CALIFORNIA NURSE FACING TRIAL ON SEXUAL BATTERY ON THREE PATIENTS WHO WERE MEDICALLY INCAPACITATED

On May 10, 2013, a Riverside County Superior Court judge set a trial date for June 14  for a former male nurse, Paul Robert Simon, to stand trial on charges he sexually assaulted three patients while he worked at Rancho Springs Medical Center in Murrieta. Mr. Simon is facing six felonies in case Riverside County Superior Court Case No. SWF1300076. These allegations are not evidence and Mr. Simon is presumed innocent. 

Mr. Simon is charged with three counts each of sexual battery on a medically incapacitated person and of lewd acts by a caretaker on a dependent adult. He faces a maximum of eight years in prison if convicted as now charged.  One count was added at the preliminary hearing and alleged that a third female victim was sexually assaulted by Simon in late 2009 or early 2010. That sexual assault was reportedly witnessed by a nurse at the hospital.

The allegations are that in April 2009, a woman was admitted to Rancho Springs Medical Center and briefly was on life support. When she awoke, she had difficulty moving her body but was mentally alert. It is alleged that Simon, her assigned nurse, went to her bedside and used the woman’s hand to masturbate him. Another time, Simon allegedly touched the same victim inappropriately during a time he was bathing her. In August 2010, another woman was admitted to the hospital and was unconscious when Simon was allegedly seen by at least one other nurse reportedly inappropriately touching a woman’s  upper thigh area under her hospital gown. Simon’s employment was subsequently terminated by the hospital.

A preliminary hearing was held in this case and determine that there was enough evidence for Mr. Simon to stand trial on on all six counts. These counts are three and four years old and it will be a case that relies on eyewitness testimony. The fact that there are three patients in one case will make it more difficult to defend and the defense will have its challenges.

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, license attorney, and board hearing attorney @ tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30 minute consultation.

Tracy Green Nominated For 2013 "Women Making A Difference Award"

The Los Angeles Business Journal held its twenty-first annual Women Making a Difference Awards Reception and Luncheon event at the JW Marriott Hotel at L.A. Live in Los Angeles on Wednesday, May 14, 2013.  It was an uplifting and inspirational event, with an impressive group of Los Angeles based women who are leaders in business and the community.

Tracy Green of Green and Associates was nominated in the category of Volunteer of the Year Award, and was honored to be nominated as part of an impressive group of women leaders in Los Angeles.

Los Angeles Clinic Owner Received Lengthy Sentence In Distribution of Prescription Drugs Case

The government's war on prescription drugs -- especially those obtained through prescriptions and pharmacies -- continues. On May 2, 2013, in the Central District of California, U.S. District Judge David O. Carter  sentenced Anush Davtyan, a laypeson who operated four medical clinics in Reseda and Northridge to a lengthy sentence of 168 months (14 years) in federal prison for distributing abused prescription narcotic Oxycodone.  Her common law husband who was a named defendant is a fugitive. 

In a plea agreement filed with the court, Davtyan admitted that she and her common-law husband operated four clinics where people could purchase Oxycodone prescriptions for cash following a medical exam.  Oxycodone is sold under brand names such as Oxycontin, Percocet and Percodan.  It was alleged that the sale of drugs happened one of two ways.  The first way was that individuals outside the conspiracy purchases a prescription for Oxycodone from a clinic following a medical exam for cash.  The second way was that co-conspirators (such as cappers) brought individuals to a clinic in order to obtain prescriptions for Oxycodone. Those prescriptions were filled, and the drugs were brought back to Davtyan’s clinic and were diverted to a dealer for later sale on the street.  Davtyan admitted that she had bribed pharmacists to fill the large number of Oxycodone prescriptions generated by her clinics.

During the execution of search warrants on September 1, 2011, federal agents found 1,116 pills in Davtyan’s Encino home and another 7,589 pills in her Mercedes parked in her garage although she denied that the drugs in the car were hers.  An appeal has already been filed on the lengthy sentence in the case.  Given that this was a plea agreement, the sentence was longer than one would expect because there were allegations of obstruction of justice and role adjustment at sentencing.  

Posted by Tracy Green, Esq.  Tracy Green is an experienced Los Angeles health care fraud attorney and Los Angeles white collar criminal defense attorney who specializes in representing health care professionals such as physicians and pharmacists in criminal, DEA, administrative and civil proceedings.

Adventist Health and White Memorial Medical Center In Los Angeles Pay $14.1 Million to Resolve False Claims Act Allegations Involving Physician Referral Payments

On May 3, 2013, a qui tam federal lawsuit filed by Los Angeles physicians Hector Luque and Alejandro Gonzalez was settled with Adventist Health System/West, dba Adventist Health, and its affiliated hospital White Memorial Medical Center. 

The qui tam lawsuit was originally filed in June 2008 under seal in the Eastern District of California. Negotiations have been ongoing for some time, and on May 3, 2013, the United States and the State of California intervened on the day the settlement was announced and the lawsuit was unsealed. The lawsuit is captioned U.S. ex rel. Hector Luque et al. v. Adventist Health et al. USDC Case No. 2:08CV1271 (E.D. Cal.). 

Under the terms of the settlement, the have agreed to pay the United States and the State of California $14.1 million to settle claims that they violated the False Claims Act. The Justice Department announced the settlement.  Adventist Health is headquartered in Roseville, Calif., in the Eastern District of California, and operates 19 hospitals and over 150 clinics in California, Hawaii, Oregon and Washington.  White Memorial Medical Center is a teaching hospital located in East Los Angeles (Boyle Heights) with a significant percentage of patients on Medi-Cal and Medicare, and it is the focus of the lawsuit.

The settlement resolves allegations that White Memorial improperly compensated physicians who referred patients to the White Memorial facility by transferring assets, including medical and non-medical supplies and inventory, at far less than fair market value.  The lawsuit alleged that lines of credit to physicians were not paid back. Additionally, Defendant White Memorial allegedly paid referring physicians teaching stipends at its family practice residency program for those who referred patients above fair market value the complaint alleged that, in contrast, those physicians who received patient referrals from the hospital, such as Ob-Gyns, did not receive any teaching stipends.

The United States alleged that these payments violated the Anti-Kickback Act and Stark Statute, and by extension, the False Claims Act.  Approximately $11.5 million of the settlement will be paid to the U.S. Government, most of which will benefit the Medicare Trust Fund.   The remaining $2.6 million will be paid to California’s Department of Health Care Services.  The two physician whistleblowers in this case will collectively receive $2,839,219 of the recovery. 

As part of the settlement, White Memorial has entered into a comprehensive five-year Corporate Integrity Agreement with the Office of Inspector General of the U.S. Department of Health and Human Services to ensure its continued compliance with federal health care benefit program requirements.

This case shows the important of having loans, stipends, purchases and other business arrangements by physicians and health care providers reviewed by counsel. At least if the agreements have been reviewed and cleared by counsel, any potential issues can be flagged in advance and it can help avoid qui tam or criminal investigations since there is the defense of reliance on the advice of counsel.  

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary telephonic or in person consultation.  

Any questions or comments should be directed to Tracy Green an experienced physician attorney, health care litigation attorney, and health care fraud attorney. The firm website is: http://www.greenassoc.com/ 

Court of Appeal Upholds Utilzation Controls On Psychology Services Provided By Community Mental Health Clinic

In a setback to community health and the State of California's attempts to handle its budget issues by cutting back services to those most in need, a recent Court of Appeal decision, Mendocino Community Health Clinic v. State Department of Health Care Services, upheld utilization controls imposed by the Department of Health Care Services on psychology services at the rate of two visits per month an outpatient to a community mental health clinic. The Third District Court of Appeal ruled that this regulation does not violate the federal Medicaid Act.

The statute at issue is Welfare and Institution Code Section 14132(a) which provides that Medi-Cal, which implements the federal act, will cover outpatient psychological services rendered at a federally-qualified health center (FQHC) “subject to utilization controls.” The Department then adopted a regulation limiting Medi-Cal coverage of psychology services to a maximum of two per month.

After the two-visit-per-month regulation was adopted, Medi-Cal told the Mendocino clinics it would not reimburse them for more visits than that for fiscal years 2003-2004 and 2004-2005. The clinics sought administrative review in the Sacramento County Superior Court and won at that level by ruling that that as a “federally-qualified health center” under the act, it was entitled to payment for all necessary treatment rendered to its Medi-Cal patients.

The clinics argued that the regulation limiting payment was intended to address overbilling by individual practitioners, not by federally-qualified health centers, or FQHCs, which have a special status under the Medicaid Act. They also argued that they provide “core services” that must be paid for by Medi-Cal under federal law.

The Department appealed. The Court of Appeal overturned the Superior Court and ruled in favor of the Department. The Opinion reasoned that although federal law  requires full reimbursement for core services provided by FQHCs, it does not preclude states from enacting utilization controls in limiting the number of such visits.  

In sum, the Department cannot pay less than 100 percent of reimbursement but it can impose utilization controls. The fact that the federal legislation did not address utilization controls one way or the other was a significant factor in the Court of Appeal's opinion. 

For the mentally ill, limiting services to two per month regardless of the severity or need for treatment is contrary to the intent of federal law. 

Posted by Tracy Green, Esq., a Medi-Cal attorney in Los Angeles, California. 

California Department of Alcohol and Drug Program Ceases Operation July 1, 2013

As a part of the FY 2012-13 budget process, the Legislature authorized the transfer of the programs and functions of the Department of Alcohol and Drug Programs (ADP) to departments within the California State Department of Health Care Services, effective July 1, 2013. The transition plan can be found on the ADP website. 

The result of this reorganization will be a state administrative structure that will provide one state department for the substance use disorder system, align with federal and county partners, and promote opportunities for improving health care delivery to the benefit of consumers with substance use disorders. For those programs that are paid for by Medi-Cal, this allows DHCS to license those facilities to whom payments are made for services provided. It is also anticipated that the federal Patient Protection and Affordable Care Act will make more people eligible for insurance covered drug and alcohol treatment treatment. The Counties will also have increased responsibility for oversight. 

This will be a time for change for those facilities licensed by the ADP and we can certainly anticipate changes in licensing and regulation over time. For sober living facilities, non-medical detox facilities and related programs, it will be a time of adjustment. As prescription drug abuse becomes a greater issue nationwide, there will be more need for programs but also more scrutiny especially for the non-medical programs.

It will be important for all facilities to keep informed about program and licensing changes for those programs that are not receiving payment from Medi-Cal. For those who have a medical model where reimbursement is sought, DHCS may be more concerned with reimbursement issues than the public health issues of addiction. At one level, it is useful to have the entire program (reimbursement and licensing) under one agency. However, this will be a larger agency that has many other programs other than drug and alcohol abuse.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260.

Any questions or comments should be directed to Tracy Green an experienced administrative law attorney, health care litigation attorney, and Drug Medi-Cal attorney. She is very familiar with the issues facing facilities licensed by the Department of Alcohol and Drug Program and has represented many facilities over the years in compliance and licensing issues.  The firm website is: http://www.greenassoc.com/