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.  

Medical & Dental Management Companies - United Dental Group Ordered to Pay $867,000 Settlement and Cease Business Operations in California for Unlicensed Practice Due to Management of Dental Practices

Management companies operating medical and dental practices in California have long struggled with the State's strong laws against the corporate practice of medicine, dentistry, optometry or any of the healing arts. 

A recent case against a dental management company (and related Accusations by the California Dental Board against at least two of the dentists that worked there) reveal that if the State wants to be aggressive with these arrangements, companies should be careful with the structure, the written agreements, the "unwritten" arrangements, and ensure that practice and financial arrangements comply with the law. 

In this case, the Board asked United Dental for responses and received detailed written responses from it's in-house attorney and United Dental entered into a new management contract with the dentist that was not fully compliant with the law. United Dental managed 5 practices in California. Two years later, United Dental got hit with civil lawsuit and at least one dentist got an Accusation in March 2015 for aiding and abetting the unicensed practice of medicine.

Brief Summary of Settlement of Civil Lawsuit Filed by Orange County

On December 11, 2015, the Orange County District Attorney’s Office (OCDA) obtained a settlement in a civil suit it had filed against United Dental Corporation and its California affiliates (dba “United Dental Group”), as well as its owner Jeong Hoon Kim, for engaging in the unlicensed practice of dentistry and false and misleading advertising. The Dental Board has at least one Accusation pending against a dentist who worked at United which has not settled.

The settlement requires the shut-down of United Dental Group in California on or before March 3, 2016, and an $867,000 payment in civil penalties and costs ($8,791.20 to reimburse the Dental Board for its costs of investigation and $858,208.80 in civil penalties). During the shut-down period, all operations will be solely managed and controlled by a licensed California dentist. The final judgment was entered Dec. 9, 2015, in the Orange County Superior Court presided by Judge Geoffrey T. Glass. 

A Complaint to Dental Board Triggered The Civil Lawsuit by Orange County

Most investigations in our experience are from anonymous complaints from competitors. This case seems to be no different.

DEA and Medical Boards Target Weight Loss Clinics and Phentermine

We have seen more investigations of physicians or advanced practitioners (physician assistants and nurse practitioners) prescribing phentermine to patients.  Phentermine is a Schedule IV drug and we have seen increased scrutiny of weight loss clinics and investigations into the physicians, nurse practitioners, physician assistants and nurses who work at them.

The investigations include the following topics:

1.   The business structure of the weight loss clinics and whether management companies or non-physicians are involved in the business.

2.   Whether the physician established a bona-fide doctor-patient relationship before prescribing phentermine to patients.

3.   Whether the physician obtained a thorough history or complete a thorough physical examination prior to initiating treatment utilizing a Schedule IV controlled substance.

4.   Whether the physician continued prescribing phentermine to a patient who had failed to lose weight after taking the controlled substances over a period of thirty days.

5.   Whether the physician had initiated treatment utilizing a Schedule IV controlled substance without having performed a review of the patient's prior medical and weight-loss program records to determine that the patient had made a substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification and exercise, without the utilization of controlled substances, and that said treatment had been ineffective.

6.   Whether physician had dispensed drugs having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.

7.   Whether the physician had violated 21 C.F.R. Section 1306.04(a) which requires that a controlled-substance prescription "be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice."

8.   Whether the phentermine is being properly stored and dispensed under state and federal rules. Are the DEA logs maintained properly? Is the receptionist or a medical assistant improperly handing the phentermine to the patients? Is the phentermine properly labeled with instructions?

9.   Are referral fees given to patients for referring friends in violation of state anti-kickback and referral fee rules?

10.    Is the phentermine being given at a discount if private or government insurance is billed for other services?

We handled one case outside of California where law enforcement sent in a  confidential informant to gather information on the physician’s weight loss practice. The government informant was female, short and weighed over 210 pounds at the time of her initial visit to the practice and it was obvious that law enforcement chose her to participate in the investigation because she was not only obese, but had a number of other medical conditions as well.

In that case, the physician was investigated for prescribing phentermine (controlled substances) to the undercover without performing an adequate physical examination, properly documenting her medical history, recording adiposity measurements such as BMI or waist circumference, conducting any laboratory testing, or verifying that the undercover had made good faith efforts to lose weight without the aid of controlled substances. We helped obtain the dismissal of criminal charges but the DEA and Medical Board still pursued the physician.  

If you have medical weight loss as part of your practice, now is the time to get compliant with state and federal rules and regulations -- before there is an an investigation.  Have us or another experienced firm conduct an audit and make sure you comply before the Medical Board or DEA pays your office a visit or requests records from your office.  If there is an investigation, get counsel right away so you do not respond to records requests or interview requests without representation. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

213-233-2260

Email: tgreen@greenassoc.com

Louisiana Psychiatrist Sentenced to Serve More Than 7 Years in Prison for Role in Medicare Fraud Case Involving Partial Hospitalization Psychiatric Services

A Louisiana psychiatrist, Dr. Zahid Imran, was sentenced in federal court in Baton Rouge, Louisiana, on August 25, 2014 to serve 86 months in prison for his role in a Medicare fraud case involving partial hospitalization psychiatric services. 

The sentencing followed his guilty plea. He was further ordered to pay $43.5 million in restitution and to forfeit all proceeds from the fraudulent scheme. Chief U.S. District Court Judge Brian A. Jackson of the Middle District of Louisiana imposed the sentence and ordered Dr. Imran to self-surrender by September 29.

According to documents filed in the case, Zahid Imran, M.D., 56, of Baton Rouge, served as the medical director of Shifa Community Mental Health Center of Baton Rouge, and co-owned Serenity Center of Baton Rouge and Shifa Community Mental Health Center of Texas.   As part of the alleged fraud, Dr. Imran admitted mentally ill patients to the facilities, some of whom were inappropriate for partial hospitalization, and then re-certified the patients’ appropriateness for the program in an effort to continue to bill Medicare for services. 

To support the fraudulent Medicare billing, it was alleged that Dr. Imran and others allegedly falsified patient treatment records to reflect services on dates when no such services were provided. Dr. Imran pleaded guilty on May 13, 2014, to conspiracy to commit health care fraud. There were allegations that the patients were brought in by buses from Memphis and other areas which is indicative of illegal marketing.

This was a wide-ranging prosecution that began with an investigation in 2011 into the three community mental health centers. This investigation has resulted in 17 convictions of individuals employed by the facilities, including therapists, marketers, administrators, owners and the medical director.  The companies billed Medicare for partial hospitalization program services for the mentally ill that were allegedly unnecessary or never provided over a period of approximately seven years. The companies, collectively, submitted more than $258 million in claims to Medicare during this period. Medicare paid approximately $43.5 million on those claims.

Attorney Commentary: The days where facilities could avoid fraud charges by seeing patients are over. Prosecutors are no longer afraid to tackle medical necessity. This is especially true in psychiatric cases where the people served are mentally ill, poor and not receptive to treatment. Add marketing and patients who travel for services and there are significant red flags for audits and investigations.

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

California Business Owner Arrested And Charged For Deliberately Failing To Get Workers' Compensation Insurance

There is more pressure on businesses to get employees covered for workers' compensation insurance, and in some cases are being charged with workers' compensation insurance fraud for deliberately failing to get the insurance or for asking employees or workers to state that the injury did not occur at work.

On June 24, 2014, a plumbing contractor, Tim Shelley, was arrested on felony charges of workers' compensation insurance fraud and grand theft filed by the Humboldt County District Attorney's Office.  The California Department of Insurance investigated and alleged that Mr. Shelley's business Tim's Plumbing deliberately failed to obtain workers' compensation insurance for his employees. It was also alleged that there were instances in which employees were injured and were discouraged from claiming workers'compensation benefits. As a result, it was alleged that severely injured workers were unable to afford their medical costs for treatment and suffered significant financial hardships.

Under Insurance Code Section 1871.4 it is illegal for an employer or his agents, such as supervisors or foremen, to make misrepresentations to deny or discourage an injured worker from receiving workers' compensation benefits.  It is considered a violation of this statute if an employer:

• asks or tells an employee or worker that an injury did not happen at work,
• asks or tells an employee or worker to use health care insurance to cover the work related injury, or
• asks or tells an employee or worker to tell the hospital or doctor that the employer is self-insured and that the employer will pay directly pays all hospital or doctor bills directly

Compliance.  We have been brought in cases where employers have not been compliant with the laws and there is an interim period of handling uninsured workers or independent contractors who are not properly classified or have been injured. In these cases, we assist the employer in handling the outstanding claims while workers' compensation insurance is obtained.  In these cases, we handle any requests for interviews or statements since we do not want anyone at the company to incriminate themselves or build a case against themselves.

Investigations by Department of Insurance and Carriers.  One reason the counties are prosecuting these cases is that there are special units, funded by the insurance companies and policy fees, that are given grants to file these cases.  Even small cases are being filed. It is important not to take these investigations lightly and to understand the investigations are criminal and civil. If there is a request for an interview or records, do not handle this yourself and seek experienced counsel to represent you. Anything anyone states is evidence and can be used as an admission. The point is to handle the investigation without creating evidence that will be used to charge anyone.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Phone: 213-233-2260

Email: tgreen@greenassoc.com

Attorney Sentenced For Theft of Government Property For Receiving Deceased Grandmother’s Social Security Benefits For Over 10 Years - Case Study On What NOT To Do When OIG Or Investigators Contact A Suspect

The Office of Inspector General (OIG) is increasing their investigations against those who are suspected of improperly taking Social Security benefits.  We have seen OIG request interviews of family members where the parents are out of the country and receiving Supplemental Social Security (SSI) and other government benefits. If someone is charged with theft of Social Security, SSI or Medicare benefits, they will be charged under 18 USC Section 641 (theft of government property).

If the OIG is investigating, it means that there is suspicion of criminal conduct. In a recent federal criminal case, the OIG started investigating and the person receiving the benefits lied to the OIG investigator. This is a case example of what not to do when contacted by the OIG and when an investigation is pending.

The facts are as follows. On May 24, 2000, the grandmother of Audrey Owens, an attorney and retired deputy public defender for Riverside County, passed away. Her Social Security benefits had been deposited into a bank account that had her and her father’s name on the account. Ms. Owens took her dad’s name off the account and changed the bank account address to her home. For the next 12 years, the benefits went into this bank account and Ms. Owens spent the funds. Ms. Owens did not think about the fact that her grandmother would have been over 100 years’ old in 2012.

In August 2012, as part of a “centenarian project” OIG began investigating Ms. Owens’ grandmother. The OIG was investigating all persons aged 100 years or more who are receiving Social Security or SSI benefits to make sure they are still alive. OIG could not locate Ms. Owens’ grandmother and therefore suspended benefits. Later this fact was used to show that Ms. Owens would not have ended the fraud on her own.  

On August 30, 2012, OIG agents went to Ms. Owens’ home and spoke to a man and asked him where the grandmother was. This man said the grandmother was in Kansas City. On September 24, 2012, Ms. Owens agreed to speak to OIG agents without an attorney. Ms. Owens told some mistruths to the OIG agents – which is not uncommon for people interviewed without an attorney when they panick. Ms. Owens stated that the man the OIG met was a homeless man she took in from a church when in fact he was her husband. Ms. Owens also stated that she thought the funds that went into the account were from her father’s VA benefits. Another untruth.

It took the U.S. Attorney’s Office a year before filing a criminal complaint against Ms. Owens. The total loss was just over $120,000 for benefits received as well as Medicare premiums paid on the grandmother’s behalf. 

During this year, it would have been very helpful for Ms. Owens if she had started repayment of these funds on her own before she was charged. Unfortunately, it appears that nothing was done until just before sentencing. Once Ms. Owens was charged, she plead open to the Court. By this time, she had retired from the  public defenders’s office.

At sentencing, Pretrial Services recommended 6 months. The government sought a sentence of 12 to 18 months. On June 2, 2014, Judge Phillips sentenced Ms. Owens to 1 year and 1 day (the extra day is a sentencing benefit to Ms. Owens for various reasons).

Ms. Owens sought to have her sentence lower by addressing the fact that she suffered from alcoholism during this time period. It is difficult to determine how persuasive this was given that she was employed full-time during this time period.

One thing that was done correctly here was repayment of restitution before sentencing. Ms. Owens wisely repaid all the funds to SSA except for $1,747 and this may have been a factor in the court not sentencing Ms. Owens to 18 months. If this had been a state court case rather than federal, there probably would not have been a state prison sentence for a first time offense where restitution was almost entirely repaid, however the federal system is much harsher on sentencing results for these type of cases -- especially when a professional is involved.

There is no question that lying to a government agent such as OIG makes matters much worse. It is better to refuse to be interviewed if the person cannot say anything without incriminating themselves. This is when someone should obtain an attorney for advice so they do not make such a terrible mistake that compounds problems. This can often lead to obstruction of justice charges or enhancements.

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

What NOT To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office - Part 2

This is the second in a series. The first article is entitled "What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1." Read Part 1 and then read this article for greater detail on what NOT to do when there is a government or board investigator asking to interview you, requesting records or when you find out that there is a pending investigation. I'm giving you my experience but remember that this is not a substitute for seeking your own legal advice but can help you understand the process. 


Rule #1: Do NOT take a board investigation lightly but at the same time do NOT panic. You have worked hard to get your license and most probably, your livelihood depends on your practice. Regardless of what you think the merit of the complaint, take it seriously and remember their job is to protect the public, and they can put you on probation, impose discipline on your license, fine you, etc. The board has a very complex and detailed protocol to follow in order to fulfill their mandate to protect the public. Have your attorney respond respectfully and professionally.

However, at the same time, everybody who has been in a profession long enough is going to be investigated. Talk to some people who have been through this before to get a healthy perspective. In other words, take it seriously but do not panic so that you make stupid mistakes. I have had too many cases where the client handled the board investigator interactions on their own for months and once they made numerous missteps, I was brought in to fix their mistakes.

Rule #2: Do NOT respond to a letter from the board unless you have consulted with an attorney. Even better, have the attorney respond to the board rather than you.

For example, I represented a Board certified Internist who was treating a patient covered by workers’ compensation insurance for high blood pressure only. The patient had numerous other health issues that were not addressed in the records. The doctor got her advice from other physicians and responded without realizing that her files were poorly documented, failed to show referrals to other specialists and failed to address the gaping problems with treating a patient in the workers’ compensation system who is not covered by any other insurance. I was brought in when the board decided to bring her in for an interview with a medical expert and a Deputy Attorney General. The board investigator was getting ready to recommend filing an Accusation. We became prepared for the meeting by having the doctor sign up for a medical record keeping class, sending a detailed letter addressing the issues in the workers’ compensation system where there was only authority to treat for one condition and how the doctor had changed her policies and procedures to handle documentation of referrals better in the future. Armed with these documents, the interview went well and once the doctor completed the PACE record keeping class, the case was closed. 


Everything you say is “evidence” or an “admission” and can be used against you in a Board proceeding or hearing. Having your attorney proffer this information is a way of getting around this. In some cases, the Board will specifically request that the letter come from you.  Supplemental information, however, can be submitted by the attorney.


One of my sayings is that the person with the biggest stack of papers wins. I like to show the Board that my client is professional and even if things were not handled perfectly, we have done everything to ensure that such an error will not happen in the future and therefore no discipline is needed. The Board gets my client’s CV, recent related continuing education certificates, letters of support, declarations under oath, expert witness report (if needed), etc. Every case is different and we are only limited by our imagination and creativity in finding ways to prove our case. 

Rule #3: Do NOT turn any material or records over to the board without getting legal advice first. While the board is likely to have a right to review the case material related to an investigation, the rules of evidence are quite complex and, at times, confusing. It is best if you let you attorney advise you about what to turn over to the board according to your state law. Indiscriminately turning records over to the board can result in additional or more serious charges than were originally intended by the board. In addition, you want to ensure that all privacy rights of any patients or clients are protected.

There are cases where auditors or certain inspectors (such as OSHA) are entitled to show up unannounced and request records. In those cases, contact an attorney so you make sure your rights are protected. There are ways to provide records without being interviewed until you have time to determine the status of the investigation and the nature of the complaint.  In addition, you want to ensure that you have a complete record of what has been produced.

Rule #4: Do NOT ever meet with the board investigator without legal representation. Meeting with an investigator without your attorney can be the single most professionally dangerous error you can make. It can cost you a clean license. Do not meet with a board investigator in person or talk to him/her on the phone without an attorney present, even if you are confident that you can positively respond to the complaint or accusation, and you think you can explain it away. The reason to have an attorney is that he/she can protect your rights to respond to certain questions so you do not unknowingly incriminate yourself. 


Most professionals do not know their rights or worry about looking "guilty" if they ask for an attorney and the truth of the matter is that they need an attorney to advise them.

In addition, if I as your lawyer tell the investigator what an amazing professional you are and give examples of what a good person you are, it is advocacy. If you say it, however, it is arrogance. Investigators generally cannot stand arrogance.

Rule #5: Do NOT ever discuss anything, without legal representation, with the board investigator if they unexpectedly show up at your office. It is common here in California for the investigator to show up without an advance appointment. Even if the investigator seems friendly, neither talk to them about the case nor release any records without legal representation. The nicer they are, they more you need to be wary since that is an investigative technique commonly used. The best investigators are like used car salesmen, they will come in your office, act chatty, put the feet up on your desk and hope you will say everything before you have had a chance to think about the case, review the records or speak to an attorney.


If an investigator unexpectedly shows up at your office or home, politely ask for their business card and tell them that your business attorney will contact them soon. Chatting "informally" with an investigator without your attorney present or turning records over to them can be the two most professionally dangerous errors you can make. Remember that you do not have a witness and you are not as well prepared as they are since they have been investigating the case. Do not allow them to pressure you to do anything right then and there. You have the right for legal representation and you should exercise it in a respectful way.

Rule #6: Do NOT assume that lack of harm to client or patient will end the board inquiry. You must understand that boards often focus on whether you violated any state laws or administrative or professional binding guidelines rather than whether your client was harmed by you or whether there was malpractice. While the element of damages is an essential element in a malpractice lawsuit, it is not a determining factor in a disciplinary action, except in relation to any penalty that may be assessed.

Rule #7: Do NOT be in a hurry. Often I have clients that want to get the investigation over so quickly that they insist on meeting the investigator and making assumptions about it too quickly.  I have had clients try to insist that I send letters before I have received a response from the State about any complaints – and later when we receive a letter about the nature of the complaint (in California under Bus. and Prof. Code Section 800(c)) they are glad I made them wait.  In most cases, time is your friend and use the time to help build your case and show the Board the facts. You want to meet deadlines but do not rush and make simple mistakes.


For example, when I say “don’t be in a hurry,” I also mean don’t be in a hurry in making decisions without legal counsel. One of my clients was visited by the DEA and was asked to surrender his DEA license. He was afraid and thought it would help an investigation go away, so he surrendered it and that caused a Medical Board investigation to be opened.

Rule #8: If you speak to investigators, do NOT lie or shade the truth. If you cannot tell the truth, do not speak. It is often a crime to lie to a federal or state agent.

For example, I had a client who ran a billing company charged with a federal felony of obstructing a federal audit which related to the audit of his client. Naturally, he did not consult an attorney before meeting with investigators from the Office of Inspector General (OIG) several times. 

Rule #9: If you are told that you have the “right to remain silent,” do not speak to investigators. This means that there is a criminal investigation. This is the time to exercise your constitutional right to the 5^th Amendment until you meet with an attorney.


Example, I had a client who was being investigated for dispensing IUDs that were from Canada and were not FDA approved. The doctor and his office manager confessed on the spot in the meeting. Did this help them? No. Criminal charges were filed. My other clients in similar cases who did not speak were never charged criminally for the same conduct since the authorities did not have a confession.

Rule #10: If you are asked to give a written statement, do NOT do so. The investigators will often write it out for you to “help” you or one of your employees. Take the time to meet with an attorney before you sign any document even if they tell you that you are not the suspect. It is amazing how many cases get started this way.


Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, lose your license, or lose your livelihood.


Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced administrative law attorney, licensing attorney, and board and bureau investigations and hearing attorney.

If you have questions regarding your own case, please call 213-233-2260 or email Ms. Green at tgreen@greenassoc.com to schedule a complimentary 15-minute consultation.

What To Do When A Board Or Government Investigator Requests Records Or Comes To Your Office: What To Do And What NOT To Do - Part 1

If a board investigator from an administrative agency a criminal investigator contacts you or comes to your place of business or requests records in writing, the first step you need to take is contacting an attorney experienced in this area of the law. Tracy Green has given lectures to many professional associations indicating what an individual should do (and not do) when contacted by an investigator or when there is a request for records. Even a one or two hour consultation will help you prepare and not make critical mistakes that can harm you later.

A board representative may claim to have your best interests in mind and may tell you that “you don’t need an attorney.” Unfortunately, their job is not to protect your rights. They prefer to catch you off-guard before you have had time to prepare or think about the issues. For this reason, they do not usually make appointments. They just “show up” at your office.  In addition, they do not usually tape your interviews but have a second person there and they take down “notes” and create a report that is difficult to challenge later. 

It is much easier to be proactive and handle the cases properly from the beginning than to defend an Accusation or other proposed charges. Good beginnings make good ends.

Let's begin with general points to understand about the process. This is Part 1. Look for upcoming articles on this topic.

7 GENERAL POINTS TO UNDERSTAND 

ABOUT REQUEST FOR RECORDS OR INTERVIEWS

1.  The probability of getting a board complaint or being investigated by a state licensing board is increasing for several reasons. First, the longer you practice, the greater chance that you will receive a complaint. Second, there is greater political pressure on the boards and bureaus in California to be aggressive and harsher on the discipline. Third, common sources of complaints are patients/clients, competitors, insurance companies and disgruntled ex-employees. People are more inclined to complain in today's world especially since it is easy for them to find out how to do it on the Internet and the forms are downloadable. 

2.  It is important to know what is being investigated and the nature of the complaint(s) before there are interviews or responses to records are submitted. An experienced attorney knows how to find out this information in a professional manner that will make you look competent and responsible.

For example, I have had numerous cases where a new complaint reactivated an old complaint that my client did not even know existed because it was closed out at the intake level. This is why it is important to know what is being investigated before there are interviews or responses to records. This is also necessary so an overall defense strategy can be implemented. 

In one case, an OB-GYN was visited by a Medical Board investigator and asked to interview him about a patient who alleged a sexual touching. Investigator told him he didn't need an attorney. Sexual allegations are the MOST difficult to get rejects on if they get filed. OB-GYN called me and I spoke to the Board investigator, explained that I am his health care law attorney and I want to be present at the interview. Investigator told me "if it were me, I'd want an attorney present." Before the interview, I made reasonable demands to find out which patients were going to be at issue in the interview so we could ensure that proper releases had been signed and we could review the files beforehand. Turns out that in prior years there were two prior sexual touching complaints that had been closed out at the intake level but my client did not even know about them. All three complaints were completely false: one was complaining about a clitoral examination when the patient had elephantitis of the vagina and was at risk for tumors which was explained to her; another was complaining about having a woman with fibrous breasts sit up and lay down during the breast exam; and the other was equally absurd. Before the interview, all files were reviewed, a summary of each patient's treatment was provided, statements were obtained by staff from those that were present during the examinations, and the doctor was prepared to answer the questions without being offended, upset or too emotional. The investigator was also presented with the OB-GYN's policies and procedures for examining all women with a chaperone present. The case was closed after the interview and presentation of records. 

3.  If  you receive is a request for records or interview, it means that it has passed the intake process and a case has been opened.  That case will be either closed or it will be forwarded to the Attorney General's Office with a recommendation for filing disciplinary action. The GOAL is to get the case closed or to minimize the allegations that are forwarded to the Attorney General.  There is a range of cases ranging from meritless ones to questionable ones to difficult ones. Even with difficult cases, the goal is to have damage control and to determine how to achieve the best result possible even when the facts are not in my client's favor. The investigators have discretion and it may be that I need to help my client build good facts showing in various ways how my client is an outstanding professional

4.  The board or government representatives are NOT your friends. They are often very friendly and one of the biggest mistake my clients make is talking to them since they seemed "so nice" or because they were afraid of "making them mad." This is a very unsophisticated approach. Investigators are trained how to minimize in order to obtain more information. Just imagine that there is an Accusation filed and we are going to hearing, but you tell me "well, Tracy, I think the investigator liked me at the interview." There is a very easy way not to antagonize the investigator and have your attorney assert your rights. A good attorney knows how to make you look good while asking to be present at the interview. 

5. Be professional and respectful even while exercising all your rights. Now this does NOT mean that we fail to be aggressive in your defense but it means that we do not antagonize the investigator or Deputy Attorney General. As much as you want me to write a nasty letter threatening to sue the State, in the beginning I'll recommend instead a letter that focuses on the facts and why this investigation does not have merit. 


It means that we are very cordial -- respecting the power that they can wield over your license -- but we are strong and professional at the same time. The fact is that they know the details of the complaint and we know nothing. This means that we need to learn as much as the investigator to the extent possible before any interview. In addition, the investigator only knows one side of the investigation and we want to educate them as much as possible. I have gotten involved in cases after my client has threatened to sue the Board, the invetigator and that did not help their case. I am aggressive about defending my clients but smart about how to approach the Board and the investigators.  

6. Do NOT take investigations or requests for records lightly even if you are confidant that you did not do anything wrong. For example, assume there is a complaint by a former patient/client that you committed malpractice. The records are clear that there is no malpractice and, in fact, it was a good result. However, a review of the records shows that the recordkeeping is poor -- a surgical report is missing, the notes are skimpy, the handwriting is illegible and/or some other required information is not recorded. 

7.  The time to seek advice is before the records are produced or before there is any type of interview. It may be decided that a letter summarizing the treatment or client history is a good idea. It may also be decided with the help of the attorney that the missing record should be recreated but with a clear indication that the record was unexplainably missing and was recreated in order to give a complete record. Declarations or statements may be obtained from employees or other witnesses.

Some of my clients made serious missteps by backdating records or sending less than ideal records to the investigator without transcribing or summarizing them. Or they think that if the records are disorganized it will help them. To the contrary, if there are good facts, you want to make the job easier for the investigator and give him or her good reasons to close the case. Often the investigator may be sending the files to an expert witness and you want the expert to be able to read and understand the records, especially if there are good facts. A good summary from your attorney can help that process significantly. The advantage of the letter coming from the attorney is that it is not evidence from you.    

Your professional future, the value of a clean license and your rights are of critical importance to our firm.  We know what is at stake when licensees face a California governing body without the aid of an experienced attorney. How you initially respond to a state licensing board investigation or request for records may determine if you get sanctioned, get placed on probation, lose your license, or lose your livelihood. Now that all discipline is on the website, sanctions can adversely affect insurance plans, client/patient confidence and your reputation.


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 administrative law attorney, licensing attorney, and board and bureau investigations 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/

DEA Serves Search Warrant On Beverly Hills Pharmacy In Jackson Case. What Should You Do If Your Business Or Home Is Served With A Search Warrant?

According to an article in the Los Angeles Times, on August 22, 2009, the Drug Enforcement Agency (DEA) served a search warrant on Mickey Fine Pharmacy in Beverly Hills relating to an investigation into Michael Jackson's death. During the search, the DEA agents seized prescription drug records and spent five hours sifting through records at for "evidence of improper dispensing of controlled substances."

Special Agent Jose Martinez was quoted in the L.A. Times as saying that Jackson was known to have prescriptions filled at the Roxbury Drive store, running up a $101,000 drug bill in 2005, which the pharmacy collected after filing a lawsuit. The DEA search, part of a multi-agency investigation into Jackson's June 25 death, suggested that detectives are looking beyond Jackson's personal physician and the role of the anesthetic propofol.

A copy of the Los Angeles Times article can be found at: http://www.latimes.com/news/local/la-me-jackson-pharmacy22-2009aug22,0,4035804.story

Attorney Commentary: If your business or home is the subject of a search warrant, and the police are at the door with a search warrant, what do you do?

1. Do not lose your cool. Act calm (even if you are very nervous and scared). Act professional and respectful with the police or investigators even if you are angry and they are not acting in a professional manner. However, do not speak or volunteer information (see #3 below). If you have a lawyer, call him or her. If there are confidential records (medical or legal), there are certain measures that need to be taken within 72 hours in California state cases.

2. Ask for a copy of the warrant and cards from investigators. A search warrant gives the police the legal authority to search the premises named in the warrant. Ask for a copy of the warrant. Obtain a card from the lead investigator or officer conducting the search. This can help your lawyer determine which agencies are involved in the investigation.

3. You have the right to remain silent. Use it. Do not engage in conversation with the investigators or officers executing the warrant since everything you say is evidence. There is no guarantee that your statements will be accurately reflected in any report. What you say will not help you. Politely decline to answer any questions.

4. Do not consent to a search.  Before you consent to any further searches or any other locations, seek advice of counsel.

5. If you don't have an experienced lawyer, hire one after the search. If a search warrant has been issued, a judge may have determined that there is probable cause to believe you or your business has committed a crime. Or you or your business may be a witness in the case. Regardless of your status as suspect or witness, there is an ongoing criminal investigation. You need to prepare in advance.

There are things that a competent attorney can do to improve your chances of not being charged or things that can later help you win any case that may be filed. The attorney can also evaluate the case early, engage in damage control and, if appropriate, make a presentation to the prosecuting agencies in order to avoid prosecution.

Any questions or comments should be directed to: tgreen@greenassoc.com or 213-233-2260.
Tracy Green is a principal at Green and Associates in Los Angeles, California. Ms. Green focuses her practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. She has significant experience in defending individuals, licensed professionals and businesses in search warrants and investigations.
The firm website is: http://www.greenassoc.com/

Auto Insurance Fraud: Attorney Commentary On Increased Number Of Cases And Effect Of Economic Pressure

The economy is pushing some people over the edge. We are seeing that as times get tougher people of all economic backgrounds are engaging in acts they normally wouldn't commit. For example, there is an increase in people abandoning, torching or damaging their own vehicles to collect insurance or to avoid payments. In other cases, people are submitting claims for auto accidents in which did not occur. This type of conduct is a crime and most false claims can be prosecuted as a felony. Further, insurance claim forms are often signed under the penalty of perjury.

In California, there is funding at the county District Attorney's Offices for these cases -- which makes prosecution more likely. Under the direction of the Insurance Commissioner, the California Department of Insurance makes funds available, as authorized by Section 18971 of the California Insurance Code, to the District Attorney’s Office for investigation and prosecution of automobile insurance fraud. The DA's Offices apply for grants and they are able to use these funds to pay for experienced prosecutors.

Here are four recent cases from the past month involving these types of false insurance claims. Remember that complaints contain only allegations against an individual and all defendants must be presumed innocent unless and until proven guilty.

■ On April 1, 2009, Anthony Razo, a former Los Angeles police officer was accused of torching his 2005 BMW 745 Li, then reporting it stolen and filing insurance claim for the loss in January 2009. Mr. Razo was charged by the Los Angeles County District Attorney’s Office in Case No. BA 354733 with five felony counts and two misdemeanors. The felony counts of insurance fraud, defrauding an insurer and arson on one’s own property pertained to the BMW.

■ On April 1, 2009, Teresa Turbyfill was charged with auto insurance fraud by the San Bernardino County District Attorney's Office. According to the complaint, in November 2008, Turbyfill's husband left the scene of a collision after a hit and run accident in his 2005 Cadillac. He subsequently reported to the Morongo Sheriff's Office that he had been carjacked prior to the hit and run, and that his 2005 Cadillac had later been burned by the suspects and
destroyed in the fire. Teresa Turbyfill allegedly filed an insurance claim listing the vehicle as a total loss due to the arson. The complaint alleges that she did this even after having complete knowledge of her husband's alleged actions.

■ On or about March 27, 2009, Nick Alan Thompson was charged by the San Bernardino County District Attorney’s Office after an auto insurance fraud investigation. The complaint alleges that the owner of a 2007 Suzuki GSX600 motorcycle reported it as stolen for the purpose of insurance fraud. The motorcycle was allegedly given to Thompson so he could dispose of the motorcycle. The motorcycle was found in Thompson’s garage. Thompson was charged, booked and bail was set at $50,000.

■ On February 23, 2009, the San Bernardino County District Attorney’s Office filed felony insurance fraud charges against Paul Fiedler of Pomona. The complaint alleges that in October 2007, Fiedler was involved in a minor traffic accident in the City of Ontario. The police were not called and both parties exchanged information. At the time of the accident, Fiedler had a $1,000 deductible for collision repair to his vehicle on his Geico auto insurance policy. On the day of the accident, he went online to the Geico Insurance website and made a policy adjustment on his $1,000 deductible for collision and changed it to a $150 deductible for collision.

The next day, he again went on the Geico Insurance website and filed an online accident claim, indicating that the accident had occurred on October 26, instead of October 25. He also contacted the other driver, in an attempt to convince him to give a false statement to Geico regarding the date of the accident. The other driver refused to take part in changing the date of the accident and so advised Geico. Fiedler was arrested at his place of business, where he worked as a loss prevention officer. He was booked into custody and bail was set at $25,000.

Attorney Commentary: For those who have filed false claims, the best time to craft a defense is prior to the filing of charges. There are many tactics and strategies that can be done to help unwind bad decisions. Although only a small percentage of false claims are prosecuted, there is no way to know which ones will be prosecuted. We see cases involving smaller dollar amounts being prosecuted. This is especially true with insurance claims since the carriers and NICB will do most of the work in investigating and putting together the prosecution package and evidence for law enforcement.

If you have filed a false claim, have been served with a search warrant or know the claim has been assigned to the Special Investigation Unit (SIU) of the carrier, you should contact an attorney as soon as possible. The best advice is for you not to speak with any investigator (police or insurance) until you have retained counsel and created a strategy on how to handle the matter. Waiting until you are arrested is not the best time to create a strategy.

We see investigators taking arrested defendants to their office and interview them in order to obtain quick confessions. People think that this will help them when all it usually does is create a better case for the prosecution. There are times when cooperation makes sense but it is not after arrest when there is no type of immunity or cooperation agreement in place.

Posted by Tracy Green, Esq.  Any questions should be directed to Tracy Green, a very experienced Los Angeles insurance fraud attorney and Los Angeles fraud attorney. You can email her at tgreen@greenassoc.com or call her at 213-233-2261.

The firm focuses its practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing professionals in criminal matters, including automobile insurance fraud, insurance fraud and other financial crimes in California and throughout the country. 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