Tracy Green Quoted In Lengthy Investigative Article About Medi-Cal Drug Rehab

Tracy Green was quoted in an investigative article about Medi-Cal Drug Rehab programs and allegations of fraud and abuse. The article is entitled "Amid Fraud Allegations, Rehab Doctors OK Treatment Without Seeing Patients" and is by the Center for Investigative Reporting with contributions by CNN who also did a 3-part series called "Rehab Racket." This is one in a series about Medi-Cal programs for drug and alcohol counseling treatment. Tracy Green was interviewed about one of her clients a physician who had plead to a misdemeanor count for signing blank treatment forms after being charged with felony counts.

The article focuses on the "medical directors" and the fact that the doctors did not physically examine the patients without understanding that these drug and treatment clinics are not owned by the doctors or health care professionals and that there is no requirement that the patients must be seen by a physician. In fact, the Medi-Cal program does not pay for a physical examination. The reimbursement rates are so low that it would be financially impossible to have a physician see each patient. The program cannot have it both ways -- want physical exams but not pay enough to cover it -- and this reimbursement structure has helped create this problem. The medical directors were not responsible for these clinics and were paid fairly low monthly fees ($1,000 a month). To cast the blame on these physicians is missing the real problems by the owners and managers of these clinics.

Since this series of articles have been published, the Department of Health Care Services has taken action and suspended 73 clinics including 101 additional counseling sites. Not surprisingly, all of the clinics referenced in the article have had their Medi-Cal provider numbers temporarily suspended based on accusations of fraud and abuse.

The Department of Health Care Services has also referred 64 of the clinics to the California Department of Justice, Bureau of Medi-Cal Fraud and Elder Abuse for criminal investigation.  This referral will be used to justify the temporary suspensions of the provider numbers. Those clinics will have to address the administrative law issues as well as the criminal investigation.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
800 West Sixth Street, Suite 450
Los Angeles, California  90017
213-233-2260
tgreen@greenassoc.com

CEO and Physician For Illinois Company Who Billed Medicare For In-Home Patient Visits Charged With Medicare Fraud And Making False Statements Relating To Health Care Benefits

A recent case in Illinois shows that the government is investigating home health billing including in-home physician visits and home health agency and other related billings to Medicare. This case shows how a mobile doctor company and its financial ties and referrals have been investigated.

On August 27, 2013, the CEO of Chicago-based Mobile Doctors, Dike Ajiri, which manages physicians who make house calls in six states, and Dr. Banio Koroma (one of its physicians in Chicago) were arrested on federal health care fraud charges. At the same time, federal agents executed search warrants at Mobile Doctors’ offices in Chicago, Detroit, and Indianapolis, as well as warrants to seize up to $2.568 million in alleged fraudulent proceeds from various bank accounts. The federal complaint was filed in the Northern District of Illinois. The public is reminded that a complaint is not evidence of guilt. The defendants are presumed innocent and are entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt. 

The criminal complaint allege a scheme to fraudulently increase (also known as “upcoding”) Medicare bills for in-home patient visits that Mobile Doctors falsely claimed were more complicated and longer than they actually were. 
The charges also allege that Mobile Doctors’ physicians falsely certified that patients were confined to their homes, enabling home health care agencies to claim fees for additional services for patients who were not actually qualified to receive them. There are also allegations of billing for medically unnecessary tests and for services not performed by a physician. 

Mobile Doctors in Chicago arranged patient home visits and contracted with doctors who perform the visits. The physicians assigned their rights to bill and collect payment to Mobile Doctors in return for being paid directly by the company. Mobile Doctors’ website claims that its associated physicians have made more than 500,000 house calls since its inception. In addition to Chicago, the company has branches in Detroit and Flint, Michigan; San Antonio and Austin, Texas; Indianapolis; Kansas City; Phoenix; and St. Louis. 

CEO Ajiri was charged with health care fraud, and Dr. Koroma was charged with making false statements relating to health care benefits. According to a 75-page affidavit in support of the arrest, search, and seizure warrants -- which is an outline of the government's case -- agents interviewed several current and more than 25 former employees of Mobile Doctors, including some who reported allegedly fraudulent billing practices to Medicare before they were contacted by agents. 

Investigators also reviewed e-mails and documents, claims data and patient files and have conducted interviews with patients of Mobile Doctors and their primary care physicians, whose statements allegedly contradict Mobile Doctors’ billing and patient records. 

Ordering Diagnostic Tests. Mobile Doctors physicians do not perform tests such as echocardiograms but do order such tests, which are done on Mobile Doctors’ patients by employees of In Home Diagnostics, doing business as Ultrasound2You. According to Medicare records, Mr. Ajiri is a minority partner in In Home Diagnostics, which is located in the same building as Mobile Doctors, and Mobile Doctors bills the echocardiograms so that they appear to have been done by Mobile Doctors’ physicians. Any referrals will be closely scrutinized for medical necessity and whether there is any violation of the anti-kickback/referral statutes.

Financials. The financials were key to the government's investigation as well. The complaint affidavit states that Mr. Ajiri signed a personal financial statement on December 31, 2012, stating that he received $1.5 million in annual partnership income from a corporate entity, Mobile Doctors LLC, which has a complex ownership structure involving Mr. Ajiri and, over time, one or both of his parents. Between 2008 and January 2013, bank records show that approximately $4.365 million was transferred from Mobile Doctors to an account in the name of Mr. Ajiri and his wife. 

Interviews With Former And Current Physicians, Employees and Patients Regarding Upcoding. The affidavit alleges there was upcoding and that according to interviews with former and current Mobile Doctors physicians, branch managers, clinical coordinators, employees, and patients, a typical visit that a Mobile Doctors physician has with an established patient lasts 10 to 30 minutes and is routine in nature. In contrast to those interviews, claims data shows that from 2006 through February 2013, approximately 99 percent of all established-patient visits by Mobile Doctors physicians were billed to Medicare using either of the two highest codes indicating the visits involved medical decision-making of moderate to high complexity, detailed or comprehensive interval histories or medical examinations, and/or visits that typically last at least 40 minutes. In 2009 in Chicago, the local Medicare fee for a visit using the second-highest home visit code was approximately $122.82, while the fee for the highest code was approximately $171.25. 

Claims Data Analysis For Billing Codes. The agents conducted a review of claims data for Railroad Retirement Board patients, and allege that every single established-patient visit Mobile Doctors billed to Medicare between January 2007 and June 2008 used the highest fee code. It is also alleged that between January 2007 and November 2012, approximately 93 percent of such visits were billed using the highest fee code. 

The former manager of Mobile Doctors’ Chicago branch until she was terminated in 2008 told agents that Mr. Ajiri told her that the second-highest fee code was the default code for a patient visit so that it would be worth the gas and time spent. The manager said Mr. Ajiri told physicians, “I don’t pay for ones or twos,” referring to the two lower of the four applicable fee codes. At the end of one day, she said she saw Mr. Ajiri in his office “automatically” altering the billing codes and marking visits at the highest fee level on patient records submitted by physicians and assistants who accompanied them on home visits. 

Interview With Physician. A physician told agents that in late 2007, Mr. Ajiri did not respond to his concerns about Mobile Doctors’ billing practices and instead told the doctor that he could earn more money if he would order more tests such as electrocardiograms, according to the affidavit. The complaint alleges that the vast majority of payments made on established-patient visit claims using the highest fee code were the result of fraudulent upcoding. From 2006 through 2012, Mobile Doctors received approximately $21.4 million in payments on claims using the second-highest code and approximately $12.6 million in Medicare payments on claims using the highest fee code. 

Falsely Certifying Patients as Confined to Their Homes. The charges further allege that Mobile Doctors physicians, including Dr. Koroma, falsely certified patients as confined to their homes and requiring home health services when they were not home-bound and did not require such care. By referring patients to home health agencies that did not warrant Medicare payments, Mobile Doctors received more referrals from those agencies for services provided by its physicians. According to Medicare data, from August 2010 through July 2013, more than 200 home health agencies submitted Medicare claims for services allegedly rendered to patients for whom Dr. Koroma was identified as the referring physician. These home health agencies have been paid more than $10 million for services listing Dr. Koroma as the referring physician. 

Between January 2006 and March 2013, Mobile Doctors physicians have certified or recertified for 60-day periods approximately 15,598 patients as confined to their homes and requiring home health services a total of approximately 83,133 times, many of which were allegedly false. Approximately 6,057 of these certifications were attributed since August 2007 to Dr. Koroma, with Mobile Doctors billing Medicare for approximately 17,439 patient visits he made during that time, more than any other Mobile Doctors physician. 

The health care fraud count against Mr. Ajiri carries a maximum penalty of 10 years in prison and a $250,000 fine and restitution is mandatory. The false statements count against Dr. Koroma carries a maximum of five years in prison and a $250,000 fine. If convicted, the court must impose a reasonable sentence under federal statutes and the advisory United States Sentencing Guidelines.

Posted by Tracy Green, Attorney at Law, Green and Associates
You can reach Ms. Green at 213-233-2260 or tgreen@greenassoc.com

Nurse Practitioner Bill Suffers A Setback in California

Nurse practitioners in California suffered a setback in their ability to practice independently of physicians if they are part of a medical team such a clinic or group practice. On August 30, 2013, Senate Bill 491 (Hernandez), which would remove patient barriers to health care services by permitting nurse practitioners in California to practice to the full extent of their training and expertise was held in the Assembly Appropriations Committee. The bill was not voted upon and will not move during this legislative session. The California Medical Association vigorously opposed this bill. The Los Angeles Times' article on SB 491 provides more background on the lobbying and issues present. 

Under current law, NPs have a difficult time providing services at the point of care because of requirements for physician approval to initiate or continue care that patients need.  This bill would increase autonomy for NPs to be able to provide this care. The California Association for Nurse Practitioners viewed SB 491 as especially important with the coming implementation of the Affordable Care Act, and the expected influx of up to 7 million new patients into the health care delivery system in California. The Los Angeles Times wrote an article indicating that this is a step in the right direction.

The argument in favor of the bill was that NPs would not be performing outside of their level of education and training, but would be utilized to their full practice potential without the archaic and restrictive barriers that prevent patients from receiving high quality, effective care. In addition, 18 other states and the District of Columbia permit autonomous delivery of primary care services by nurse practitioners.  

We can expect to see a revised bill presented next year regarding expanding the use of nurse practitioners in clinic and group practice settings.

Posted by Tracy Green, Green and Associates, Attorneys at Law

You can reach Ms. Green at tgreen@greenassoc.com or 213-233-2260

San Jose Psychiatrist Arrested For and Charged With Prescribing Controlled Substances Without A Legitimate Purpose and Prescribing to an Addict

The Medical Board of California has a Prescription Drug Strike Force. Recently, they conducted an investigation into a San Jose physician after receiving a complaint alleging that this doctor, Duke D. Fisher, a psychiatrist, would prescribe any medication the patient wanted in exchange for cash. The Board conducted multiple undercover operations at his office.

In our experience, these undercover operations are usually videotaped. If the undercover operation is not successful for prescription sought (such as Oxycontin), they will send undercover investigators back in and request other controlled substance prescriptions (such as Vicodin, Adderall, Xanax, etc.).

Based on the results of the undercover operation, the investigators determined that they had probable cause to believe that Dr. Fisher prescribed controlled substances without a legitimate medical purpose and prescribed controlled substances to an undercover customer who admitted to using heroin and methamphetamines.

On August 29, 2013, an arrest warrant was issued by the Santa Clara District Attorney's Office, bail was set at $64,000, and Dr. Fisher was charged with the following counts:
(1) prescribing without a legitimate medical purpose in violation of California Health and Safety Code Section 11153;
(2) prescribing to an addict  in violation of California Health and Safety Code Section 11156; and
(3) prescribing to an addict in violation of California Business and Professions Code Section 725.

Attorney Commentary

Physicians who prescribe controlled substances need to assume that everything is being recorded and that their records will be reviewed to determine if there is "legitimate medical purpose." If your personality is to trust patients -- and for physicians trained years ago who were not in the habit of cross-examining patients -- it must be remembered that when "red flags" appear, such as disclosing prior illegal drug use, conservative action must be taken.

Physicians remember that you cannot help any patients if you put your license in jeopardy. You need to set boundaries and remember that the only way in which you will not be accused of overprescribing or distributing controlled substances is if your records prove there is legitimate medical purpose and that you are not prescribing to an addict. For patients who have medical issues that require scheduled substances, they have to understand that they need to agree to the terms of your medication management agreement or they cannot be prescribed scheduled substances.

At a minimum, physicians who prescribe controlled substances need to do the following:

(1) register for the CURES database and run reports on all new patients and regularly on existing patients (some psychiatrists who treat patients with medications are not as careful on these points as are pain management physicians);
(2) remember that the CURES system is not perfect and do not rely solely on it;
(3) record all drugs dispensed and prescribed in the patient chart and keep copies of the prescriptions in the patient's chart;
(4) conduct the appropriate physical exam and obtain records from prior physicians and speak to those physicians;
(5) have pain management or medication agreements with patients that are followed and document when the agreement is breached;
(6) have a system in place that addresses the patients' medical issues and refer to specialists as needed; and
(7) remember that spending a weekend to address your practice and compliance is well worth the effort.

Once your practice has been open for some time, it is critical to revisit policies and procedures once a year just to protect yourself and your practice.


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

Colorado Doctor Indicted For Health Care Fraud, Distributing Controlled Substances And Other Charges Arising From Pain Management Practice

On August 26, 2013, a federal grand jury in Colorado issued an indictment last week for doctor Joel E. Miller in Craig, Colorado that accused him of prescribing controlled substances in quantities and dosages that resulted in abuse, misuse, addiction and death. A copy of the Indictment can be found here. There are 35 counts against him including health care fraud for billing to Medicare and Medicaid, distributing controlled substances, money laundering and forfeiture. 

This is a continued trend in physicians being charged as if they are drug traffickers. Any physician who prescribes scheduled narcotics needs to make sure that their practice is reviewed for all compliance and ensure that the evolving standard of care is being met. Even one patient in today’s world can result in charges since under the law, only if there is medical necessity and legitimate medical need (as established by the standard of care along with the record keeping required). 

Practicing physicians can learn from the allegations in the Indictment and think about them in the context of their everyday pain management practices. The Indictment alleges that Dr. Miller engaged in the following scheme which supports the charges filed against him :

(1) prescribed quantities and combinations of controlled substances to patients but failed to adequately medically address the misuse and abuse of the prescribed controlled substances of the patients; 

(2) prescribed controlled substances to patients knowing that his patients were addicted to the controlled substances, were misusing the controlled substances, or "doctor-shopping," and were requesting additional quantities of controlled substances to support the patients' drug habits;

(3)  prescribed controlled substances in quantities and dosages that would cause patients to abuse, misuse, and become addicted to the controlled substances;

(4) required patients to pay for follow-up visits to obtain additional prescriptions for controlled substances; 

(5) prescribed controlled substances to patients knowing that his prescribing endangered his patients' lives, and if taken as directed, his prescriptions would be expected to result in accidental overdoses;

(6) prescribed controlled substances to patients without determining a sufficient medical necessity for the prescription of controlled substances;

(7) prescribed controlled substances to patients in a manner which was inconsistent with the usual course of professional practice and for other than legitimate medical purpose;

(8) prescribed pharmaceuticals to patients for whom the prescription was not intended, and directed the persons to whom he prescribed the pharmaceuticals to give the prescription to third parties; 

(9) prescribed controlled substances to patients in such strengths and quantities that his prescribing became a contributing factor in the patients' overdose deaths; and

(10) pre-signed prescriptions and allowed office employees to distribute controlled substance prescriptions to patients in his absence and without a doctor's examination of the patient.

What can prescribing physicians learn from this Indictment even when they are doing their best to run a practice that is compliant? It is critical to address patients' abuse of prescribed substances, any addiction issues, potential diversion or misuse, and office procedures. The standard of care goes beyond the practice of medicine and it is critical that there is documentation and procedures in place that help follow up on any "red flags" or patients who are addicted, abusing or who have grown opiant tolerant or have dosages that pose risks to the patients. Make sure your practice is the type that an expert could review and indicate that you are following the standard of care with respect to these issues. Prevention in these cases is the best medicine. 

Posted by Tracy Green, Green and Associates, Attorneys at Law

Los Angeles Podiatrist Sentenced To Twenty-Four Months For His Role In Identity Theft And Bank Fraud To Obtain Money For His Medical Practice

Professionals, like anyone else, can make huge judgment and professional errors -- especially when it comes to making their practice financially viable during difficult times.  One recent case shows how one medical professional, a podiatrist, was charged criminally due to desparate measures.

On June 24, 2013, podiatrist Dr. Bill Releford, who founded the Releford Foot and Ankle Institute, was sentenced to 24 months in federal prison for his conviction on federal fraud charges related to a bank fraud scheme that used stolen identities to cause two financial institutions to suffer $3 million in losses. Dr. Releford specifically admitted in his plea agreement that he participated in the scheme to obtain money for his medical practice, which had offices in Beverly Hills and Inglewood.

Dr. Releford and five other co-defendants operated a scheme to defraud financial institutions by using stolen identities to establish business lines of credit which were fraudulently drawn down to provide money that was used for their personal expenses. After obtaining stolen personal identifying information – including dates of birth, Social Security numbers, credit profiles and driver’s license numbers from victims with high credit scores, including another physician from Pasadena – members of the conspiracy submitted fraudulent applications for business lines of credit to various banks. Once the applications were approved, the defendants liquidated the credit lines.

Over the course of the scheme, Dr. Releford helped the other defendants open at least two credit lines that provided funds for Dr. Releford’s medical practice. Dr. Releford also attempted to open a third credit line valued at up to $500,000, which he planned to use to fund a clothing business. Dr. Releford further participated in the scheme by helping to launder thousands of dollars from other fraudulently obtained credit lines. Dr. Releford had a minor role and two of his co-defendants went to trial, and their sentences were significantly longer (one received 88 months). 

In addition to the prison term, Judge Hatter ordered Releford to pay $218,237 in restitution and a $10,000 fine. At the sentencing hearing, Judge Hatter noted Dr. Releford’s attempts to rehabilitate himself – such as Releford’s offer to immediately pay $1,500 in restitution and his recent participation in charitable projects – and said this effort spared Releford from a longer prison sentence. It is therefore notable that post-offense rehabilitation is important at sentencing and even if defendants cannot pay the entire amount of restitution, efforts to make payments can be recognized at sentencing.  

Posted by Tracy Green

Green and Associates, Attorneys at Law  

Los Angeles Doctor Pleads Guilty In Federal Court To Distribution Of Hydrocodone And Agrees To Surrender Medical License As Part Of Plea Agreement

On August 12, 2013, a Los Angeles doctor, James William Eisenberg (age 72),  pleaded guilty before United States District Judge Michael W. Fitzgerald to one count of distribution of hydrocodone (Vicodin and Norco) in violation of 21 U.S.C. Section 841 for writing hundreds of prescriptions for various controlled substances after his DEA license was revoked.  As part of the plea, Dr. Eisenberg has agreed to surrender his medical license. This surrender agreement is becoming more common as part of plea agreements in the Central District of California. 

Dr. Eisenberg’s problems arose in December 2011 when his DEA license was suspended while he was working in Arizona.  In July 2012, a DEA administrative judge determined that Dr. Eisenberg acted as a “drug dealer” and issued an order permanently revoking his DEA registration. The orders issued by the administrative judge were based on findings that Dr. Eisenberg, who at the time was working out of a “medical marijuana” club in Arizona, “lacked a legitimate medical purpose and acted outside of the usual course of professional practice” when he wrote prescriptions for OxyContin and Xanax in exchange for $150 cash payments. The DEA judge also found that Dr. Eisenberg wrote “medical marijuana” recommendations to undercover officers posing as patients, and that Eisenberg prescribed OxyContin to one of the undercover agents “before [Eisenberg] had even performed a physical examination.”

DEA investigators later learned that Eisenberg continued to prescribe controlled substances, including hydrocodone, in violation of the DEA’s orders. A review of a California Department of Justice database that tracks prescriptions showed that, following the suspension of Dr. Eisenberg’s registration number, patients filled more than 1,700 of his prescriptions for controlled substances, including more than 1,200 prescriptions for hydrocodone.

DEA investigators executed a federal search warrant on one of Dr. Eisenberg’s West Hollywood offices on February 19, 2013. The affidavit in support of the search warrant shows that the government used surveillance and undercover operations to gather evidence on whether Dr. Eisenberg continued to write prescriptions for controlled substances in violation of the DEA’s revocation order. The evidence included an operation in which an undercover agent, posing as a patient, obtained a prescription from Eisenberg for hydrocodone and alprazolam (Xanax). Dr. Eisenberg was indicted on May 10, 2013.

Dr. Eisenberg is scheduled to be sentenced on December 9, 2013. The statutory maximum in this case is 10 years in federal prison but it is not expected that the sentence would be that high. The plea agreement has an agreed base offense level of 18 for the drugs prescribed and the U.S. Attorney’s Office will seek a 2-level enhancement for abuse of position of trust under USSG Section 3B1.3. Dr. Eisenberg will also receive a 2 or 3-level reduction for acceptance of responsibility. 

Without considering any other factors, this places him in the rough range of 24-33 months of custody under the guidelines which are not binding on the judge. Sentencing in federal cases is akin to a bench trial and there are many factors and considerations that come into play in determining the sentence. Dr. Eisenberg’s age and health may be a factor as well.

In our practice we often see that is the older physicians or ones who have had personal problems that end up with these issues and there are often mitigating factors and circumstances that can be raised at sentencing. However, it would be preferable if health care professionals realize the huge risks they are undertaking in today's world when they work at clinics where they write prescriptions without medical necessity or where other statutes and regulations are violated. I cannot imagine that this physician ever thought he would be charged as if he were a drug dealer and that this is how his career would end. It is quite tragic but hopefully others can learn from his case. 

Posted by Tracy Green

Green and Associates, Attorneys at Law

213-233-2260

www.greenassoc.com

Email: tgreen@greenassoc.com

City Councilman Charged With In Home Supportive Services (IHSS) Fraud For Billing Program While Mother Was Out Of The Country

There has been an increased filing of felony fraud cases involving California's In Home Supportive Services program. The latest to be charged is a Moreno Valley city council member who on August 12, 2013 was charged with eight felony counts relating to billing and collecting $15,000 for IHSS services provided to his mother while she was allegedly out of the United States in the Philippines and Taiwan. The felony charges included grand theft, filing fraudulent documents, presenting a false claim and fraud. The case is pending in Riverside County Superior Court.

The IHSS program is an excellent program in that it allows care to be provided at home and ultimately saves the State significant sums in hospital and nursing home costs.  However, the programs which are administered by local counties -- even though funded by Medi-Cal -- are being more aggressive on combatting fraud and billing for services not provided. Audits of these programs have criticized IHSS for being an open door for fraud and abuse. Since most caregivers are family members, friends or someone known to the beneficiary this increases the risk for fraud.

We have had a number of cases where billing was done for the Medi-Cal beneficiaries while the beneficiaries were out of the United States. Sometimes those cases were referred to the County by Social Security because the beneficiaries collected SSI while outside of the United States. Other times the issues were raised by on-site visits or care provided by family members who worked full-time at other jobs. We have also had cases where the person providing the IHSS services were out of the country while the services were provided. Other cases have involved the IHSS provider collecting the funds and hiring someone else to perform the services. And other cases involved claims that the total hours billed were not provided.

There are a number of ways that the County can refer a case criminally but the case often begins with an investigation. In those cases, it is important to find legal counsel before any interviews or incriminating statements are made. We have prevented a number of cases from being filed when involved at the beginning of the investigation. There are times, for example, when the billing errors were a result of not understanding the rules of the program. There are other times when there are suspicions but the government does not have any evidence of the wrongdoing and will not unless there is a confession by the caregiver. Other types of cases with difficult facts can be handled better if there is a strategy at the beginning rather than the time of an arrest. The city council member in the case referenced above resigned from his position due to this arrest and the charges are still pending with an arraignment scheduled for October 7.

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

California Medical Board Increases Request For Patient Records From Pain Management Physicians - Be Proactive Now And Stay Current

Physicians who treat for pain management physicians are clinicians. They did not go to medical school to become DEA agents, police officers or judges -- even though in today's climate it can seem like they feel pressured to take on these roles. In California and other states, physician who prescribe opioids or controlled substances for pain treatment are under greater scrutiny and have a greater chance of having their records requested by the Board or the DEA for review.

The Los Angeles Times ran an article entitled "Oxycontin maker guards its closely guarded list of suspect doctors" about Purdue Pharmacy and how it has sold $27 billion worth of Oxycontin since 1996. It criticizes the company for not alerting law enforcement or medical authorities to the physicians who are suspected of overprescribing or illegal prescribing. This is part of a series of stories ran by the Times regarding prescription drugs and is a reminder that practitioners in this field are currently under a microscope.

We have had a number of clients whose records have been reviewed by the Board to see if their patient care for pain management was within the standard of care. The request for records are often triggered by a single complaint (such as a pharmacy complaining about overprescribing for a single patient). The Board runs the CURES report on the physician and selects for additional review 8 to 10 patients who are younger, middle-aged or on high opioid treatment dosages or where there are some other red flags with these patients.

In these cases, it is important to get legal counsel immediately even for a consultation to ensure that you are well prepared for any interview and that your complete file is submitted (and in many cases with a summary of the patient's care). In some of our cases, we found weaknesses in our client's practices and procedures and while not conceding any problems, we made positive changes immediately and it was helpful in showing that we had responsible professionals who are staying current with the changing landscape. In some cases, early expert retention may be needed or we found that a patient or two was diverting medications and had to make adjustments at that point.

If pain management treatment is part of your practice, it is time to perform an audit of your practice and make sure that your record keeping, consent forms, screening tools, treatment agreements, referrals for depression, referrals to other physicians as needed, patient education forms, and monitoring practices (urine testing, CURES reports, pill counting, etc.) are keeping up with the changing standard of care and changing laws and regulations. Do you modify your treatment plan when the patient reaches in excess of 120 mg morphine equivalent dosage (MED)? Do you document with specifics how the benefits of opioid treatment outweigh the risks? Build this into your staff and practice so it's part of the process.

It is becoming more important to have "universal" precautions in dealing with patients to ensure there is no risk of diversion. We have had clients who run urine tests and CURES reports on some patients but not on others who seem low risk. However, you cannot simply assume that just because someone is elderly (for example) that they do not pose a risk for diversion. This also makes it easier in your practice in that you then can tell the patients -- this is how we manage everyone -- and they do not take it personally. Drug tests are becoming the standard of care since you're ensuring that the patient is taking the medication as prescribed and that there is not diversion. CURES reports are also the standard of care now since you're ensuring that the patient is not doctor shopping.

Keep up with new monitoring methods. For example, one relatively new practice is to have the patients bring their pill bottles in for a "pill count" (sometimes randomly) -- especially for high risk patients -- for additional monitoring. Follow up on any issues raised by family members or the patient (nodding off during the day, sleep issues at night, preoccupation with the prescribed opioid, etc. Use the opioid risk management tools to assess the patient especially since many of these such as SOAPP are available free on the Internet.

For those in California, review the California Medical Board website on pain management periodically for updates on pain guidelines. even though it is behind the times and do not set forth in detail the standard of care and medical necessity -- but it is does set forth the basic law and policies of the Board.  

Chronic pain is complicated and implementing audits for your practice will not only help with any investigation by the Board or DEA but will also help protect yourself against any potential malpractice case and help prevent any potential criminal liability. The law is clear that unless there is legitimate medical purpose for prescribing scheduled narcotics -- the prescription is not legitimate. If the records are not sufficient or if the patients are diverting medications, there can be a criminal or DEA investigation. We have also represented physicians in criminal investigations, search warrants and criminal cases involving pain management medications -- and our goal is to prevent such cases and investigations.

With the issue of prescription overdose deaths featured prominently in the press, physicians need to take these issues seriously even if they are board certified pain management specialists. We help practitioners ensure legitimate patients' access to appropriate pain care and the right of physicians to practice responsible pain medicine.

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

Owner of Rehabilitation Facility (CORF) Pleads Guilty To Mail Fraud For Submitting False Claims To Medicare

On June 21, 2013, an owner and chief executive officer of a comprehensive outpatient rehabilitation facility (CORF) pleaded guilty to mail fraud for submitting claims to Medicare for services that were not prescribed by treating doctors. This case had been pending for over two years since the Indictment was filed in March 2011.

This case involves Medicare billings by Fountain Valley Healthcare Center (FVHC), a CORF that Tuan Duc Tran owned and operated since 2001. Mr. Tran admitted that he submitted bills to Medicare based on false claims that Medicare beneficiaries had been referred to FVHC by a physician for physical and respiratory therapy. Mr. Tran admitted that the names of the referring physicians were falsely identified. In order for medical necessity to exist, the patients must be referred by a treating physician and these claims for payment violated Medicare rules because the treating doctors had not referred the beneficiaries for rehabilitation.

Under the plea agreement, Mr. Tran will be required to pay $777,291 in restitution to Medicare. Even though the services were provided, the entire amount collected is to be treated as a loss amount and required to be repaid as restitution. 

U.S. District Judge Josephine Staton Tucker scheduled Mr. Tran’s sentencing for November 8. The mail fraud count carries a maximum statutory sentence of 20 years in federal prison. However, under the plea agreement, Mr. Tran will be at an offense level 16 in the federal sentencing guidelines with a guideline sentencing range of 21 to 27 months although the parties can argue for a sentence outside the guideline range and Judge Tucker is not bound by the parties' agreement in the signed plea agreement.

Attorney Commentary: These health care fraud cases are often difficult for those charged to understand where the services have been provided and were even of benefit to the patients. In this case, part of the government's offer of proof was that Mr. Tran had agreed to be familiar with the Medicare rules and regulations and to comply with them. In his case, the fact that the physician names listed on the superbills were not the patients' referring physicians was one of the facts that shifted this case from a billing error case to a fraud case.

Posted by Tracy Green, an attorney specializing in representing and defending health care professionals in health care fraud, Medicare fraud and Medi-Cal fraud allegations, audits, investigations and charges. Email: tgreen@greenassoc.com  Office: 213-233-2260

Website: Green and Associates, Attorneys at Law 

California Department of Health Care Services (DHCS) Issues Temporary Suspensions Against 16 Alcohol And Drug Treatment Centers - More Suspensions To Come

On July 18, 2013, the California Department of Health Care Services (DHCS) announced temporary suspensions against 16 alcohol and drug treatment centers that are suspected of operating in violation of state and federal Drug Medi-Cal (DMC) laws. The disciplinary measures resulted from preliminary investigations of alcohol and drug treatment programs by DHCS’ Audits and Investigations Division. The investigations included reviews and onsite visits last week of 22 treatment centers.

It is believed that a total of 66 companies have been audited and that additional treatment centers have been suspended since July 18 based on reports by the Los Angeles Times. According to the Times, 29 companies that operate a total of 83 clinics have been temporarily suspended.

As DMC-certified clinics, they are reimbursed by the state for substance use disorder services provided to eligible Medi-Cal members. As a result of the investigations, the 16 centers received temporary suspensions of their Medi-Cal provider numbers, preventing them from submitting claims for reimbursement of services until investigations are complete.

"Temporary" suspensions can take over one year while the criminal investigation is pending. Temporary suspensions can result in the facility closing given that most of these programs are fully reliant on Medi-Cal payments. All 16 cases have been referred to the California Department of Justice for further investigation, which may lead to permanent sanctions (such as termination of provider number) or the filing of a criminal action.  However, the temporary suspension can be lifted early if the treatment centers can show that there is not reliable evidence of fraud or abuse. This action is the first phase of DHCS’ ongoing review of DMC, which came fully under its purview earlier this month.

 Allegations received by DHCS regarding DMC include claims that providers have hired individuals who are on the federal list of excluded providers. These individuals have been convicted of a felony or misdemeanor involving fraud or abuse in any government program, or they have been convicted of neglect or abuse of a patient while providing a health care item or service. Some centers are suspected of violating state and federal laws by providing services that are not deemed medically necessary and of fraudulently billing DMC for services that were not rendered. DHCS is working with counties, which contract directly with these clinics to provide services, to resolve any discrepancies between the actions of the centers and their billing of Medi-Cal.

On July 1, 2013, all substance use disorder programs from the Department of Alcohol and Drug Programs completed their transfer to DHCS. This allows for better coordination of the licensing, certification and program management of substance use disorder services to the benefit of individuals with substance use disorders.

Attorney Commentary Having represented Medi-Cal providers, including alcohol and drug treatment centers, who received temporary suspensions, it is critical to act quickly in assessing the merit of the allegations.  There are opportunities to seek a settlement conference and resolution with the Department especially where the allegations are weak or with little merit.

Posted by Tracy Green, Attorney
Green and Associates

California Doctor Arrested For Writing Prescriptions Without A Medical Purpose - Charges Filed in Ventura County

On July 8, 2013, after a two month undercover investigation, a physician Kiansi Boni in Camarillo, California was charged with two felony counts of violating Health and Safety Code Section 11152(a) and 11153(a) of issuing prescriptions for controlled substances (Vicodin, Suboxone, methadone, Xanax and codeine) without a legitimate medical purpose.

Section 11153(a) provides in relevant part that "A prescription for a controlled substances shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice."  Dr. Boni is alleged to have had cash patients in the practice where the patients paid for a physical exam that did not meet the standard of care before being issued prescriptions.

An additional felony count of violating Business and Profession Code Section 2052 was charged because the physician's license had been suspended during a period of time due to failure to pay child support.
Bail was set at $50,000.

This investigation began after a number of the patients were arrested for selling the opiate medications prescribed by the doctor. A coordinated investigation by Ventura County's Pharmaceutical Crimes Unit, the Medical Board and other agencies began. According to the discovery provided by the government, the doctor did not physically examine the patients to determine whether there was a legitimate medical necessity for the prescriptions.

The physician is lucky that this is a state case and that the federal drug laws are not being used to charge him with distributing controlled substances which carry much higher penalties and potential sentences. Nevertheless, these are serious charges which the Medical Board is taking very seriously and is demanding revocation of licenses where these allegations are made even where there are not criminal cases.

Posted by Tracy Green, Esq.
Email: tgreen@greenassoc.com
Green and Associates - Los Angeles, California
Office: 213-233-2260

Pharmacist Sentenced To 120 Months For Dispensing Oxycodone Outside Legtimate Medical Purpose And Not In Usual Course of Professional Practice

In March 2013, U.S. District Judge James D. Whittemore sentenced pharmacist Emmanuel Mekowulu to 10 years (120 months) in federal prison for conspiring with other persons to knowingly and intentionally distribute and dispense and cause the distribution and dispensing of oxycodone outside of a legitimate medical purpose and not in the usual course of professional practice. 

The pharmacist had dispensed over 340 prescriptions from Neurology and Pain Center clinics. The physician presigned prescriptions for people that were not patients and 60 of the prescriptions were issued in the names of employees of the medical clinic. The court also ordered the pharmacist to forfeit his professional license and the pharmacy license he held for the Felky Pharmacy.

How can pharmacists be charged with distributing oxycodone or other Schedule II drugs?  The Controlled Substances Act, Title 21, United States Code, Sections 841(a)(1) and 846 make it unlawful for any person knowingly or intentionally to distribute or dispense a controlled substance or to conspire to do so. Medical professionals, such as physicians and pharmacists, are excepted from this general prohibition as long as they comply with the legal requirements of their licenses and DEA registration.

In the cases we have seen, the issues against pharmacists are based primarily on their “corresponding responsibility” to determine that a Schedule II prescription is based on a legitimate medical need and is not outside the usual scope of practice. In the past, pharmacists were not vigilant about confirming medical need and asking for medical records to satisfy themselves once the determined the physician wrote the prescription. Now that the pharmacy world knows that some physicians will write prescriptions to patients or fake patients, it is dangerous for pharmacists to trust physicians or the patients.

Where the pharmacist did not have actual knowledge that the physician wrote the prescription for cash payment without medical necessity, the government uses the theory of “willful blindness” or “deliberate ignorance” to show that the pharmacist dispensed the prescriptions without verifying the question or validity of the prescriptions where there were obvious red flags.

The juries in these pharmacy cases are allowed to consider model guidelines, federal DEA laws and regulations, state pharmacy laws and regulations, along with all other evidence, when determining whether or not the pharmacists dispensed controlled substances other than for a legitimate medical purpose and not in the usual course of professional practice. Evidence is then presented by experts about the red flags that appeared in these prescriptions and the fact that no one followed up on these issues.  Deliberate ignorance is used to show intent to join the conspiracy to distribute oxycodone. 

There is a war on prescription drugs and pharmacists must look at each prescription and create their own protocols and procedures in order to protect themselves from civil and criminal liability in these cases. Pharmacists who dispense Schedule II narcotics should have their practices reviewed by outside counsel or compliance experts and make sure that they comply with their own policies and procedures. 

Posted by Tracy Green, Esq.

Green and Associates

213-233-2260

tgreen@greenassoc.com 

California Pharmacists: Pharmacists' Corresponding Responsibility And CURES Program

One of the biggest changes in DEA enforcement and Pharmacy Board enforcement these past couple of years is holding pharmacists responsible for "corresponding responsibility."  Certainly, pharmacists for years have known the term but now the government is beginning to charge pharmacists for knowing and intentionally distributing controlled substances as if they are drug dealers. 

We are currently handling one such federal criminal case for a pharmacist and it is something our client never thought he would ever face in his career. Cases like this are being charged across the country. The theory being used in this case and other cases is that the pharmacist deliberately ignored red flags on questionable prescriptions -- not that they "knew" is was not legitimate. 

The federal regulation for "corresponding responsibility" means that the pharmacist who fills the prescription has the same duty as the physician to determine legitimate medical need for a Schedule II prescription. Thus, pharmacists in today's world need to go far beyond determining that the prescription is valid, that a physician issued it and that the prescription has not been tampered with at all, or that the patient is obtaining prescriptions from multiple physicians. Pharmacists need to look at any red flags and document follow up on anything suspicious as well as confirm diagnoses that support the medication being dispensed and show that he or she exercised sound professional judgment.

The California Board of Pharmacy is holding a joint training with the DEA on Pharmacist's Corresponding Responsibility and California's CURES program. It will be held on July 25, 2013 in Downey, California and pharmacists and pharmacy technicians can register online. If you cannot attend that seminar, I recommend watching some of the other Pharmacy Board online seminars that have been posted.  

Physicians and the California Medical Association are concerned about the aggressiveness of the DEA and Pharmacy Board in having pharmacists challenge medical necessity for pain medications that are controlled substances. They are asking physicians to contact them if and when they cannot fill medically necessary prescriptions. 

Pharmacies such as Walgreens (who just paid the U.S. a $80 million fine for not having its pharmacists meet their corresponding responsibilities) are asking for information on diagnosis, ICD-9 codes, expected length of therapy and medications previously tried and failed. However, what does the pharmacist do if the information provided is not accurate? How far does the pharmacist need to go? 

Posted by Tracy Green, an experienced health care and pharmacist attorney. 

Email: tgreen@greenassoc.com     Office: 213-233-2260

How Do I Get Reinstated To OIG For Medicare After My Exclusion Period Has Ended?

One of the frequent issues we handle is OIG exclusion following a conviction for health care related offense.  An OIG exclusion bars a health care provider from working with any provider that received any federally funded program funds. For example, if an individual received a 5 year OIG exclusion, he or she cannot work as an employee, independent contractor or volunteer for any Medicare provider with some very limited exceptions for that time period. However, after the 5 year period it is important to know that reinstatement is NOT automatic.

We have assisted clients over the years with their OIG reinstatement. Here are a couple of facts to know. First, there is no way to obtain early termination of the exclusion time period once it has been effective. If you received an OIG exclusion notice, it is important to submit information at that time to help make sure that the period will not be longer than the minimum 5 years. If you fail to submit information at that time, you will not be able to do it later. The only exception is for emergency services. There is an appeal process.

For example, OIG sent a notice to one of our clients that because a former owner was excluded by OIG, that entity was going to be excluded. We submitted proof that the entity had been sold, that the former owner was no longer involved and that the entity should not have been excluded. If that information had not been provided within the first 30 days, then the entity would have been excluded and lost its right to appeal. Thus, if there is an exclusion letter received, act on it right away.

Second, if you have been excluded, you can begin the reinstatement process 90 days before your exclusion period is to end. If we send the reinstatement package before that date, it will not be considered.

Third, there are a number of factors that OIG considers in determining reinstatement. One of them is whether you have been providing services to Medicare providers during your exclusion period. This also includes management and administrative services. There will be a request for information as to all places you have worked and or provided services. OIG also conducts a background check. 

Fourth, remember that in California even if you are reinstated by OIG, you also have to seek reinstatement from the Medi-Cal program. When Medi-Cal issues a suspension following a conviction, it is lifetime and you must seek to be reinstated. It is best to start this process after you have been reinstated by OIG as that is an additional ground for lifting the suspension.

This is only a starting point but it is important to remember the rules regarding OIG exclusion. If an OIG excluded provider works with any Medicare or Medi-Cal provider, that provider will be strictly liable for having to repay those funds. It can also subject the excluded provider to civil penalties.

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

Respiratory Therapist Arrested For Practicing Medicine Without A License For Botox Injections And Representing Himself As Naturopathic Doctor

On June 20, 2013, a licensed respiratory therapist, Santiago Alvarez was arrested as part of an undercover investigation by the Medical Board of California’s Operation Safe Medicine Task Force. The case has been filed in the Riverside County Superior Court by the District Attorney’s Office. Mr. Alvarez has been charged with practicing medicine without a license, along with grand theft by false pretenses. Mr. Alvarez is presumed to be innocent.

It is alleged that Mr. Alvarez owned and operated LogiHealth and Rejuvenix Medical, LLC, both located in Moreno Valley, California. A licensed Respiratory Care Practitioner, he allegedly represented himself as a Naturopathic doctor “Board Certified in Anti-Aging Medicine.” As part of the undercover operation, he allegedly provided Botox injections at both locations, which by law are required to be administered by a licensed physician, or a physician’s assistant, advanced nurse practitioner or registered nurse under direct supervision of a licensed physician. It was further alleged that Mr. Alvarez used the DEA number and forged the signature of another licensed physician to obtain prescriptions.

This case shows that complaints are increasingly being referred for undercover operations. We have seen an increase in undercover agents being sent into clinics being investigated to see if the rules against the unlicensed practice of medicine are being violated.

Posted by Tracy Green, Esq.
Contact: tgreen@greenassoc.com
Green and Associates, Attorneys at Law

Medical Supply Owner & Marketer Sentenced In Health Care Fraud And Kickback Case Involving Power Wheelchairs Billed to Medicare

On June 24, 2013, two individuals were sentenced in a health care fraud case involving power wheelchairs.  Jose Melendez, the owner and operator of Oceanside Medical Services, was sentenced to 18 months in prison by Judge Huff, U.S. District Court for the Southern District of California (San Diego), for his involvement in a health care fraud conspiracy that resulted in over $1 million in false claims to the Medicare trust fund. Melendez was also ordered to pay $593,429.81 in restitution, and will be on supervised release for three years after completing his custodial sentence.

Mr. Melendez plead guilty in a plea agreement to conspiracy to pay and receive health care kickbacks and defraud in violation of 18, U.S.C. Section 371 in which the maximum penalty is five years in custody; $250,000 fine; 3 year of supervised release; and mandatory restitution.  Thus, a sentence of 18 months indicates a reduction in the potential sentence.

This case involved the sale of power wheelchair prescriptions in order to obtain Medicare reimbursement for power wheelchairs that the patients allegedly did not need and, in some cases, the patients said they did not want. It was alleged that two of Mr. Melendez’s co-defendants and alleged co-conspirators, Dr. Irving Schwartz and Gloria Hernandez, traveled to El Centro, California in search of elderly Medicare patients.

Dr. Schwartz allegedly wrote fraudulent prescriptions for the patients to obtain power wheelchairs, even though the patients did not need the equipment and could walk without assistance, and collected a $300 cash kickback in exchange for each  power  wheelchair  prescription.  Ms. Hernandez  then  sold  the  fraudulent  power  wheelchair prescriptions to Mr. Melendez, charging him $1,000 per fraudulent prescription.

Mr. Melendez, in turn, sold some of the power wheelchair prescriptions to others, charging an additional mark-up on each prescription. As the last step, Mr. Melendez and others submitted  the  fraudulent  prescriptions  to  Medicare  for  reimbursement,  billing  up  to $5,865 for each power wheelchair.

According to the plea, Dr. Schwartz wrote at least 186 power wheelchair prescriptions for Medicare beneficiaries in exchange for more than $55,000 in bribes and kickbacks. Mr. Melendez, the owner and operator of Oceanside Medical Services, purchased these 186 fraudulent prescriptions and used them to submit over $830,000 in false claims to Medicare.

Ms. Hernandez was sentenced to 6 months home confinement, and ordered to pay $160,000 in restitution to Medicare.

Dr. Schwartz is scheduled to be sentenced on August 19, 2013, before Judge Huff.  

In a separate and related case, Aristeo and Laura Tavares, who were charged in a separate case, submitted more than $250,000 in false Medicare claims based on Dr. Schwartz’s fraudulent prescriptions.  On March 27, 2013, Aristeo and Laura Tavares were sentenced to time served (1 day in custody), and ordered to pay $182,860.77 in restitution to the Medicare trust fund. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Contact: 213-233-2260

Email: tgreen@greenassoc.com