Is There Such A Thing As A "Bad" Fact In A Case?

Clients ask me all the time, is this a "bad" fact?

My response may sound a little "zen" rather than lawyer-like in that I tell them just to tell me ALL the facts and not worry for now if it's good or bad.  In a case, the only truly "bad" fact is one I do not know as I cannot prepare for it, anticipate it or explain it.

Often there are damaging facts that get worse if we do not own them and explain them or gain credibility with the judge and jury by bringing them out ourselves and owning them. I will be the one to tell the judge or jury this damaging fact. Every case has a mixed set of facts - or else we would not be in court or have a legal dispute.

When you meet with me or your lawyer, write out an attorney-client privileged chronology. Do your best to remember everything and tell your lawyer everything. Sometimes what you may think in your own judgmental head is a "bad" fact is something that helps explain what happens or that we can use to our advantage.

Posted by Tracy Green, Esq. 

How We Prepare For Your Administrative Hearing & 3 Basic Tips We Give Our Clients to Help Prepare for Hearings

Administrative and Board hearings are similar to trials, but some differences exist in procedure and practice. There is no jury and the administrative law judges (ALJ) must follow statutes, regulations, administrative procedure act (APA), constitutional requirements of due process and consider guidelines from the regulating agency. 

We encourage our clients to understand the administrative rules and procedures that will govern the conduct of the hearing since this is not simply making your "case" to the judge as if it were a jury that decides "guilty" or "not guilty." There are very different standards.

This is one of the reasons that individuals and businesses that represent themselves in pro per have a very difficult time and usually do not do well. Although the paperwork sent out by the agencies indicates that they can represent themselves it is almost universally a bad idea. At a minimum, if a client has financial restrictions and limitations, they should try to work out a payment plan with an attorney or at least pay for a consultation and find out what they need to do to prepare for their case at hearing or settlement.  

What else do you need to know if you are preparing for a State of California administrative hearing? Here are 3 things you need to know. There are many more levels but here are three basic things to know and consider:

First, you must know that if the ALJ reaches a decision that the board or bureau will not approve, that bureau or board does not have to adopt it. It is therefore important as an advocate to suggest a result and create a strong record that the board or bureau at issue will adopt. Otherwise, our client will have to start over again. 

Thus, if you have a recent felony conviction for fraud, the likelihood of going to a hearing and persuading an ALJ to dismiss the Accusation and impose no discipline would be difficult to achieve. But if it were achieved, it would be very unlikely that the board or bureau will adopt it unless the circumstances are so unusual and the record is well-established. Then you have to go through another hearing. In other words, trying a "Hail Mary" pass.

Second, we are creating a "record" with admissible evidence including administrative hearsay. We want a strong record for a couple of reasons: to have the ALJ adopt the findings we want and to have a record that will allow the board or bureau to adopt it. We push our clients to obtain evidence and expert testimony that they sometimes do not think is important but they do not understand that we want something other than their own testimony just in case the ALJ says our client is "not credible." Preparation is key. In most cases, witness testimony, without more, is not sufficient to prove your case. Exhibits, including documents and other forms of evidence such as expert witness reports, are often necessary.

This is where we seek to be creative when there are challenging facts or why we will seek to introduce a great deal of evidence in the record that can support our suggested level of discipline or findings of no discipline. This is also important for creating a record on appeal.  

Third, we help our clients know the ALJ. We gather information from other advocates about the particular practices of the hearing officer or administrative law judge if we have not previously appeared before him or her. We want to know the following:

How active a role does the ALJ or hearing officer play in taking testimony from witnesses? Some will ask questions or clean up weaknesses in the government's case. Some let you try your case.

How does the ALJ handle exhibits and administrative hearsay introduced by declaration? 

Does the ALJ or hearing officer apply any evidentiary rules? 

Is the hearing officer knowledgeable about the substantive law? 

What is the hearing officer’s attitude toward clients, witnesses, and advocates? 

Should you be prepared for anything unusual about the hearing officer’s conduct during hearings?

Make sure you practice good "Hearing Etiquette." Always arrive at the hearing on time or early. Be polite to the hearing officer and all of the parties. Comport yourself in a professional manner. No eye rolling, head shaking or displays of emotion when the judge or hearing officer is speaking or a witness is testifying. You want to show your professionalism and never compromise your credibility or that of your client by lowering your standards of professionalism or courtesy. And when we are acting professionally, understand that it will help you in the long run. Banging on the table or shouting is just for TV lawyers - an ALJ will stop listening. 

We make good records with witnesses, exhibits and persuasive testimony. We let the facts speak for themselves and that also creates good records on appeal.

For your case, you can call or schedule a complimentary 15 minute consultation. Call 213-233-2260 or email tgreen@greenassoc.com.

Posted by Tracy Green, Esq. 

Tracy Green Speaking at Business Basics Webinar on "HIPAA for Naturopathic Doctors in a High Tech World"

I am speaking and presenting today for the California Naturopathic Doctors Association. You can register and participate live with questions and answer sessions or you can register and watch later.

This seminar is designed to outline the HIPAA rules for Naturopathic Doctors practicing in the real world. The real world includes office staff that need to be trained and understand these rules since you are responsible for their conduct. Naturopathic doctors also practice in a high tech world with email, cloud storage, flash drives, laptops, and smart phones all containing protected health information. Using actual experiences from the trenches, challenging compliance issues will be used as case examples for everyone to learn from. A list of agreements your practice requires along with sample draft agreements will also be provided.

Attend this presentation to confidently:

• Understand what information must be protected under the HIPAA privacy laws
• Understand the HIPAA patient rights
• Know when patient information can be disclosed (treatment, payment, subpoenas, etc.)
• Understand what agreements you need to establish with employees and business associates
• Understand your role as a healthcare provider in maintaining privacy of protected health information for: patient care, contacting patients,  marketing and social media
• Be aware of consequences for non-compliance
• Know what to do if there is a breach of patient protected health information

Posted by Tracy Green, Attorney at Law

78 Year Old Physician Assistant Sentenced to Three Years In Prison For Medicare Fraud - Older Physicians and PAs Are Often Solicited by Suspect Health Care Businesses That Engage in Billing Fraud and Abuse

A 78 year old Los Angeles physician’s assistant was sentenced on November 24, 2018 to three years in federal prison for defrauding Medicare by signing fraudulent prescriptions and other medical documents for durable medical equipment (DME) while working at two separate medical clinics in the Los Angeles area. This was after a guilty plea and not a trial.

Erasmus Kotey, 78, of Montebello, was sentenced by United States District Judge Margaret M. Morrow. In addition to the 36-month prison term, Judge Morrow ordered Kotey to pay approximately $3.5 million in restitution to the Medicare program. Kotey pleaded guilty in March to one count of health care fraud and one count of conspiracy to commit health care fraud in two separate cases. In a plea agreement filed earlier this year in United States District Court, Kotey admitted that he engaged in a scheme to commit health care fraud while working as a physician’s assistant at a clinic  located at 866 North Vermont Avenue in Los Angeles. (A co-conspirator in this scheme was Susanna Artsruni, a North Hollywood woman who owned a medical supply company and admitted that she got unnecessary prescriptions from physician assistants at three clinics was sentenced to over 6 years in prison for causing Medicare to pay $9.6 million for the $25 million in fraudulent claims submitted.) 

In addition to his role in the scheme at the clinic on North Vermont, Kotey admitted that he engaged in a conspiracy to commit health care fraud through his work as a physician’s assistant at another clinic at 943 South Atlantic Boulevard in Monterey Park.

At both clinics, Kotey admitted that he signed prescriptions and other medical documents for medically unnecessary power wheelchairs and other DME. Using these fraudulent prescriptions, DME supply companies submitted fraudulent claims to Medicare.

Kotey also admitted that he ordered medically unnecessary diagnostic testing at the North Vermont clinic. In the two cases combined, the government alleged that Kotey’s fraudulent prescriptions resulted in approximately $7 million in false and fraudulent claims to Medicare. Medicare paid approximately $3.5 million on those claims.

Attorney Commentary: Esasmus Kotey is 78 years old and our office often sees physicians and physician assistants who are older get caught up in Medicare or other fraud cases. There are a couple of reasons for this. One is that often the older physicians or providers are vulnerable in that they are having financial problems and are looking for a position and the only places that will hire senior citizens are health care businesses that are engaged in suspect activities or want to be able to take advantage of an older person's trusting nature. Sometimes these physicians retired and due to the economy or bad business investments need to work. 

In the past. these physicians were viewed as "victims" by the government but now they are being prosecuted alongside the individuals who created and profited from the fraud scheme. The older physicians and providers usually do not make much money from these schemes. If you or someone you know is an older provider be sure to perform due diligence on any clinic or health care business before working there especially when there is billing to government or insurance programs. 


Posted by Tracy Green, Esq. 

Green and Associates' Toy Drive for Children With Autism & Developmental Challenges

TOY DRIVE TIME! 

Donate new unwrapped toys for low income children with autism & developmental challenges serviced by one of our favorite nonprofit and multidisciplinary clinic Professional Child Development Associates for speech, OT (occupational therapy), music therapy, social skills, feeding therapy, and psychological counseling. 

You can drop off at our office in downtown Los Angeles or just have it shipped to our office. If you drive to our office, let us know and we will come and meet you in the parking garage to make it easy for you.

If you read our blog and get some benefit and want to show your gratitude -- this is a way to do it. Or if you have gotten free consultations from our office, here's a great way to show your gratitude with a donation of a new unwrapped toy. 

Developmental toys preferred with no batteries. Great toys can be found for under $10. Toys or gifts needed for all ages 1-18.  

From now till Dec 21. Thanks and happy holidays!

Call us at 213-233-2260 and we will arrange for pick up or drop off.

Posted by Tracy Green, Attorney and Advocate for children with special needs.

Frequently Asked Compliance Questions About DEA Registration

Compliance with federal and state laws by health care providers (physicians, physician assistants, and advanced nurse practitioners) is critical. One of the frequently asked questions we receive is whether DEA registrants have to complete a separate registration when they practice at different locations. There is no simple answer to this question but the answer depends on whether the various locations are in the same state and whether there is any direct dispensing of controlled substances at the various locations.

What is the DEA law? It's always best to start with the statute or regulation as that is your road map.  Title 21 C.F.R. § 1301.12(a) states, “A separate registration is required for each principal place of business or professional practice at one general physical location where controlled substances are manufactured, distributed, imported, exported, or dispensed by a person.” 

Question: But I am not "dispensing," I am prescribing so do I need a DEA registration at the other locations?

Answer: Yes since under DEA law  the term "dispense" includes prescribing.Title 21 U.S.C. § 802(10) defines the word “dispense” as including the prescribing of a controlled substance.

Question: I have three offices in California where I am prescribing controlled substances, do I need a separate DEA registration for each office?

Answer: If you are only prescribing and are not maintaining supplies of controlled substances, administering, or directly dispensing controlled substances in these other locations in the same state, then you do not need to register the other offices.  21 C.F.R. § 1301.12(b)(3).

If your other practices are dispesing or administering controlled substances (even Schedule III or IV), that office needs a separate DEA registration. For example, if you have a weight loss clinic that dispenses phentermine in three different locations in the state then you need DEA registrations at each office.  Another example is that if your office injects human growth hormone (Schedule III) at different locations, then you need DEA registrations at each location. Even if you have the phentermine or HGH shipped to only one office and then have it transported to the other offices, you need DEA registration at each office.

Question: If I work locum tenens in other states do I need a separate DEA registration in that state?

Answer: Yes. You will need to obtain a separate DEA registration in each state where they plan to administer, dispense, or prescribe controlled substances.

Question: If am working solely in a hospital/clinic setting, can I may use the hospital’s DEA registration instead of registering independently with DEA if the hospital agrees?

Answer: Yes this is allowed under 21 C.F.R. § 1301.22(c).

Importance of Compliance. Make sure you are complying with all DEA registration requirements. Failure to follow them can result in discipline by the DEA and state licensing boards. One of the most common failures is for those practices that are dispensing controlled substances such as weight loss clinics who dispense phentermine. 

Compliance is not difficult but it does require setting up systems where all providers and staff must follow the rules. Failure to comply with these rules could result in criminal violations. Thus, following DEA rules helps protect everyone. We would rather focus on compliance rather than representing businesses and individuals when there have been violations but often our clients did not know the rules until there was an audit or visit by the DEA, government agency or licensing boards. Take the time and make sure you and your office is in compliance. One good thing is to review your compliance at the beginning of the year so that it is reviewed on a regular basis.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law