Orange County Psychiatrist Sentenced to More than Four Years in Federal Prison for Writing Illegal Opioid Prescriptions to Drug Dealer

On June 19, 2019, a psychiatrist who practiced at a Santa Ana clinic was sentenced to 57 months in federal prison for issuing prescriptions for controlled substances, such as oxycodone, hydrocodone, alprazolam and amphetamine salts, to a non-patient in exchange for cash, admitting in his plea agreement that the prescriptions were without a medical purpose and he knew the drugs would be diverted and sold on the street.

Dr. Robert Tinoco Perez was sentenced by Judge Andrew J. Guilford. Dr. Perez pleaded guilty on February 25, 2019 to one felony count of conspiracy to distribute controlled substances.

Dr. Perez admitted that he wrote prescriptions for “patients” he had never met or examined, including an undercover officer. Dr. Perez admitted that he created fictitious medical records for drug customers to provide justification for their prescriptions.

Colorado Doctor Convicted Of Health Care Fraud and Obstruction of Justice. Admitted Shredding Patient Charts During the Investigation.

A recent health care fraud trial focused on patients' insurance being billed for procedures not performed or with extensive patterns of upcoding as well as obstruction of justice for shredding charts during the investigation. On April 18, 2019, Dr. John Van Wu of Golden, Colorado was found guilty of mail fraud and obstruction of justice charges by a jury. The federal jury trial lasted one week before U.S. District Court Judge R. Brooke Jackson.  

According to court records and argument at trial, Dr. Wu operated a medical clinic at locations in west Denver between January 2011 and March 2015.  During that time period the government alleged that he billed employee benefit programs and insurers for services that were never actually rendered and not medically necessary.  

The obstruction charge arose from when he responded to a grand jury subpoena asking for patient files.  During the trial, over a dozen of the doctor’s former patients testified that they did not have many of the ailments described in those files and did not get the expensive procedures billed to insurance.  For example, the patient files described days-long nosebleeds followed by nasal cauterization procedures, but patients testified that neither happened.  Other files described diagnoses related to migraine headaches and frequent administrations of injections to treat those agents.  Patients testified that those, too, did not occur.  The government alleged that the patient files were fabricated.

Testimony at trial also supported the government's theory that Dr. Wu billed approximately 95% of his office visits as the longest, most complex, and highest-reimbursing type of office visit, despite the fact that his patients had relatively simple and routine ailments that did not need that level of service.  During his testimony, Dr. Wu admitted that he shredded patient files while the investigation was ongoing.

This is not the end of Dr. Wu's legal issues. He is separately charged with distributing oxycodone outside the usual course of medical practice and for no legitimate reason and for obstruction by falsifying patient charts related to those prescriptions.  Trial on those counts is scheduled to begin on July 8, 2019.

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

Durable Medical Equipment Supply Owner and Operator Plead Guilty in Case Involving False Statements to Medicare About Inhalation Drugs Being Non-Compounded Drugs

Compounded medications and drugs have been under close scrutiny the past number of years. Claiming a drug is not compounded when it is compounded can be a "false claim" subjecting a business and its owners or managers subject to criminal prosecution and civil penalties. 

A recent case involving a durable medical equipment company and compounded inhalation drugs billed to Medicare shows what can happen where the drugs are not characterized properly on claims forms in order to avoid new billing rules.  

The rule being avoided was that as of July 1, 2007, Centers for Medicare/Medicaid Services revised nationwide policy regarding compounded inhalation solutions. After July 1, 2007, all compounded inhalation solutions were denied as not medically necessary for dates of service on or after July 1, 2007. 

Sacramento Dentist Pleads Guilty to Billing for Unnecessary or Unperformed Dental Work Billed to Delta Dental From 2008 to 2010

We have seen an increasing number of audits by Delta Dental where billing for services not provided is suspected. In some cases, the issue is that non-covered services (such as implants) are being performed and there is false documentation and billing for "covered" services. Or we have seen that one patient has dental coverage and work is performed on another family member who does not have coverge.

What triggers audits? It can be discrepancies in records, significant increases in billing, or complaints by former employees or patients. Or it can be a routine audit. In a recent case, a former employee went to the Dental Board to set forth allegations against her former dental office. That disclosure triggered action by the Dental Board (interim suspension), an Accusation and then a federal criminal case. It took five years for this to play out. In the meantime, the dentist surrendered his license in August 2013.

This recent case demonstrates what can happen in these cases. Dentist David M. Lewis of Sacramento pleaded guilty on January 11, 2016 to health care fraud for his role in defrauding the health care benefit program used by United Parcel Service (UPS) employees. Undoubtedly, this has been a long hard road for the now former dentist.

A former employee at Lewis’s dental practice for 9 years, Nichol Ramirez aka Nichol Lomack, who worked as an insurance claims manager, cooperated with the Dental Board and government. She ultimately pleaded guilty to one count of health care fraud for her part. She was interviewed by the Dental Board in December 2010 and the case went from there.

In October 2011 the Dental Board executed a search warrant at the dentist's office. The search warrant was used so that the dentist would not have advance notice and have any ability to alter or destroy the charts. After the charts and xrays were submitted for expert review, the Dental Board filed an Interim Suspension Order in February 2012 and filed an Accusation. In August 2013, Dr. Lewis surrendered his license. In February 2014, Lewis was indicted on health care fraud and conspiracy to commit health care fraud and mail fraud.

According to court documents, beginning in late 2008 or early 2009 (after the economic recession), Dr. Lewis, a dentist practicing in Sacramento, began targeting UPS employees for dental treatment because their health care plan under the Northern California General Teamsters Security Fund provided 100 percent coverage without any annual limits. Dr. Lewis' office allegedly offered cash and other incentives (Sonicare toothbrushes for example) to UPS patients for receiving dental treatment or for recruiting other UPS employees to receive such treatment.

In some instances, Dr. Lewis' office submitted claims to Delta Health Systems, which administered the UPS health care plan, that billed the plan for work that was never performed. In other instances, it was alleged that Dr. Lewis performed unnecessary dental work on UPS employees, including root canals, and claims were submitted to Delta for payment for these unnecessary services.

Four Home Healthcare Workers in Missouri Charged with Defrauding Medicaid - In Home Supportive Services Fraud

State programs pay home health care workers (IHSS in California) to take care of the non-medical needs of elderly and/or disabled patients who qualify for SSI. These services are performed at the patients' own homes since it is much less expensive than placing these patients in assisted living or nursing homes. 

This can be a great program. However, the concern about fraud threatens it. In addition, the individual providers are being targeted. These are not large companies but individuals who are often low paid workers. This article is to remind those providers to be careful and not to submit documents with false billing or entries on them regardless of the temptation. In California, it is considered Medi-Cal fraud.

Let's be clear. States are aggressively going after fraudulent billing in the home setting. California usually brings charges in state court but we can expect federal charges as well. Missouri just charged four individuals in federal court for billing for services not provided in November 2015, and they are expected to be sentenced in early 2016 following guilty pleas.

Ohio Cardiologist Convicted at Trial and Sentenced to 20 Years in Federal Prison for Overbilling Medicare and Private Insurance & Allegedly Performing Unnecessary Procedures

Prosecutors are more aggressive in pursing physicians for criminal charges where just a few years ago the charges would be civil cases or administrative requests for overpayment. A high profile case out of Ohio went to trial for about three years, ended up with a jury convicting an Ohio cardiologist on 15 counts, and now a long sentence has been handed out.

Dr. Harold Persaud, 56, a cardiologist, was sentenced to 20 years in prison on December 18, 2015, for allegedly performing unnecessary catheterizations, tests, stent insertions and causing unnecessary coronary artery bypass surgeries from 2006 to 2012. The government's case was that this was part of his fraudulent billing to Medicare and other insurers.

One of the issues that arises in almost every criminal case against physicians is the issue of whether records have been falsified or whether there has been some false billing. This case was no different. Even a small percentage of false billing or fabricated records can serve to taint the case when viewed by the jury. Thirteen of the counts against the doctor were for making false statements. He was acquitted of one count of making a false statement. There was a monetary structuring charge as well of which he was convicted and this was probably brought in so that the government could argue the motive was financial or "greed."

When physicians in large practices review the allegations, one can see why compliance plans that include review of charts and billing can help prevent criminal cases. This can be more problematic with the electronic medical recordkeeping (EMR) templates that can make the charts look very similar due to the use of templates.

The government prosecutors claimed that Dr. Persaud, who was no longer practicing by the time of trial, allegedly did the following:

1. Dr. Persaud allegedly selected the billing code for each patient submitted to Medicare and private insurers and used codes that reflected a service that was more costly than that which was actually performed (known as "upcoding");

What Should Health Care Providers Do To Prepare For Or Help Avoid An Audit By Medi-Cal, Medicare Or Private Insurance Companies?

If you are a health care provider with a Medicare or Medi-Cal provider number -- especially in Southern California --chances are you WILL be audited or have an on-site visit at some point over the years. The audits and on-site visits (sometimes unannounced) have increased dramatically over the past years and will continue to increase as the state and federal governments face budget problems. In addition, the private insurers who administer Medicare are required by their contracts with the government to audit whether they suspect improprieties or not.

Your practice may also be subject to audits from insurance companies and health maintenance organizations (HMOs). The audit must be taken seriously since it can result in an overpayment being assessed and/or adverse administrative history. However, do not panic. Although it can seem like an intimidating event, you can increase your chances of prevailing and not having an unfair overpayment amount assessed if you prepare for any potential audit in advance and handle it properly once the request is made.

Here are some strategies and tips for helping you not only survive your audit but being prepared and prevailing to the greatest extent possible:

1. Prepare Your Staff In Advance For Understanding That Audits Are Part Of The Healthcare Business. Providers and the staff often erroneously assume that if they are being paid for claims that everything is correct and they are doing everything right. Not so. Medicare and Medi-Cal pay the provider on a "good faith" basis and reserve the right to audit. Private insurers, on the other hand, often require pre-approval before payment. Thus, it is critical that your entire staff understand that the best defense against audits is good charting, documentation, proper coding, and avoiding any upcoding, billing for services not provided or documented or anything else that may be characterized as fraud or abuse.

Once everyone understands that audits are part of the process it also helps them take control of the audit process and not let fear prevent them from handling it professionally. Most Medicare and Medi-Cal audits fall into one of three broad categories:
(1) an audit during the application or updating of application process where there is an on-site visit and review of business records and typically only a limited number of claims;
(2) prepayment audits (most common in Medicare), in which a review of claims is conducted before Medicare pays the physician, where carriers typically want to look at only one or two claims from each physician; and
(3) post-payment audits.

In a comprehensive post-payment audit or review, the carrier reviews a small statistical sample of claims and uses the results to calculate a projected overpayment for a period of months or years.

2. Identify In Advance Who Is Authorized To Speak To Auditors And Any Other Person Or Investigator Who Visits The Office In An Announced Or Unannounced Visit. First impressions count and this applies to audits and other visits by regulators or investigators. You will be better prepared if you determine in advance who is permitted to speak to government auditors or regulators. For example, you do not want the receptionist interviewed about your office's policies and procedures since anything he or she says may be used in your audit.

Establish a procedure that only an office manager, the provider or the health care lawyer are allowed to meet and discuss anything with the auditor or regulator. The other staff should be limited to contacts about establishing times and dates available for meeting unless and until they are instructed to do so by the designated persons in charge of the audit. There are many horror stories about staff meeting with auditors or regulators while the provider is out of the office and giving misinformation which was later used against the provider.

3. In Order To Anticipate An Audit Or Prevent An Adverse Audit, Understand Fully How The Medicare Or Medi-Cal Program Operates. Providers often assume that billers and office staff know how the Medicare and Medi-Cal programs operate when this is often not the case. Billers are used to working from superbills and entering codes without analyzing whether all the program rules are being followed. It should be understood by all that these programs will only reimburse "reasonable and necessary" services where there is the required documentation -- even if the services were provided. If the documentation is not present in the file -- it will be presumed that the service was not provided or that it was not medically reasonable and necessary.

We suggest that the providers have the billers and office managers create a thorough notebook regarding each of the procedure codes billed that contains the printed portions of any relevant manuals about what constitutes 'reasonable and necessary services' as defined by Medicare or Medi-Cal and what documentation is required for these services. It is then necessary to have the providers and anyone who sees patients or provides services read and understand these requirements. In addition, the provider needs to be aware of what your local carrier wants claims forms and patient records to contain because the requirements vary.

The provider may have worked in a hospital or private setting where the documentation requirements are different from private Medicare or Medi-Cal and not realize they are failing to properly document the file. For example, state law and private insurers may allow a physical therapist assistant or physical therapy aide to perform certain tasks in physical therapy while Medicare's billing and reimbursement policies and procedures may not pay for the same treatment by these assistants or aides for Medicare treated patients. Such information typically is contained in the Medicare manual and the local carrier's local medical review policy which are all available online.

Above all else, maintain complete documentation in patient records to substantiate the services billed. Record symptoms and diagnoses, details of the services and level of care provided, and complete progress notes. Medicare considers lack of corresponding documentation as evidence that billed services were not reasonable and necessary. The auditor will consider any related reimbursement as an overpayment and require the provider to refund the applicable amount.

There should be periodic internal reviews of files and education to ensure that the documentation is being done properly. Even if this billing and procedure code notebook and research was not done before the audit, prepare it at the beginning of the audit so everyone at the provider's office is prepared and knows the billing and reimbursement policies. Often during the audit, auditors will be mistaken about documentation or medical necessity requirements.

4. Have A Health Care Attorney To Whom You Can Send Any Audit Letters Or Whom You Can Contact Anytime There Is A Visit And Request For An Interview. If you receive a letter or visit from your Medicare or Medi-Cal carrier requesting a number of charts or records, contact your attorney immediately and fax him or her the letter or business cards of the visitors. Even if the attorney only needs to be minimally involved in most of the audit and file preparation, you need an objective person to ensure that the audit is handled in the best manner possible.

It is often easier for the health care attorney to speak with the auditors and set up a timetable for any interviews or to ensure that there is sufficient time to respond to the request for documentation. In most cases, thirty or sixty minutes of a qualified health care attorney's time at the beginning of the audit is well worth it since it will reduce the risk of overpayment, help reduce the provider's time and help ensure that the audit goes smoothly and that a good impression is made.

Resist the temptation to think that if a health care attorney is involved that an auditor or regulator will think that something is "wrong." In fact, the opposite impression is given: the provider is sophisticated, professional and has an established method for responding to audits. This is especially important in "unannounced" visits where it is easier for a health care attorney to be objective and take control of the situation where an auditor simply shows up and demands records and interviews at that moment. The health care attorney can also address regulatory issues that may be beyond the provider's expertise.

5. Read Any Letters Or Lists Carefully And Make Sure You Understand What Is Requested And See If There Are Any Patterns. This is another reason to send an audit or similar letter to your health care attorney so you understand what is requested. For example, assume that records for specific dates of service are requested as to a certain number of patients. Make sure that you also send in any other documentation that would support the services rendered on that day. This could include laboratory results, X-ray reports, photographs, consultations from other physicians, etc.

When reviewing the audit letter, especially if the letter requests multiple charts, see if there seems to be some type of underlying pattern or theme in the chart notes. Were the requested patient charts all billed for one particular code, all referred by a certain physician, or is there some other pattern? This will assist you in better addressing the concerns of the audit -- which may not be told to you directly by the auditors.

6. Determine With Your Health Care Attorney Whether You Need An Expert Witness Or Coding Expert During The Audit Process. Your attorney and you should consider hiring a coding expert to review the charts, preferably before you submit them to the auditor or carrier. If the expert cannot complete the review before the deadline for producing the records, the attorney will ask for an extension or simply have the expert conduct his review at the same time that the carrier does. Your attorney should have the review done under the attorney work product privilege so that the results will be confidential. One excellent preventative measure is to have a coding expert review charts periodically so that you know that your practice is in compliance with billing and record requirements. This can also be part of a compliance plan.

7. Take Control Of The Audit. Make Sure Records Are Complete. Review Charts And Records Carefully Before Copying Them Or Providing Them To Auditors. The auditors or regulators do their best to put the burden on the provider to prove that the services were properly documented and coded. Remember that the auditors are often not medical personnel even if they have some medical training. The auditors will often ask for the charts right away in unannounced visits.

Take your time and ensure that all reports, notes and other information are in the chart before you produce or copy it. Look for other records such as sign in sheets that will also be relevant to the audit. One of the most important things to do in preparing to respond to an audit is to ensure that the records are complete. One of the best ways to do this is to meticulously compare each medical record with its corresponding billing record. Remember, the billings are where the government’s investigation began. You can ensure that there are records for each of the dates billed, identify coding issues and have a better idea how to proceed in the audit.

Another important step is to make sure you produce the complete records. It is not enough to have them but you need to produce them and have records of the production. If you fail to produce records requested, you can be penalized financially or with adverse action against your provider number. If the auditor or regulator agrees you do not need to produce certain records or documentation, you or your health care attorney should document this agreement. It is important to document what is produced since you will be creating an administrative record. All records and documentation produced should be accompanied by a memorandum or letter itemizing the records produced and either delivered in person or with a return receipt or overnight service as proof of delivery.

8. Do NOT Alter The Records. If you need to supplement the records, make sure you do not back date or alter the records. Altering records can cause problems much worse than overpayments -- Medical Board complaints and discipline. Seek the advice of counsel when it comes to supplementing records or there is any issue about missing records.

9. Understand What Circumstances Might Can Trigger An Audit. Audits can provide an education. They can be stressful, especially if the outcome is unfavorable. However, they can offer tremendous amounts of information and educational opportunities for your office. Try to remain positive while you go through this process. What are some common triggers of audits?

■ High or excessive use of specific CPT codes. Sometimes excessive use of certain ICD-9 codes may also trigger audits. Generally, doctors who are outside the bell curve with regard to billing practices may get flagged on internal carrier audit screens.

If your practice tends to be more specialized (perhaps you specialize more in geriatric patients), you will, by the nature of your practice, be billing certain codes more frequently than the other doctors in the community who have a more broader-based practice pattern. You will want to explain these issues to the auditors. Do not be afraid to bill for specialized services or think that you will avoid an audit by underbilling or billing at the lower code. Just be extra careful in the documentation. Do not alter proper billing protocols just to try to stay under the radar. Bill for what you did and let the chart defend you.

Importantly, don't stress to the auditors how you provide services for "free" and underbill. That does not help your audit in most circumstances. Are you billing for codes where you are using new technology? Did you change your practice patterns to become more specialized so that your billing patterns changed? Did you add new diagnostic or therapeutic machines to the practice? Did you purchase a practice? If so, you may flag out on a statistical basis. Explain your billing and practice changes to the auditors and the best defense is a well-documented file. Use the research notebook described above to ensure you are complying with all the documentation and medical necessity requirements.

■ Do you have an unhappy patient or patient's family? If you have an unhappy patient, review the bill if the patient had a bad outcome or received an unexpectedly large bill. Sometimes collection practices or a bad outcome can prompt a patient to launch a complaint that generated the audit. To avoid such problems in the future, make sure the patient knows upfront about the costs. Speak with the biller or collection service to alter methods of collections. Consider formulating a payment plan with the patient or allow patients to pay with a credit card. If one of the patients was unhappy, raise this with the auditors.

■ Do you have disgruntled current or former employees? All it takes is a complaint from a current or former employee to trigger a fraud audit or other review. The employee may try to get revenge and the best way to prevent this from occurring is to do the following:

--have a compliance plan that requires the employee to report suspected fraud and abuse during employment;

--conduct exit interviews where employees are asked about any suspected fraud or abuse;

--have written employee policies and maintain personnel files;

--have regular office meetings to review policies;

--address small issues before they escalate to large ones;

--make everyone in the office feel like part of the team; and

--educate the employees regarding billing and documentation requirements so that they do not mistakenly think that something is being done improperly.

If you suspect that a current or former employee triggered the audit, bring the disgruntled employee up in the audit and explain why he or she is not credible if he or she is the source. The auditor may not identify the complainant but this may help defuse the employee's allegations.

■ Are You Overusing Pre-Printed Forms Or Template Shortcuts? Be careful with the use of templates especially in electronic records. Although templates are acceptable charting methods, they can look very repetitive, especially when it comes to routine care and services. Each chart note should clearly reflect the chief complaint, history, examination and treatment you rendered on that date for that patient.

Cutting and pasting templates/macros from previous dates of service and simply using that language again in subsequent chart notes does not necessarily indicate what happened on that specific date of service. It makes for a bigger charts but once it looks repetitive or like filler, it can cause an issue with the audit where your office might be characterized as a "mill" or you are questioned about the amount of time spent with the patient.

Look for these triggers and others as they will help you defend the audit. Do not be afraid of negative facts or problems that you have found. If there are weaknesses or mistakes, discuss with your health care attorney whether you should concede certain issues at the audit level for credibility reasons. Do not assume that if you admit certain problems that the auditors will be fair to you or not seek overpayment. You need to have a strategy and having an outside objective person such as a health care attorney can be useful so you do not make a tactical mistake that could cause later problems or result in an overpayment.

10. Be Professional. Treat the auditors with respect even when you disagree with them or their position. This is another reason to have an objective health care attorney for you to rely upon. It is easy to get emotional and defensive when your medical services seem like they are under attack and you already feel underpaid by the carriers.

11. Maintain A Notebook Of Administrative And Professional Records. In advance of the audit, have a notebook or file with all the key documents you need for an audit. You will be prepared and then update these on an annual basis at the beginning of the year. These records include but are not limited to the following:

--All Medicare and Medi-Cal applications and supplemental applications (see if there is an issue with failure to update these applications);

--Malpractice insurance, workers' compensation insurance; liability insurance and any other insurance required by the programs; --Copies of all licenses held by providers and staff;

--Other business documentation required by the programs such as office leases, contracts with laboratories, contracts with suppliers, etc. (this will depend upon the type of provider);

--Equipment lists where the equipment is diagnostic or used for billing; and

--Any other documentation required by the program and its manuals.

12. Request An Exit Conference Or Meeting Upon The Conclusion Of The Audit. Depending on the type of audit or visit, you want to have an exit conference or meeting where you can address any outstanding issues in the audit. You also may want to or submit a letter that is reviewed or drafted by your health care attorney showing that you have fully complied with all record requests and documenting any positions regarding coding, billing, medical necessity or other issues that have arisen. Having an excellent record of your submissions will be important to obtaining a favorable result and creating a good record if there is a subsequent hearing.

13. Conclusion. Audits happen to all providers. It does not necessarily mean you are a bad provider or that you should immediately leave the Medicare or Medi-Cal programs. With increasing financial pressures on health programs and practices, it is important to be forward thinking and create compliance plans and self-audit so your practice does not get assessed an overpayment.

During the audit, do your best to turn a potentially negative situation into a positive learning experience to correct any legitimate problems that the audit may uncover as well as to minimize the chance of future audits. Being stubborn and continuing to bill improperly will not help your practice. The carrier may still monitor your subsequent claims to see if your billing practices have actually changed and comply with the program's rules and regulations. Be proactive, anticipate audits in advance and handle audits intelligently and you will prevail to the greatest extent possible.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  

Any questions or comments  should be directed to Tracy Green, a very experienced California administrative law attorney, Los Angeles Medicare audit attorney, and Los Angeles Med-Cal attorney.The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in audits, administrative board and discipline matters in California and throughout the country. Our website is: http://www.greenassoc.com/

Seven Important Guidelines On Completing Board Applications And Renewals

When you are applying for a license (or renewing one) from the California Medical Board, State Bar, Department of Real Estate, Department of Pharmacy, Board of Registered Nursing or any other state agency or any employer that is required to report to state agencies or databanks (such as hospitals), all applicants need to remember the following basic guidelines:

1. When you sign the application, you are certifying that all the information is accurate. In most of the applications and renewal forms you are declaring under the penalty of perjury that all the information is true and correct. This means it is as if you are under oath and promising to tell the truth.

2. If you do not complete the form accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. If you give inaccurate information on a renewal, this can be grounds for discipline and constitute unprofessional conduct.

3. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. For example, if the question asks if you have a conviction, find out the definition of "conviction" since any expunged or deferred entry of judgment criminal cases will probably count as "convictions."

4. Some of the questions are vague or ambiguous - err on the side of caution and full disclosure. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation.  If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. In addition, explain that you believed there was an ambiguity and set that forth so there is no confusion.

We also suggest having an experienced licensing attorney review your application for language and explanations to ensure that it is accurate but setting forth your position in the best light. The time and expense is well worth the chance of being denied a license for intentionally misleading the licensing board. Since an attorney is objective and experienced in writing these explanations, this can help a great deal. Often people are emotional, embarrassed and have a tendency to minimize or focus on irrelevant facts which makes their statements of explanation hurt them rather than help them. 

For example, let us take a question from the Nursing Board's actual application:

Question: "Have you ever had disciplinary proceedings against any license as a RN or any health-care related license or certificate including revocation, suspension, probation, voluntary surrender, or any other proceeding in any state or country? If yes, please provide a detailed written explanation, including the date and state or country where the discipline occurred."

Ambiguity: The first part of the question asks about any "disciplinary proceedings" while the second half asks "where the discipline occurred." The question might seem to assume that it is only interested in cases where actual discipline was imposed.

Do NOT make this assumption. The safer and better course to follow is to set forth any actual accusations or disciplinary charges and if the case was dismissed or no discipline was imposed to state those facts.

5. Criminal Charges. The question that we see applicants harm themselves the most is the one regarding criminal charges. The disposition of criminal cases is often ambiguous and a review of original records is often necessary to know the proper way to answer these questions. We have had many cases where the applicant's failure to disclose the charge accurately resulted in denial of the license or the granting of a restricted license or probation being imposed and we are hired to handle the appeal or disciplinary charge. If the person had answered the question accurately -- the license would have been issued but the perceived deception created significant problems.

Case Example: Physician finished residency and applies for privileges at Los Angeles Hospital. He had disclosed an old driving under the influence conviction to the Medical Board. however, when he applied for privileges at the hospital, he did not disclose the conviction. The hospital ran a background check and denied his application for privileges on the ground that he was deceptive on his application. Under the law, the hospital was required to report the denial of privileges to the Medical Board of California. By the time we met him, the Medical Board filed an Accusation and this young physician had already entered into a Stipulated Settlement and Decision to be on probation for 3 years.

Here is a sample criminal charge question:

"Have you ever been convicted of any offense other than minor traffic violations? If yes, explain fully as described in the applicant instructions. Convictions must be reported even if they have been adjudicated, dismissed or expunged or if a diversion program has been completed under the Penal Code or Article 5 of the Vehicle Code. Traffic violations involving driving under the influence, injury to persons or providing false information must be reported. The definition of conviction includes a plea of nolo contendere (no contest), as well as pleas or verdicts of guilty."

Thus, if someone had been charged and there was a deferred entry of judgment where the case would be dismissed upon the completion of community service and having no further arrests for one year, it will probably be necessary to disclose that charge. Err on the side of caution.

6. Make sure the application is complete to avoid unnecessary delays. Read and re-read the requirements and have someone else review it for errors or omissions.

7. Rehabilitation. If in your youth or past, you had some criminal charges, discipline from employers or agencies, drug/alcohol issues, mental health issues or other life experiences that contributed to the prior conviction/discipline -- your application should reflect your rehabilitation and why you are not the same person that committed those errors and why it is unlikely that these issues will arise again.

We are often hired to assist a person in drafting the best application possible and creating a package that will help someone get licensed where there are past criminal convictions and disciplinary problems. The wonderful thing about the United States is the people can have second or even third acts in their life. The key is acknowledging the past problems and showing why you have earned the right to a license and there is a minimal likelihood that it will ever occur again.

Applicants must also submit a description of the rehabilitative changes in their life, which would enable them to avoid future occurrences. To make a determination in these cases, the Board considers the nature and severity of the offense, additional subsequent acts, recency of acts or crimes, compliance with court sanctions, and evidence of rehabilitation.

The burden of proof lies with the applicant to demonstrate acceptable documented evidence of rehabilitation. We create a package where we show that the applicant has met his or her burden.

Examples of rehabilitation evidence include, but are not be limited to:

• Detailed letter from applicant attached to the application describing the events at issue (prior criminal or disciplinary charges) and rehabilitative efforts or changes in life to prevent future problems.

• Letters of reference on official letterhead from employers, instructors, professionals in the same field, professional counselors, parole or probation officers, or other individuals in positions of authority who are knowledgeable about your rehabilitation efforts.

• Letters from recognized recovery programs and/or counselors attesting to current sobriety and length of time of sobriety, if there is a history of alcohol or drug abuse.

• Proof of community work, schooling, self-improvement efforts.

• Court-issued certificate of rehabilitation or evidence of expungement, proof of compliance with criminal probation or parole, and orders of the court.

• Support letters from others in the community who are knowledgeable about rehabilitation efforts, current skills and why they are supporting your application even though they know about the prior criminal or disciplinary case.

We help outline, draft and coordinate the letters and entire application package and provide an objective view of what the typical agency or bureau wants in the application. Often the applicant fails to realize that although there are many current licensees with problems and issues, in order to be licensed with some adverse history he or she needs to jump a hurdle and prove that he or she is not a disaster waiting to happen and that instead, will be a credit to the profession.

Conclusion: Your application and/or renewal application is one of the most important documents you can complete. If there are some areas of your past that are troublesome or cause you concern, it is well worth hiring an experienced attorney (even if only for a few hours) to assist you in handling these issues such as ordering the court records and drafting the explanation in an attachment. Remember the value of your license over the course of your lifetime. It is a very valuable asset often worth millions of dollars.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  

Any questions or comments  should be directed to Tracy Green, a very experienced California administrative law attorney, Los Angeles administrative law attorney attorney, and Los Angeles board and bureau attorney at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in administrative board and discipline matters in California and throughout the country. Their website is: http://www.greenassoc.com/

California Board And Bureau Investigations: Frequently Asked Questions by Licensed Professionals During Board Investigations And Requests For Records

In our practice, we represent a variety of professions before the California administrative boards and bureaus. Here are nine frequently asked questions and answers:

1.  I have received a request for a patient or client file from my licensing board. What should I do?

This is the time to be the most proactive. The earlier you can prevent an investigation from going forward, the better. Once an Accusation or disciplinary charge is filed, it is difficult to unwind it. We find that often charges were filed because the professional did not adequately address the investigation at an early stage.

Each case is different and varies upon the facts. No one strategy works for each case. However, an experienced objective attorney can help you prevent complaint from turning into disciplinary charges or mitigating the problem.

One important piece of advice that applies to most cases (but not all): do not simply produce the file and nothing else. Here are some of the things, among many, that can be done at this early stage:

(1) Take the opportunity to ensure the board has full access to all relevant information.

(2) If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case.

(3) Have an experienced attorney or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary proceedings. Remember that everything you do is evidence.

(4) If there is significant handwriting in the file, dictate the notes so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.

(5) If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.

(6) The board can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.

(7) Do not alter, backdate or create any records unless such records are properly created and dated.

(8) Once you hire an attorney, have him or her send a letter of representation so the board contacts the attorney and does not show up at your office for a surprise interview.

2.  My licensing board is accusing me of misconduct. What should I do?

A governing board will often state that it is investigating suspected fraud, abuse or other misconduct, but not tell you specifically why. You need to find out the facts supporting the board's accusation. An experienced attorney can help you immeasurably with this process. Once the board is notified that you have hired an attorney, it is not permitted to contact you directly. The attorney can speak with the agency's investigators to learn the factual basis of the allegations. The attorney can then direct you to take specific steps to protect your license.

3.  Why can't I (or shouldn't I) talk to the licensing board myself?

You do not need an attorney to communicate with your licensing board, but it is an excellent idea. An attorney can speak on your behalf and obtain information without making any admissions that might hurt you. Anything you say to a board, even though it may seem innocent, might be used against you later. In addition, it is difficult for you to be objective and create an intelligent and forward thinking strategy.

4.  I already spoke to the licensing board. Is it too late to hire an attorney?

No. Licensing boards do not always act quickly. An attorney can help you find out what the board is intending to do. The attorney may be able to help you submit additional information or documents for the board to consider. The attorney may also be able to negotiate a settlement that would allow you to keep your license.

5.  The licensing board has presented me with a proposed disciplinary order. Do I have to sign it?

No. You can reject it and try to negotiate other terms. If you and the licensing board cannot agree on terms, the board will likely bring formal disciplinary proceedings.

Having an attorney advise you is important. Attorneys who specialize in administrative law understand both the board's concerns and the nature of your profession. This insight often enables them to negotiate settlements that satisfy the board's need for oversight as well as your need to maintain profitability.

A settlement enables you to avoid formal disciplinary proceedings. When a settlement is not possible, you want representation by an attorney who is familiar with procedural rules as well as the laws and regulations governing your profession.

6.  I have an administrative hearing scheduled before a licensing board or regulatory agency. Do I need an attorney?

You are not required to have legal counsel, but it is an excellent idea. The agency will be represented by an attorney and, in fact, you will be at a disadvantage without one.

Many procedural and evidentiary rules must be followed in presenting a defense. Even if you feel you have a good defense, you might not be permitted to present it if you don't follow the rules. An attorney who specializes in administrative proceedings will be able to present your defense in the proper manner.

7.  I have been charged with or convicted of a crime. Will this affect my license?

It likely will. Many regulatory agencies require that you report a criminal charge or conviction, even if it seems unrelated to your practice. Certain charges or convictions may result in the suspension or revocation of your license. This is one reason why it is critical to coordinate any criminal defense with an attorney specializing in administrative law and board defense at the earliest possible stage.

An attorney specializing in administrative law will help you determine the reporting requirements relevant to your profession. If reporting is required, the attorney will help you present the facts in the best light possible. If you fail to report, this can be considered unprofessional conduct and can be used against you later. Honesty is the hallmark of professionalism and a subsequent dishonesty (or even lack of forthrightness) while you are defending your criminal charge can harm your professional license. If you have negative facts in your criminal case, you can win your criminal case and still face discipline from your board in many circumstances. We advise a global strategy that looks forward to the next several years and includes all criminal, civil, and administrative consequences.

8.  Can I apply for a license if I have a criminal record?

It is difficult, although not impossible, for an applicant with a criminal record to obtain a professional license. An attorney skilled in licensing law can help you submit evidence of your character and rehabilitation, so as to present your application in the best light possible. In short, you will need to have a thorough application, numerous support letters, and significant documentation to explain the charges and why you have changed and what you have done to warrant you being granted a professional license. It helps to have an objective attorney who can help you build the best administrative record possible.

9.  I want to avoid problems with my licensing board. How can I make sure I operate my business in compliance with the law?


Many professionals retain a law firm to review their business structure and office policies to ensure they are in compliance with the laws and regulations governing their business. An attorney skilled in administrative law will have knowledge of the common pitfalls for your particular business and can show you where your practice might be vulnerable to administrative scrutiny. The attorney can assist in educating your staff about the law relevant to your practice through in-office presentations or the preparation of formal office policy and procedure handbooks. It is also common for professionals to retain a law firm on an ongoing basis for a monthly fee to have access to an attorney to questions as they arise.

Posted by Tracy Green, Esq.  Any additional questions or comments should be directed to tgreen@greenassoc.com.  Tracy Green is a principal at Green and Associates. The firm focuses its practice on the representation of professionals, particularly health care professionals including individual physicians, corporate providers and group practices.

Tracy Green is one of the best Los Angeles Board attorneys, one of the best Los Angeles professional license defense attorneys and is committed to excellence.  You can email her at tgreen@greenassoc.com or call her at 213-233-2261.   Their website is: http://www.greenassoc.com/

Grand Jury Indicts Los Angeles Doctor Who Headed Liver Transplant Program on Charges of Allegedly Covering Up Patient Switch With Falsified Records

On January 6, 2009, Dr. Richard R. Lopez Jr., a Los Angeles surgeon who was the director of the liver transplant program at St. Vincent Medical Center in Los Angeles was indicted by a federal grand jury for lying to the national organ transplant network after a liver accepted on behalf of one patient was instead transplanted into another patient who was significantly lower on the national wait list.

The eight-count indictment accuses Dr. Lopez of conspiracy, one counts of concealment of a material fact, and six counts of falsification of records in a matter under the jurisdiction of the United States Department of Health and Human Services. Dr. Lopez is scheduled to make his initial appearance on January 25. An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed innocent until and unless proven guilty.

According to the indictment, in September 2003, St. Vincent was offered a liver for a St. Vincent patient, identified as A-H, who ranked second on the match list for that liver, but who was in his home country of Saudi Arabia. The backup patient for the liver was at another local hospital. Instead of advising the organ procurement organization of the intended switch and allowing the organ to be offered to the backup patient, Dr. Lopez approved acceptance of the liver and its transplantation into a patient at St. Vincent—a patient identified in the indictment as A-B, who was ranked 52nd on the match list behind nine other St. Vincent patients.

After A-B received the liver, Dr. Lopez and his co-conspirators are accused of falsely telling authorities at the national organ transplant network that A-H had received the liver, and later submitted a falsified pathology report on A-H’s “explanted” (removed) liver. As a result of the false reporting, A-H was removed from the liver transplant wait list in September 2003, and was thereafter deprived of the opportunity to have this life-saving operation, according the indictment.

However, it is alleged that Dr. Lopez continued to tell A-H that he was on the liver transplant wait list and instructed A-H return to the United States in April 2004, when A-H was found to be too ill to be transplanted. He subsequently returned to Saudi Arabia, where he later died.

The indictment alleges that in reports filed until 2005 with the authorities operating the national organ transplant network, Dr. Lopez and unnamed co-conspirators continued to maintain the fiction that A-H had received the liver transplant. In 2005, the switch and cover-up were discovered by senior management at St. Vincent, and the matter was reported to authorities.

Dr. Lopez has not been associated with St. Vincent since late 2005. The hospital has fully cooperated with federal authorities since the beginning of the investigation.

Seven of the eight counts in the indictment relate to the false reporting of the recipient of the liver offered for A-H. The last count relates to another incident in which a liver was switched to a different recipient and, following the transplant, Dr. Lopez allegedly misrepresented the circumstances of the switch.

If convicted of the eight counts in the indictment, Lopez faces a statutory maximum penalty of 130 years in federal prison. The case was investigated by agents from the Department of Health and Human Services, Office of Inspector General and the Federal Bureau of Investigation.

Attorney Commentary: This case is reflective of two important factors: (1) it was the falsification of records that created the criminal problems and (2) the world-wide shortage of organs. The organ shortage is going to get worse before it gets better.

The Jan. 9, 2010 Wall Street Journal has an interesting and educating article on this issue entitled "The Meat Market." According to experts in this field, there are options. To increase the supply of transplant organs, it would be helpful to have presumed consent, financial compensation for living and deceased donors and point systems. Many people have died but there is a push for innovation in organ donation that will save lives.

Posted by Tracy Green. Should you have any questions regarding your own situation or this post, you can email Tracy at tgreen@greenassoc.com. Green & Associates in Los Angeles, California focuses their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers. Their website is: http://www.greenassoc.com/

Health Care Provider's Duty To Produce Patient's Medical Records

One of the common questions we receive is what rights patients have to see and receive copies of their records or to have the records transferred to another health care provider and what costs can be charged.
The law on this issue is governed by California Health & Safety Code Section 123100 through 123149.5 establishes a patient's right to see and receive copies of his or her medical records, under specific conditions and/or requirements as discussed below.

Who Does This Law Apply To? These regulations govern: health facilities, clinics, home health agencies, physician and surgeons, dentists, podiatrists, psychologists, optometrists, chiropractors, clinical social workers, marriage and family therapists, and physical therapists. For other health care professionals not specifically governed by these regulations, it is a guide on what to do. By following them, one can be confidant that there should be no issue with any Board or Bureau.

Section 123110 of the Health & Safety Code specifically provides the following about patients inspecting or copying their records (including telemedicine records):

Inspection of Records - Right To "Inspect" Within 5 Working Days
(1) Any adult patient, or any minor patient who by law can consent to medical treatment (or certain patient representatives), is entitled to inspect patient records upon written request to a physician and upon payment of reasonable clerical costs to make such records available.
(2) The physician must then permit the patient to view his or her records during business hours within five working days after receipt of the written request.
(3) The patient or patient's representative may be accompanied by one other person of his or her choosing.
(4) Prior to inspection or copying of records, physicians may require reasonable verification of identity, so long as this is not used oppressively or discriminatorily to frustrate or delay compliance with this law.
Inspection is different than copying the records which is discussed below. Thus, the timeframe for inspection is shorter for inspection than copying (which is 15 days).

Transfer of Records To Other Providers - Not Covered By Law
The request to transfer medical records is not covered by law and is considered a matter of "professional courtesy." No statutes cover record transfers and there is no set protocol for transferring records between providers. Generally, physicians will transfer records without charging a fee; however, some doctors do charge a fee associated with copying and mailing the paperwork. Physicians will require a patient to sign a records release form to transfer records.

Copying Records - Costs Can Be Charged And Production Must Be Within 15 DaysThe patient or patient's representative is entitled to copies of all or any portion of his or her records that he or she has a right to inspect, upon written request to the physician. The physician may charge a fee to defray the cost of copying, not to exceed 25 cents per page or 50 cents per page for records that are copied from microfilm, along with reasonable clerical costs.

By law, a patient's records are defined as records relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient. Physicians must provide patients with copies within 15 days of receipt of the request. If there is an emergency or urgent reason why the records need to be copied immediately, it would be a good practice to produce the records immediately.
Copies of x-rays or tracings from electrocardiography, electroencephalography, or electromyography do not have to be provided to the patient or patient's representative if the originals are transmitted to another healthcare provider upon written request of the patient and within 15 days of receipt of the request. A patient may request to purchase copies of his or her x-rays or tracings. All reasonable costs, not exceeding actual costs, may be charged to the patient or patient's representative.

Note: Make sure the entire patient chart has been copied. It is a good practice to have the health care provider review the file before it is released. We have seen cases where one of the issues at the disciplinary board is that records were created after production of records to the patient. In some cases, it was simply that the entire file was not copied and produced to the patient.

Summary Of Record.

A physician may choose to prepare a detailed summary of the record pursuant to Health & Safety Code section 123130 rather than allowing access to the entire record. This summary must be made available to the patient within 10 working days from the date of the patient's request. If more time is needed, the physician must notify the patient of this fact and the date that the summary will be completed, not to exceed 30 days between the request and the delivery of the summary.
If the patient specifies to the physician that he or she is interested only in certain portions of the record, the physician may include in the summary only that specific information requested. The summary must contain information for each injury, illness, or episode and any information included in the record relative to: chief complaint(s), findings from consultations and referrals, diagnosis (where determined), treatment plan and regimen including medications prescribed, progress of the treatment, prognosis including significant continuing problems or conditions, pertinent reports of diagnostic procedures and tests and all discharge summaries, and objective findings from the most recent physician examination, such as blood pressure, weight, and actual values from routine laboratory tests. The summary must contain a list of all current medications prescribed, including dosage, and any sensitivities or allergies to medications recorded by the physician.

Failure to Comply With Regulation Can Constitute Unprofessional Conduct And An Infraction: Any health care provider who willfully violates the regulations set forth above is guilty of unprofessional conduct. Further, any health care provider who willfully violates these regulations is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). The state agency, board, or commission that issued the health care provider's professional or institutional license shall consider a violation as grounds for disciplinary action with respect to the licensure, including suspension or revocation of the license or certificate.
If the patient has followed the requirements outlined in the Health & Safety Code and the physician has not complied with the request, the Medical Board allows patients to file a complaint. The physician will be contacted to determine the reason for failing to provide the patient with access to his or her medical records.

Exceptions: There are some exceptions to the absolute requirements shown above:

Minor's Records Exception. A physician may refuse the request of a minor's representative to inspect or obtain copies of the minor's records if a physician determines that access to the patient records requested by the representative would have a detrimental effect on the physician's professional relationship with the minor patient or the minor's physical safety or psychological well-being.

Mental Health Records Exception: A physician may refuse a patient's request to see or copy his or her mental health records if the physician determines there is a substantial risk of significant adverse or detrimental consequences to the patient if such access were permitted, subject to the following conditions:
The physician must make a written record and include it in the patient's file, noting the date of the request and explaining the physician's reason for refusing to permit inspection or provide copies of the records, including a description of the specific adverse or detrimental consequences to the patient that the physician anticipates would occur if inspection or copying were permitted.
The physician must permit inspection or copying of the mental health records by a licensed physician, psychologist, marriage and family therapist, or clinical social worker designated by the patient. These healthcare providers must not then permit inspection or copying by the patient. The physician must inform the patient of the physician's refusal to permit the patient to inspect or obtain copies of the requested records, and inform the patient of the right to require the physician to permit inspection by, or provide copies to, the healthcare professionals listed in the paragraph above. The physician must indicate in the mental health records of the patient whether the request was made to provide a copy of the records to another healthcare professional.

Compliance: Your office should have policies, procedures and forms governing this area. Office staff should have to follow these policies so there can be little confusion as to how to respond to patients' requests for records. There should be patient consent forms and the production of records should be document to the patient or his or her representative or subsequent health care provider. It would be a good idea to have the package of forms and rules reviewed by a health care attorney for accuracy. We have seen failure to produce records or delays result in professional complaints especially when they are mishandled.
Sometimes issues arise when the patients get demanding about immediate production at or about the time the statute of limitations is about to run for any professional negligence claim. If your office staff suspects that the reason why the file is needed is for a professional negligence claim, remain professional and ensure that the file is completely copied. If there are any records missing, indicate that during the production in writing. Seek independent counsel to ensure that your office is handling it all in a professional manner that is good risk management and will not come back to haunt you later.

Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers.

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