the help of experienced counsel, create a strategy to help bolster your professional defense while you defend your criminal case. This may include continuing education, volunteer work and other ways of showing that you are a professional who is valued in the community. Each case is different and there is no cookie cutter approach that works effectively. We like to tell clients that we help them earn the right to say they are sorry to the professional licensing boards and show them that they have learned from this experience. This needs to be done through hard work and not simply promises or letters. Action speaks louder than words.

Seventh, do not submit to interview with any government officials -- law enforcement or board investigators -- without having experienced counsel present and without being fully prepared. This is probably one of the most important points. More cases are damaged by ill-prepared interviews, confessions and misstatements which do more harm than good.

Eighth, a client who represents himself has a fool for a lawyer. Even if you think it is outside of your budget, think about the earning potential of your license over the course of your career and the value. In addition, see if you can at least hire an experienced attorney for objective guidance and advice on the key points and strategies.

Any questions or comments should be directed to Tracy Green, a very experienced California administrative law attorney, Los Angeles administrative law attorney attorney, and Los Angeles board and bureau attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Seven Important Guidelines On Completing Board Applications And Renewals

2010-08-18T08:10:00.000-07:00

When you are applying for a license (or renewing one) from the California Medical Board, State Bar, Department of Real Estate, Department of Pharmacy, Board of Registered Nursing or any other state agency or any employer that is required to report to state agencies or databanks (such as hospitals), all applicants need to remember the following basic guidelines:

1. When you sign the application, you are certifying that all the information is accurate. In most of the applications and renewal forms you are declaring under the penalty of perjury that all the information is true and correct. This means it is as if you are under oath and promising to tell the truth.

2. If you do not complete the form accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. If you give inaccurate information on a renewal, this can be grounds for discipline and constitute unprofessional conduct.

3. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. For example, if the question asks if you have a conviction, find out the definition of "conviction" since any expunged or deferred entry of judgment criminal cases will probably count as "convictions."

4. Some of the questions are vague or ambiguous - err on the side of caution and full disclosure. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation. If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. In addition, explain that you believed there was an ambiguity and set that forth so there is no confusion.

We also suggest having an experienced licensing attorney review your application for language and explanations to ensure that it is accurate but setting forth your position in the best light. The time and expense is well worth the chance of being denied a license for intentionally misleading the licensing board. Since an attorney is objective and experienced in writing these explanations, this can help a great deal. Often people are emotional, embarrassed and have a tendency to minimize or focus on irrelevant facts which makes their statements of explanation hurt them rather than help them.

For example, let us take a question from the Nursing Board's actual application:

Question: "Have you ever had disciplinary proceedings against any license as a RN or any health-care related license or certificate including revocation, suspension, probation, voluntary surrender, or any other proceeding in any state or country? If yes, please provide a detailed written explanation, including the date and state or country where the discipline occurred."

Ambiguity: The first part of the question asks about any "disciplinary proceedings" while the second half asks "where the discipline occurred." The question might seem to assume that it is only interested in cases where actual discipline was imposed.

Do NOT make this assumption. The safer and better course to follow is to set forth any actual accusations or disciplinary charges and if the case was dismissed or no discipline was imposed to state those facts.

5. Criminal Charges. The question that we see applicants harm themselves the most is the one regarding criminal charges. The disposition of criminal cases is often ambiguous and a review of original records is often necessary to know the proper way to answer these questions. We have had many cases where the applicant's failure to disclose the charge accurately resulted in denial of the license or the granting of a restricted license or probation being imposed and we are hired to handle the appeal or disciplinary charge. If the person had answered the question accurately -- the license would have been issued but the perceived deception created significant problems.

Case Example: Physician finished residency and applies for privileges at Los Angeles Hospital. He had disclosed an old driving under the influence conviction to the Medical Board. however, when he applied for privileges at the hospital, he did not disclose the conviction. The hospital ran a background check and denied his application for privileges on the ground that he was deceptive on his application. Under the law, the hospital was required to report the denial of privileges to the Medical Board of California. By the time we met him, the Medical Board filed an Accusation and this young physician had already entered into a Stipulated Settlement and Decision to be on probation for 3 years.

Here is a sample criminal charge question:

"Have you ever been convicted of any offense other than minor traffic violations? If yes, explain fully as described in the applicant instructions. Convictions must be reported even if they have been adjudicated, dismissed or expunged or if a diversion program has been completed under the Penal Code or Article 5 of the Vehicle Code. Traffic violations involving driving under the influence, injury to persons or providing false information must be reported. The definition of conviction includes a plea of nolo contendere (no contest), as well as pleas or verdicts of guilty."

Thus, if someone had been charged and there was a deferred entry of judgment where the case would be dismissed upon the completion of community service and having no further arrests for one year, it will probably be necessary to disclose that charge. Err on the side of caution.

6. Make sure the application is complete to avoid unnecessary delays. Read and re-read the requirements and have someone else review it for errors or omissions.

7. Rehabilitation. If in your youth or past, you had some criminal charges, discipline from employers or agencies, drug/alcohol issues, mental health issues or other life experiences that contributed to the prior conviction/discipline -- your application should reflect your rehabilitation and why you are not the same person that committed those errors and why it is unlikely that these issues will arise again.

We are often hired to assist a person in drafting the best application possible and creating a package that will help someone get licensed where there are past criminal convictions and disciplinary problems. The wonderful thing about the United States is the people can have second or even third acts in their life. The key is acknowledging the past problems and showing why you have earned the right to a license and there is a minimal likelihood that it will ever occur again.

Applicants must also submit a description of the rehabilitative changes in their life, which would enable them to avoid future occurrences. To make a determination in these cases, the Board considers the nature and severity of the offense, additional subsequent acts, recency of acts or crimes, compliance with court sanctions, and evidence of rehabilitation.

The burden of proof lies with the applicant to demonstrate acceptable documented evidence of rehabilitation. We create a package where we show that the applicant has met his or her burden.

Examples of rehabilitation evidence include, but are not be limited to:

• Detailed letter from applicant attached to the application describing the events at issue (prior criminal or disciplinary charges) and rehabilitative efforts or changes in life to prevent future problems.

• Letters of reference on official letterhead from employers, instructors, professionals in the same field, professional counselors, parole or probation officers, or other individuals in positions of authority who are knowledgeable about your rehabilitation efforts.

• Letters from recognized recovery programs and/or counselors attesting to current sobriety and length of time of sobriety, if there is a history of alcohol or drug abuse.

• Proof of community work, schooling, self-improvement efforts.

• Court-issued certificate of rehabilitation or evidence of expungement, proof of compliance with criminal probation or parole, and orders of the court.

• Support letters from others in the community who are knowledgeable about rehabilitation efforts, current skills and why they are supporting your application even though they know about the prior criminal or disciplinary case.

We help outline, draft and coordinate the letters and entire application package and provide an objective view of what the typical agency or bureau wants in the application. Often the applicant fails to realize that although there are many current licensees with problems and issues, in order to be licensed with some adverse history he or she needs to jump a hurdle and prove that he or she is not a disaster waiting to happen and that instead, will be a credit to the profession.

Conclusion: Your application and/or renewal application is one of the most important documents you can complete. If there are some areas of your past that are troublesome or cause you concern, it is well worth hiring an experienced attorney (even if only for a few hours) to assist you in handling these issues such as ordering the court records and drafting the explanation in an attachment. Remember the value of your license over the course of your lifetime. It is a very valuable asset often worth millions of dollars.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

"Letting Go" - Recommended New Yorker Article By Dr. Gawande On Hospice Medical Care For Terminal Patients

2010-08-17T12:28:00.000-07:00

[Photo from New Yorker article]

One of my favorite writers for the New Yorker magazine is Dr. Atul Gawande, a practicing physician and surgeon in Boston. He recently wrote a 15-page article in the New Yorker titled "Letting Go: What Should Medicine Do When It Can't Save Your Life?" which focuses on the use and application of hospice care in terminal patients regardless of disease and/or condition.

How do you deal with patients and families who have been hit with news of a terminal illness? How do you react as treatment choices are made or when non-treatment is chosen? How should hospice/palliative care be defined? Who should pay for it? Why doesn't insurance or Medicare pay for doctors to have extensive conversations with the family about the options and whether "fighting death" at all costs for a month or longer is worth it and how it could affect the quality of life in those last months.

It is an excellent article both for health care professionals and patients,

Hospice medical care for dying patients: newyorker.com

Posted by Tracy Green, Esq., a California health care law attorney. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017. Her email address is tgreen@greenassoc.com and her telephone number is 213-233-2260.

New York AIDS Physician And 8 Others Charged With Distributing Oxycodone And Medicaid Fraud: What Can A Physician Who Practices In Low-Income Areas Learn From This Case?

2010-08-15T09:37:00.000-07:00

On August 12, 2010, the Manhattan U.S. Attorney unsealed charges against Manhattan physician Diana Williamson, who ran an AIDS clinic and primary practice in Harlem, and eight others and described them as being part of a "drug ring" that allegedly distributed thousands of oxycodone pills obtained through Medicaid fraud. Four search warrants were executed on the same day including one on Dr. Williamson's Harlem community clinic where they seized her computer and a reported 16 boxes of records.

A Complaint is only an accusation is not evidence of guilt. Dr. Williamson and the other defendants are presumed innocent and are entitled to a fair trial at which the government must prove guilt beyond a reasonable doubt.

According to the Complaint and other documents filed in Manhattan federal court the allegations are as follows. Between September 2009 and August 2010, Dr. Williamson, a primary care physician, allegedly wrote oxycodone prescriptions to patients who had no legitimate need for the medication. Co-defendant Lenny Hernandez allegedly recruited the individuals to obtain oxycodone prescriptions from Dr. Williamson. He also allegedly helped the individuals fill the prescriptions and arranged to resell the oxycodone to third parties.

It was then alleged that three other named defendants—Miguel Angel Hernandez, Franmi Saeta and Ivette Arroyo assisted Lenny Hernandez in obtaining and distributing oxycodone pills. Finally, it was alleged that Medicaid beneficiaries Antonio Martinez and Carl Guilford obtained oxycodone prescriptions from Dr. Williamson—despite having no medical need for the medication—then used their Medicaid-provided health benefits to fill their prescriptions and sold the pills to defendants Lenny Hernandez and Dr. Williamson.

It is alleged that records obtained from the New York State Office of the Medicaid Inspector General show that in just over 11 months that Dr. Williamson wrote Oxycontin prescriptions billed by the pharmacies to Medicaid worth $997,128. The total amount of all Medicaid prescriptions that Dr. Williamson wrote was allegedly worth $4,392,832 -- which means that the Oxycontin prescriptions made up almost 25 percent of the Medicaid prescriptions in value. It is alleged that analysis of patient prescription data and surveillance during the course of the investigation established that approximately 11,000 oxycodone pills were obtained and distributed during this time period.

Dr. Williamson and all the other defendants each are charged with one count of conspiracy to distribute and possession with the intent to distribute a controlled substance, which carries a maximum penalty of 20 years in prison and maximum fine of $1,000,000. Dr. Williamson and defendants Lenny Hernandez, Martinez and Guilford each are also charged with one count of conspiracy to commit health care fraud, which carries a maximum penalty of 20 years in prison and a maximum fine of $250,000. These maximum sentences are rarely handed out and sentencing in federal cases is complex.

Attorney Commentary

What can a physician who is not part of an alleged "drug ring" learn from this case?

First, in low-income areas where a high percentage of patients are Medicaid/Medi-Cal, it is critical to be street smart and understand that patients will seek prescriptions for drugs and medical equipment for resale purposes. Thus, a physician who simply prescribes pain medications or other medications or DME that can be sold on the street can seemingly be implicated when he or she writes the prescription. It is therefore critical to know one's patients and not write prescriptions where medical necessity could be subjective if the drug or DME being sought is something that has resale value. A physician in a low-income clinic needs office staff that can be gatekeepers and help protect the office from patients that want to take advantage of the system. For example, there could be a patient with an AIDS diagnosis who seeks prescription medications and then resells them on the street.

Second, physicians who have a significant Medi-Cal/Medicaid practice need to be extremely careful with marketing. Often the marketers will bring in patients, pay them to come into the offices and tell them what to say in order to obtain the services desired (obtain prescription for Oxycontin) and then offer to buy the drugs from them once the prescription is filled. It is easy to imagine a physician who gets caught up in one of these "schemes" simply because they have been working with some unscrupulous marketing.

My experience has been that the marketers in the vast majority of the cases never tell the physicians what is going on at the marketing level because the marketers are going to make money with the same patient by getting marketing from the pharmacy or from selling the prescription drug or DME obtained by the patient. The marketing is often what drives these illegal schemes and when it all comes out, the physician appears to have been willfully ignorant or the evidence is so overwhelming that no one will believe that the physician did not know what was going on with the prescriptions.

Third, marketing that does not comply with federal and state rules is a short term solution to making the practice profitable. Most of the marketing that is done in these type of cases violates the Stark and Anti-Kickback statutes. Physicians need to remember that if illegal marketing is done, then all the billing done for the patients who were recruited will be deemed false claims. It has been difficult for clinics to survive in this economy but the improper marketing has great risks inherent especially where the government is being billed.

Fourth, physicians with Medicare and Medicaid/Medi-Cal practices need to have compliance plans. To risk one's medical license and criminal prosecution if regulatory rules are violated is foolhardy. Ignorance of these rules with respect to marketing is not usually a viable defense. Consulting an experienced health care attorney and being compliant with the rules is important for remaining in the health care business in the long run. It is much more affordable than hiring an attorney during an audit, Medical Board investigation or criminal investigation.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments should be directed to Tracy Green, a very experienced California health care fraud attorney, prescription fraud attorney, California physician attorney, and California Medi-Cal fraud attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in health care fraud related matters in California and throughout the country. Their website is: http://www.greenassoc.com/