The Fifth. Why Michael Flynn's Lawyer Properly Advised Him to Exercise His 5th Amendment Rights in Response to Congressional Subpoena.

No one should be in favor of overzealous prosecutions. We should also let all people exercise their constitutional rights. Even when we disagree with their politics or actions. The case of Ret. Lt. Gen. Flynn is no different. If anything, we need to be even more careful since this is a high profile case and is related to one of the most important criminal investigations in recent U.S. history. 

If I were Michael Flynn's lawyer and he were subpoenaed to Congress, what would I do? Have him do exactly what was done by his lawyer - exercise his 5th Amendment right against self-incrimination. Doing anything else would be legal malpractice in my view unless there were a solid immunity agreement. Even the request for documents is a problem since there are testimonial issues in identifying and producing documents that relate to his 5th Amendment rights.  

First, don't let a client testify or be interviewed when there's a criminal investigation. Simple. Don't care if he looks guilty. Gotta do it. If you don't it's malpractice or folly. You cannot care about the "optics" or that "someone will look guilty." Clients have a hard time understanding it but it is critical to not give into that type of thinking. I would lay down in the street outside my office in downtown Los Angeles before I'd let a client testify under these circumstances.

I would have Mr. Flynn exercise his 5th Amendment rights for numerous reasons. Let us just use his public FARA filings as one basis since we can review them.  To look at the issue, just take a look at the Mr. Flynn's Supplemental Foreign Agent Registration Act (FARA) filings on 3/7/17. They were signed by him electronically under penalty of perjury. Read them if you like [here's the FARA document search link], type in Flynn, click and see what you think. 

Walgreen Paid $9.86 Million to Settle False Claim Allegations of Improper Medi-Cal Billings for Code 1 Drugs

It's not just small pharmacies that get false claims (qui tam) cases. The chains are ripe targets for cases but they have the resources to defend, pay settlements and stay in business. A recent case shows that even large pharmacies will settle rather than go to trial in these cases.

On April 20, 2017, Walgreens paid $9.86 million to resolve civil lawsuit allegations that it violated the federal False Claims Act when it knowingly submitted claims for reimbursement to California’s Medi-Cal program for Code 1 Drugs that were not supported by applicable diagnosis and documentation requirements. There were no admissions. 

This settlement surrounded the nuances of pharmacy billing for Medi-Cal. Medi-Cal utilizes a formulary list, commonly known as “Code 1” drugs, which designates certain restrictions for each listed drug, including restrictions pertaining to diagnoses. Medi-Cal will reimburse certain Code 1 drugs only for approved diagnoses, taking into account criteria such as the drug’s safety, efficacy, misuse potential, and cost. Pharmacies confirm and certify that these Code 1 drugs are dispensed for the approved diagnoses. Walgreens may bill for drugs prescribed outside of the approved diagnoses, but it must submit a request to DHCS that includes a justification for the non‑approved use (often called a TAR).

California Dermatologist Indicted For Health Care Fraud for Allegedly Billing Microdermabrasions or Chemical Peels Performed by Staff as Acne Surgeries to Private Insurers

The number of prosecutions for health care fraud involving private insurance is on the rise as shown by a recent case. 

In years past, the insurance carriers would have audited and demanded a repayment or cancelled their contract. That has definitely changed.

On May 11, 2017, a Fresno federal grand jury returned an eight-count indictment for health care fraud against dermatologist Dr. Basil Hantash who is the medical director of Advanced Skin Institute (ASI) in Turlock, California. 

According to the Indictment from 2011 through April 2016, Dr. Hantash submitted claims to private insurance companies requesting payment for performing acne surgeries. It is alleged that staff at ASI had performed only "cosmetic" procedures known as microdermabrasions or chemical peels.  

California Oncology Therapy Center Pays $2.8 Million to Resolve Allegations of Providing Radiation Treatments Without Radiation Oncologist Present

The nuances of "incident-to" billing and the alleged lack of physician supervision from 2006 to 2015 at one of its locations is at the heart of a false claims settlement between Valley Tumor Medical Group Oncology and the United States. The case is United States ex rel. Shindler v. Valley Tumor Medical Group, et al., CV 15-2249.

Valley Tumor paid $2,865,693 to the United States and $134,307 to the State of California on April 13, 2017 to resolve allegations in the lawsuit that it submitted fraudulent bills to the Medicare, Medi-Cal and TRICARE programs when it did not have the required supervision at its Ridgecrest location (which is now closed).  

California Oxygen Equipment Provider Pays $11.4 Million To Resolve Allegations of False Claims and Cross-Referral Kickbacks With Sleep Clinics

On April 25, 2017, Braden Partners, L.P., doing business as Pacific Pulmonary Services,  a DME based in California, has agreed to pay $11.4 million to resolve allegations against it and its general partner, Teijin Pharma USA LLC, to resolve a False Claims Act (qui tam) lawsuit filed in federal court in San Francisco.  

The lawsuit resolved by the settlement contains allegations only and there has been no admisison of liability. 

Pacific Pulmonary Services is a DME home medical business and provides stationary and portable oxygen tanks and related supplies, and sleep therapy equipment, such as Continuous Positive Airway Pressure, Bilevel Positive Airway Pressure masks and related supplies, to patients’ homes in California and other states.  

The qui tam lawsuit was originally filed by Manuel Alcaine, a former sales representative of Pacific Pulmonary Services. The government intervened and took over the action, as it did in this case.  In this case, Mr. Alcaine will receive a hefty $1,824,000 of the settlement funds. This is why compliance plans are needed since former employees can file a lawsuit any alleged wrongdoing and profit from it instead of having to report it to the company before they quit or are terminated.  

Orange County Workers' Compensation Fraud Cases Plead Out. Aspen Durable Medical Equipment Owners Get Minimal Jail Time, Pay Over $8 Million in Restitution and Dismiss $139 Million in Liens at WCAB

In criminal fraud cases, restitution is usually key to obtaining favorable plea terms. In workers' compensation fraud cases, releasing the right to collect on liens or receivables at the Workers' Compensation Board is also an important part of plea deals especially in light of Labor Code 139.31. 

This is evidenced in two complex workers' compensation fraud cases, known as the Aspen Medical DME cases, which plead out on May 5, 2017 in Orange County Superior Court. 

The three individual owners -- Jeffrey Edward Campau, Landen Alan Mirallegro and Abraham Khorshad -- agreed to pay jointly $8,621,845.96 in restitution, dismiss liens (charged and uncharged) worth over $139 million and pay other penalties in exchange for county jail terms (with state prison suspended) and where they will be eligible for house arrest with electronic monitoring. 

Owner of Holter Labs, Cardiac Monitoring Services Company, Convicted for Health Care Fraud for Billing for Services Not Performed

On May 2, 2017, Michael Mirando, an owner of Holter Labs, which provided cardiac monitoring services, was found guilty after a week long federal trial of 15 counts of health care fraud for submitting bills to insurance companies for tests and services that were never performed from 2009 to 2016. 

This case was before Judge Percy Anderson and sentencing is scheduled for August 21, 2017.  After the jury verdict, Mr. Mirando signed a stipulation indicating that his home had been bought with proceeds from the business and thus there will likely be a forfeiture component to this case which can be used for restitution.  

Holter Labs was a company that provided physicians with equipment for cardio monitoring and let the physician bill the patients' insurance for the professional components (hookup and interpretation) and the company billed for the technical component. The government presented evidence that Holter Labs submitted bills for services never ordered (such as 30-day tests) and for services the devices could not perform (such as brain scans and oxygen studies). The government alleged that $7 million in billing was for services never performed and $1 million was for duplicate date of services and that Holter Labs collected at least $2.5 million on these false claims.

These type of companies have been under scrutiny even without alleged false billing. Companies offer physicians a revenue stream where they send the equipment for free to the physicians' offices, have the data downloaded for the physicians who get to bill for the professional component. Since holter monitoring is not a designated health service the Stark rules do not apply but it should be determined whether providing the software and printing reports could be consideration for the referral of the technical patient billing. Any arrangement with the companies should be reviewed for compliance.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Email: tgreen@greenassoc.com

Work: 213-233-2260

     

Los Angeles Dermatologist Pays $2.6 Million to Resolve False Claim Allegations He Billed Medicare for Unnecessary Mohs Skin Cancer Surgeries

On April 10, 2017,  Dr. Norman A. Brooks, M.D., the owner of The Skin Cancer Medical Center in Los Angeles paid the United States $2,681,400 as part of a settlement to resolve allegations that he submitted bills to Medicare for Mohs micrographic surgeries for skin cancers that were medically unnecessary. In settling the case, Dr. Brooks did not admit liability in the matter.

As part of the settlement, Dr. Brooks and his entity entered into a three-year Integrity Agreement with the U.S. Department of Health and Human Services, Office of Inspector General. Under the Integrity Agreement, Dr. Brooks will establish and maintain a compliance program that includes, among other things, mandated training for him and his employees and review procedures for claims submitted to Medicare and Medicaid programs.

The settlement resolves allegations made in a lawsuit filed by Dr. Brooks' former Brooks employee Janet Burke under the qui tam, or “whistleblower,” provisions of the False Claims Act, which permit private parties to sue on behalf of the government and receive a share of any recovery. For her role in the case, Ms. Burke will receive $482,652.

          

The lawsuit alleged that Brooks falsely diagnosed skin cancer in some of his patients so that he could perform, and bill for, Mohs surgeries. Mohs surgery is a specialized surgical procedure for removing certain types of skin cancers in specific areas of the body, including the face. The surgery is performed in stages during which the surgeon removes a single layer of tissue which undergoes a microscopic evaluation. 

The surgeon performs additional stages, if necessary, until all of the cancer is removed. Given the complexity and time required to perform the procedure, Mohs yields a higher Medicare reimbursement than other procedures used to remove skin lesions.

Dermatology is under greater scrutiny by government billing programs (Medicare, TriCare, etc.) and we have seen an increased rate of audits. A compliance plan is never too late to start and can help prevent whistleblower cases when a practice self-reports or discovers the employee's allegations during employment or at an exit interview.

Posted by Tracy Green, Esq.
Email: tgreen@greenassoc.com
Work: 213-233-2260