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

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 15-minute consultation.  

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.

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

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. 


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

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.

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.  

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

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.  

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 Sentenced To 12 1/2 Years. Commentary On Use Of Undercovers In Physicians' Offices & Importance of Chaperones

Photo by: Nick Ut AP

Dr. Kevin Brown, the son of a former Premier of Bermuda, was sentenced to twelve and a half years in state prison for sexually assaulting 9 female patients and was convicted of 23 counts relating thereto. The case was before Judge Pastor in the Los Angeles County Superior Court. 


Dr. Brown was convicted by a jury on August 15, 2011 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. 

Dr. Brown filed an appeal to the Court of Appeal but in April 2013 all of the convictions were upheld except for two which were deemed to have been barred by the statute of limitation since the acts occurred in 2005.

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.  

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

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

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.  

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

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

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.

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

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.

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

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.

Any questions or comments  should be directed to Tracy Green, a very experienced California health care fraud, Medi-Cal fraud and 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?

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. 

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.  

Any questions or comments  should be directed to Tracy Green, an experienced California board, administrative and licensing attorney with more than 25 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

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

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. 

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. 

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. 

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

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.  

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?

 

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. 

Any questions or comments  should be directed to Tracy Green, a very experienced California board attorney, administrative attorney, and litigation 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/