Tuesday, October 9, 2018

Why Are Older Physicians More At Risk for Criminal Prescribing Charges? Recent Case: Older Santa Rosa Doctor Indicted For Unlawfully Prescribing Fentanyl And Oxycodone

I often see older physicians caught up in criminal prescribing cases. Part of it may due to impairment and part of it may be due to trusting others including patients. Older physicians need to seriously question their conduct and business arrangements since failure to follow the standard of care can be criminal if it involves scheduled drugs. The standard of care for pain management has changed drastically the last 10 years and the record keeping requirements have also increased.  

A recent case illustrates this issue. On October 2, 2018, a federal grand jury indictment against Santa Rosa neurologist Thomas Keller, age 72, was unsealed charging him with distributing Schedule II and IV controlled substances outside the scope of his professional practice and without a legitimate medical need. Dr. Keller was also charged with two counts of health care fraud related to billing. An indictment merely alleges that crimes have been committed, and Dr. Keller, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. 

According to the indictment filed September 27, 2018, and unsealed on October 2, 2018,  in June of 2017, Dr. Keller, 72, of Santa Rosa, was a licensed physician when he knowingly distributed Oxycodone to a person knowing that the distribution was outside the scope of his professional practice and not for a legitimate medical purpose.  

Healthcare Partners (a Medicare Advantage Provider) to Pay $270 Million To Settle False Claims Act Liabilities

It is not only health care physicians, hospitals, medical groups, laboratories and other companies that can get sued in qui tam cases. Recently a California-based independent physician association reached a settlement in a false claims act with the government. 

The settlement came after a voluntary disclosure. While the voluntary disclosure is expensive, in the long run it is much more effective and helps ensure that the provider will not be excluded from Medicare. This settlement also resolves a whistleblower lawsuit. The claims resolved by the settlement are allegations only, and there has been no determination of liability.

HealthCare Partners Holdings LLC, doing business as DaVita Medical Holdings LLC, agreed to pay $270 million to resolve its False Claims Act liability for providing inaccurate information that caused Medicare Advantage Plans to receive inflated Medicare payments. DaVita is headquartered in El Segundo, California.

Sunday, October 7, 2018

Owner of MRI and Diagnostic Companies Sam Solakyan Indicted for Honest Services Mail fraud for Alleged Payments for Referrals

Workers' compensation fraud cases relating to alleged payments for referrals or "scheduling services" are still being filed here in California. In addition, cases that spin out of other prosecutions can take a few years to be charged. 

On September 25, 2018, an Indictment was unsealed against Sam Sarkis Solakyan for alleged conduct that related to other federal criminal cases pending in the Southern District of California (San Diego) against other defendants. Mr. Solakyan is presumed innocent and Indictments are not evidence. 

Mr. Solakyan owns a number of diagnostic companies (Vital Imaging, Inc., San Diego MRI Institute, Global Holding LLC, Empire Radiology LLC, Access Integrated Healthcare LLC, Access Imaging LLC, Paramount Management Services LLC and Capital Edge Holding LLC).  Mr. Solakyan is charged with conspiracy to commit honest services mail fraud as well as aiding and abetting and criminal forfeiture.  

The charges arise primarily out of payments that are allegedly for referrals. First, cash payments that Mr. Solakyan's companies allegedly made to chiropractor Steven Rigler DC for referrals.  Dr. Rigler was charged in 2015 and already pleaded guilty. 

This case received some publicity, in part, because Mr. Solakyan hired the former District Attorney for Los Angeles County as chief legal counsel for his company Global Holdings but it is not known whether there will be reliance on the advice of counsel as a defense.  

Friday, September 28, 2018

Former California Medical Doctor Sentenced To Over Three Years In Prison For Unlawfully Prescribing Oxycodone to a Patient. Judge Noted Doctor Did Not Run a Pill Mill But Feeding One Patient's "Habit" Is Enough.

Previously, only physicians who went far over the line and ran "pill mills" got targeted for prosecution. Times have changed. One recent case shows a prosecution for a prescription of opioids to a single patient over a couple of years who was an addict. That patient died and local police declined to file charges so federal charges were brought on the prescribing.

On September 18, 2018, former California physician Christopher Owens was sentenced to 41 months in prison for unlawfully prescribing oxycodone hydrochloride without a medical purpose. The sentence was handed down by the Judge Alsup, U.S. District Judge in San Francisco, California.

The former Dr. Owens pleaded guilty on March 20, 2018.  In sentencing Dr. Owens, Judge Alsup stated, “[Owens] was not running a pill mill, . . . but he was doing something just as bad . . ..  He used that prescription pad to feed a habit.”  

Dr. Owens acknowledged he prescribed the drugs without a legitimate medical need and outside of the course of medical practice.  
According to his open plea application filed with the court, Dr. Owens of Indianapolis, Indiana was a medical doctor when he prescribed oxycodone hydrochloride, a Schedule II controlled substance, to an individual. His guilty plea came after an Indictment. On July 11, 2017, a federal grand jury indicted Dr. Owens charging him with distributing oxycodone without a medical need, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).  

In addition to the prison term, Judge Alsup ordered Owens to serve three years of supervised release to begin after his prison term is completed and a $7,500 fine. Judge Alsup ordered Owens to surrender and begin serving his sentence on December 3, 2018.  As a consequence of the issues in this case, Dr. Owens lost his license to practice medicine.


Sunday, September 2, 2018

Sentencing Update: California Doctor Sentenced To 63 Months In Federal Prison For Health Care Fraud. Doctor's Testimony At Trial Resulted in Longer Sentence. Doctor Husband Sentenced to One Year and One Day.

In federal court, one important issue is whether to testify or not testify. It is a more critical issue in federal court due to a federal judge's ability to increase the sentence for "obstruction" if the judge thinks the defendant misrepresented the truth. 

These same concerns are in state court but there is not usually the concern about the impact on sentencing. Instead there is the usual concern about making it appear that the burden of proof has shifted to the defense.

In a recent case, a doctor defendant received a harsh sentence based in part on the judge adding time for "obstruction" due to her testimony at trial.  On August 28, 2018, family practitioner Dr. Vilasini Ganesh was sentenced to 63 months in prison for health care fraud and making false statements related to a health care benefits program. We had reported on this case previously after the 8-week trial when she and her partner were convicted.

During Dr. Ganesh’s sentencing hearing, Judge Koh specifically stated that Dr. Ganesh  "obstructed justice" by misrepresenting her understanding of the legal system, the amount of money she was paid by insurers, and whether she understood that it was improper to “upcharge” when submitting claims to insurers. The jury had rejected a defense as well that the doctor's mental state contributed to her lack of understanding of the billing rules.

Tuesday, August 28, 2018

Internal Medicine Physician Convicted in Los Angeles Federal Court After Six-Day Trial of Conspiracy to Pay or Receive Kickbacks for Medicare Referrals and Four Counts of Receiving Kickbacks.

Health care fraud and kickback cases can be difficult to defend due to the amount of documentation and when there are numerous cooperating witnesses. A recent case, seemed to have a number of weak, inconsistent witnesses who had already plead guilty and were caught in direct mistruths and changing stories. However, the jury nevertheless convicted the doctor defendant.

On August 23, 2018, after a six-day trial, a federal jury convicted Dr. Kanagasabai Kanakeswaran an internal medicine doctor with a practice located in Lancaster, California of one count of conspiracy to pay and/or receive kickbacks for Medicare referrals and four counts of receiving kickbacks for Medicare referrals.

The government contended that the evidence presented at trial showed that from 2008 to 2016, Dr. Kanakeswaran and others engaged in a conspiracy to refer Medicare patients to Star Home Health Resources (Star), a home health agency located in La Verne, in exchange for illegal kickback payments. The government alleged that Dr. Kanakeswaran received kickback payments in cash, as well as through checks payable to a company Kanakeswaran owned, Digital Perfection Corporation.The defense denied that there were any payments for referrals. 

The witnesses against the doctor who owned or operated Star or worked as marketers had all plead in a separate criminal case and were shown to have misrepresented numerous facts and were caught in a number of lies. The defense moved to dismiss the case based on prosecutorial misconduct and under Rule 29 but these motions were not successful. 


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