Suboxone Practice: Family Practice and General Physicians Need to be Vigilant in Treating Patients. Case Study: Five Physicians Charged with Unlawfully Prescribing and Distributing Buprenorphine

With all the emphasis on treatment for those who have opioid dependency or addiction issues, more physicians are becoming prescribers of buprenorphine 
(known as Subutex and Suboxone). This is an area where providers should be careful especially if they are not addiction specialists. 

There are over 230 physicians listed on the Suboxone website who are within 20 miles of my office in downtown Los Angeles and are prescribing Suboxone. Family practice and general practice physicians need to be very careful in treating patients with buprenorphine, a Schedule III drug, and in determining when there is legitimate medical necessity to prescribe.

CleanSlate Addiction Treatment Centers Settle Qui Tam Allegations of Prescribing of Suboxone by Nurse Practitioners and Physician Assistants Without Proper Physician Supervision and Improper Billing

The addiction industry is facing a great deal of scrutiny at every level. The laws and regulations are changing and compliance is lagging behind. Noble efforts to get patients treated quickly for substance abuse due to the growing opioid abuse epidemic will cause problems if the federal and state laws are not followed carefully especially where Suboxone and other scheduled drugs are involved (due to potential for misuse and diversion). Further, where there is Medicare/Medicaid or insurance billing involved issues of medical necessity, proper billing and proper medical supervision is key.

Treatment centers need to be mindful that federal rules and regulations regarding prescribing and billing must be followed carefully. A recent qui tam case addresses the prescribing of Buprenorphine (Suboxone), a Schedule III controlled substance that also can be used to treat pain, by mid-level practitioners and what happens when federal law changes but state regulations are not adopted. Providers must follow state and federal laws and regulations.  

How did this qui tam case come about? Until recently, only a physician could prescribe buprenorphine for addiction treatment. Congress modified the law in July 2016, allowing nurse practitioners and physician assistants to prescribe buprenorphine for addiction treatment, provided they meet certain training and state-law licensing requirements.  In Massachusetts, those requirements have not yet been established.

A recent case shows the legal issues. On November 22, 2016, the U.S. Attorney’s Office in Boston reached a $750,000 civil settlement yesterday with CleanSlate Centers, Inc. and Total Wellness Centers, LLC d/b/a CleanSlate. This civil settlement resolved allegations that the two companies, which together operate opioid addiction treatment centers in Massachusetts and other states, improperly prescribed buprenorphine (Suboxone®) for opioid addiction treatment and improperly billed Medicare.

Physicians Can Apply for Award Up To $105,000 for Serving In a Medically Underserved Area of California - Apply Dec. 1, 2016 to Feb. 28, 2017

Are you licensed in California and looking for a way to work in an underserved area and get student loan forgiveness? Physicians (allopathic or ostepopathic physician or surgeon) can apply for an award from the Steven M. Thompson Physician Corps Loan Repayment Program up to $105,000 in exchange for a service obligation in a medically underserved area of California. 

The link for the physican scholarship is: http://www.oshpd.ca.gov/HPEF/Programs/STLRP.html 

For more information go the website for this program (and for other health care provider scholarships) at State of California Office of Statewide Health Planning and Development, Health Professions Education Foundation.  There are also scholarships for Registered Nurses, LVNs, Dentists, Physician Assistants, Occupational Therapists, Pharmicists, SpeechTherapists, Certified Midwifes, Nurse Practitioners, and other health care providers and those deadlines vary. Review the website for deadline and application information.

This underserved area covers most of the state and is close to major urban areas. Visit the website link above for the map of the area covered.

Woman Excluded By OIG Indicted For Health Care Fraud for Failing to Notify Employer Home Health Agency of Her OIG Exclusion

In the past, individuals and entities excluded by the Office of Inspector General (OIG) have usually not been prosecuted for fraud. A recent Indictment shows that the government is going to be more aggressive in pursuing individuals excluded by OIG if they fail to notify their employers of their exclusion. 

If OIG excludes an individual or entity it means that no payment can be made by a federal health care benefit program (or state program that received federal funds) for services provided by that individual. 

The United States Attorney’s Office for the Middle District of Pennsylvania announced on March 31, 2016 that China Scott of Pennsylvania was indicted by a federal grand jury for Health Care Fraud for allegedly failing to notify her employer at Cool Waters, a home health care agency that she was an "excluded person" by OIG. Ms. Scott was excluded by OIG due to two previous health care fraud convictions.

According to the Indictment, between November 2015 and January 2016, Ms. Scott provided home health care services to a disabled individual through her employment at Cool Waters, a home health care agency. Since Ms. Waters is an excluded individual, the home health agency cannot receive payments from Medicare or Medicaid or other federally funded programs for her services and must return any payments. Ms. Scott allegedly failed to notify the agency that she is an excluded person.

Indictments and criminal informations are only allegations. All persons charged, including Ms. Scott, are presumed to be innocent unless and until found guilty in court. The investigation was conducted by the U.S. Department of Health and Human Services.

Attorney Commentary: This is a reminder to those in the health care business to run background checks on their employees, independent contractors, and employees of independent contractors who provide services. And simply because Medicare or Medi-Cal or Medicaid is not being directly billed, there are many government programs through HMO contracts, TriCare and other entities that it is very difficult to tell when a patient is Medicare or Medi-Cal (Medicaid) or TriCare.  

In addition, individuals should also check their background since we have seen cases where individuals were excluded and did not know for reasons such as student loan defaults. Finally, if excluded, individuals and entities need to remember that they must apply for reinstatement. It is not automatic. 

Posted by Tracy Green, Esq.

Physician Assistant Sentenced To 14 Months In Prison For Accepting Illegal Kickbacks for Referring Patients to Home Health, Physical Therapy and Medical Clinics

The U.S. Attorney's Office is willing to prosecute criminal cases even where small kickback amounts are at issue. A recent Michigan case shows that even $1,000 kickback payments will be prosecuted.

On January 12, 2016, physician assistant Kyle D. Gandy, who formerly resided in Michigan, was sentenced to 14 months in prison and two years of supervised release for accepting $1,000.00 in illegal kickbacks for referring patients to medical clinics, physical therapy clinics, and a home health care agency. 

As part of this felony conviction, Mr. Gandy was ordered to pay $18,030.17 in restitution, representing the amount of the referred services paid by Medicare and Medicaid. 

PA Gandy will also face collateral consequences from the conviction from his licensing board and he will be excluded from participating with the Medicare and Medicaid programs for at least five years.

New York Physician Assistant Arrested For Conspiracy To Illegally Prescribe Oxycodone

A physician assistant, Michael Troyan, who operated two urgent care clinics on the east end of Long Island was arrested on November 4, 2015 after being indicted on federal charges of conspiring to illegally distribute oxycodone. At the time of his arrest, the DEA executed search warrants at these two clinics: East End Urgent and Primary Care in Riverhead, New York.

The indictment and public filings allege that between November 2011 and October 2015, physician assistant Troyan with authority to prescribe controlled substances, issued prescriptions for thousands of oxycodone pills to co-conspirators for the purpose of illegally re-selling the pills for cash.  PA Troyan was allegedly captured on video in an undercover operation writing medically unnecessary prescriptions for OxyCodone and receiving large quantities of cash at his Riverhead medical office for prior illegal sales.  It is alleged that PA Troyan was receiving half of the profit from the sale of the oxycodone pills.

The DEA is taking great interest in these cases due to the link now determined between heroin addiction and the taking of prescription painkillers.  The federal sentencing laws for distributing OxyCodone are potentially harsh in that if convicted, PA Troyan faces a maximum sentence of 20 years’ imprisonment and a $1 million fine.

Attorney Commentary: In a case like this, there was significant investigation before the Indictment and search warrant was executed including surveillance and recording. There are physicians who also worked at these clinics who were hired by the physician assistant to be his supervisors. While those physicians would not have written the prescriptions, they would have some responsibilites as supervising physician. Long Island has had a signficiant heroin addiction problem and the DEA is being aggressive in investigating physicians and advanced care providers who prescribe painkillers.

Posted by Tracy Green, Esq.

Green and Associates

Work: 213-233-2260

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

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

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

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

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

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

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

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


Posted by Tracy Green, Esq. 

Frequently Asked Compliance Questions About DEA Registration

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

California Medical Board Increases Request For Patient Records From Pain Management Physicians - Be Proactive Now And Stay Current

Physicians who treat for pain management physicians are clinicians. They did not go to medical school to become DEA agents, police officers or judges -- even though in today's climate it can seem like they feel pressured to take on these roles. In California and other states, physician who prescribe opioids or controlled substances for pain treatment are under greater scrutiny and have a greater chance of having their records requested by the Board or the DEA for review.

The Los Angeles Times ran an article entitled "Oxycontin maker guards its closely guarded list of suspect doctors" about Purdue Pharmacy and how it has sold $27 billion worth of Oxycontin since 1996. It criticizes the company for not alerting law enforcement or medical authorities to the physicians who are suspected of overprescribing or illegal prescribing. This is part of a series of stories ran by the Times regarding prescription drugs and is a reminder that practitioners in this field are currently under a microscope.

We have had a number of clients whose records have been reviewed by the Board to see if their patient care for pain management was within the standard of care. The request for records are often triggered by a single complaint (such as a pharmacy complaining about overprescribing for a single patient). The Board runs the CURES report on the physician and selects for additional review 8 to 10 patients who are younger, middle-aged or on high opioid treatment dosages or where there are some other red flags with these patients.

In these cases, it is important to get legal counsel immediately even for a consultation to ensure that you are well prepared for any interview and that your complete file is submitted (and in many cases with a summary of the patient's care). In some of our cases, we found weaknesses in our client's practices and procedures and while not conceding any problems, we made positive changes immediately and it was helpful in showing that we had responsible professionals who are staying current with the changing landscape. In some cases, early expert retention may be needed or we found that a patient or two was diverting medications and had to make adjustments at that point.

If pain management treatment is part of your practice, it is time to perform an audit of your practice and make sure that your record keeping, consent forms, screening tools, treatment agreements, referrals for depression, referrals to other physicians as needed, patient education forms, and monitoring practices (urine testing, CURES reports, pill counting, etc.) are keeping up with the changing standard of care and changing laws and regulations. Do you modify your treatment plan when the patient reaches in excess of 120 mg morphine equivalent dosage (MED)? Do you document with specifics how the benefits of opioid treatment outweigh the risks? Build this into your staff and practice so it's part of the process.

It is becoming more important to have "universal" precautions in dealing with patients to ensure there is no risk of diversion. We have had clients who run urine tests and CURES reports on some patients but not on others who seem low risk. However, you cannot simply assume that just because someone is elderly (for example) that they do not pose a risk for diversion. This also makes it easier in your practice in that you then can tell the patients -- this is how we manage everyone -- and they do not take it personally. Drug tests are becoming the standard of care since you're ensuring that the patient is taking the medication as prescribed and that there is not diversion. CURES reports are also the standard of care now since you're ensuring that the patient is not doctor shopping.

Keep up with new monitoring methods. For example, one relatively new practice is to have the patients bring their pill bottles in for a "pill count" (sometimes randomly) -- especially for high risk patients -- for additional monitoring. Follow up on any issues raised by family members or the patient (nodding off during the day, sleep issues at night, preoccupation with the prescribed opioid, etc. Use the opioid risk management tools to assess the patient especially since many of these such as SOAPP are available free on the Internet.

For those in California, review the California Medical Board website on pain management periodically for updates on pain guidelines. even though it is behind the times and do not set forth in detail the standard of care and medical necessity -- but it is does set forth the basic law and policies of the Board.  

Chronic pain is complicated and implementing audits for your practice will not only help with any investigation by the Board or DEA but will also help protect yourself against any potential malpractice case and help prevent any potential criminal liability. The law is clear that unless there is legitimate medical purpose for prescribing scheduled narcotics -- the prescription is not legitimate. If the records are not sufficient or if the patients are diverting medications, there can be a criminal or DEA investigation. We have also represented physicians in criminal investigations, search warrants and criminal cases involving pain management medications -- and our goal is to prevent such cases and investigations.

With the issue of prescription overdose deaths featured prominently in the press, physicians need to take these issues seriously even if they are board certified pain management specialists. We help practitioners ensure legitimate patients' access to appropriate pain care and the right of physicians to practice responsible pain medicine.

Posted by Tracy Green, Attorney at Law
Green and Associates,
(213) 233-2260
Email: tgreen@greenassoc.com

New Rules Require Revocation Of Physician Assistant License If Registration As Sex Offender Required - Critical To Have Chaperones And Be Careful Of Plea Agreements Involving Sexual Issues

Over the years I have represented physicians, physician assistants, nurses and other health care professionals who have been accused of unlawful "touching" by a patient. In a number of these cases, the allegations were false. For example, one high profile gynecologist was accused of sexual touching when he conducted a breast exam of a 55 year old woman with fibroid breasts both with her laying down and sitting up. Since she had never had a breast exam where she was sitting up, she made a complaint. The complaint was dismissed but it was an unpleasant interview for the physician to go through simply because he was being thorough.

A few years ago, a physician assistant was accused of sexual touching because he placed the stethoscope just under the area near the breast while he listened to the heart -- very standard routine exam. The complaint was dismissed but only after an interview and investigation.

Recently, I was asked to consult on a case where a physician was charged criminally with a violation of Business & Profession Code 726 which prohibits sexual contact with patients since the physician had consensual oral sex with a patient.

Currently, I am representing a health care professional who is accused of touching a woman's breasts over the clothes during an exam. The case has been filed criminally since the same complaint was made by two different women and the present plea offer is a misdemeanor but with a requirement that he register as a sex offender. The sex offender registration is part of the regular plea offer. In his case, it would not be a bar to practice but if he were a physician assistant it would be a bar.

The Physician Assistant Committee in California has decided to increase the level of discipline for any physician assistant who has had sexual contact with a patient or who has been convicted of  a sex offense as defined in Section 44010 of the Education Code. Under the revised California Code of Regulation 1399.523 there is a finding that any proposed decision "shall contain an order revoking the license" and that "[t]he proposed decision shall not contain an order staying the revocation of the license."

What does this mean? First, if a physician assistant has sexual contact with a patient in violation of Section 726 or is convicted of any sex offense defined in Education Code Section 44010 which includes any registration as a sex offender -- the physician assistant's license will be revoked and is not eligible for probation.

For those unfortunate enough to be charged with any offenses related to sexual touching or gratification, any defense or plea of such charges needs to consider this important change.

For those that are practicing, it is critical that the use of chaperones -- especially for male PAs -- be considered as a routine policy. It should be essential during physical exams especially during breast and pelvic exams. However, all the patient needs to allege are things like touching a breast over clothes, rubbing a penis against a leg during a physical exam -- and there can be a critical issue. I have seen such allegations and they seem to be increasing for a variety of reasons and most of the cases I have handled have been false or exaggerated claims.


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 physician assistant attorney, health care attorney, and California Board 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 health care providers in California and throughout the country. Their website is: http://www.greenassoc.com/

Frequently Asked Questions: What Do I Need To Know About Completing My Professional License?

Ten 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. Start the licensure process early especially if you believe you may have some background issues that require explanations.  It can take months to become licensed and the Board will not hurry the process just because you have a job waiting. The investigation process can take time and staff cutbacks in government agencies often mean lengthier delays.

If you think you may have difficulty getting licensed, start early (while you are in school even) and hire an experienced administrative lawyer to assist you with drafting the explanations and putting together a package for the Board.  Even hiring a lawyer for a two hour consultation will serve you better than relying on the well-meaning but uninformed advice of friends, students or other professionals.

2. 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. In other words, you must be truthful in completing the application. 

3. If you do not complete the forms or questions accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. We have had many clients who came to us after they failed to disclose information in an application and had their license application denied. If there are background issues that will come up in the LiveScan, you are better served in disclosing those matters in the best way possible.

4. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. Do not rely on friends or classmates for advice. Go to a professional especially where you believe you may have problems getting licensed due to a prior criminal conviction or prior alcohol or drug abuse problem.  

5. Some of the questions are vague or ambiguous. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation. It is always safer to err on the side of caution and full disclosure. If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. 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.

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.

6. 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.

7. 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.

8. 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 often go above and beyond what is required in the application in order to increase the applicant's chances of having his or her application approved.  

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.

9. Do not attempt to persuade Board representatives of your position. We have had clients who failed to submit a well drafted application package but decided to telephone Board representatives or members or write letters to the Governor to lobby their case. The best step is to prepare the application package as professionally as possible seeking advice of counsel if needed. Any meetings with Board representatives should be with counsel present. Finally, be careful of trying to lobby and persuade Board members, representatives or other political officials of your position unless you are doing it with the advice of an experienced professional. It can backfire and the Board representatives often take notes that do not aid your case.

10. Maintain a copy of the application you submit. We represent clients who failed to keep copies of their submissions. This makes it difficult to know what went wrong with their application.

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. 

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

Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 15-minute consultation.  Ms. Green's office is located in Los Angeles, California.

Sample Victories in Administrative and Licensing Cases - Many Which Followed Criminal Investigations Or Convictions

Often I get asked the question about what kind of results we obtain in cases. I might jokingly say that lawyers are like gamblers: you only hear about their winnings. However, we have obtained some excellent results even though every case is different. 

Some cases are true damage control cases while others clearly should not rise to the level of discipline. Quite a few are in the middle. I am a believer in working on the mitigation side of the case as early as possible, securing experts and creating good facts for the client. This often takes educating a client about what it takes to get a case closed without discipline especially as Board's have gotten harsher on the discipline these past 5 years. 

The following true cases are examples of our dedication to our clients and the quality of our work:

Medical Board of California

Petty Theft Arrests And Dispositions Results in No Disciplinary Action (2011)

Doctor client had been charges twice with shoplifting. In the first case, the doctor completed a diversion and the misdemeanor charge was dismissed. In the second criminal case, in which we represented her, she was charged with felony theft and we were able to reduce the charge to an infraction after a diversion. After assisting client with disclosures to the Board, the matter was closed without any discipline. 

Four Misdemeanor Convictions Results in Probation With No Suspension Time (2011)

Doctor client had been convicted of DUI in 2011, disturbing the peace in 2010, DUI in 1995 and DUI in 1994. Aggravating factors were an arrest for DUI with no charges filed after refusal to take a blood or breath test and an arrest for public intoxication with no charges filed. We worked on creating a sobriety program with the doctor after the 2011 DUI arrest but before the Accusation was filed. Once the Accusation was filed we worked with the client on the mitigation package. The matter was settled before hearing for probation with no suspension time. 

Criminal Conviction Mandated Reporting Results in No Disciplinary Action (2010)

Doctor client had been charged with Medi-Cal fraud and we represented her in the criminal case. After the preliminary hearing, we filed a motion to dismiss and the charges against her were dismissed but one of her nonmedical corporations plead to a criminal count since there was billing for services not provided and she was an officer of the corporation. After assisting client with mandated disclosures to Board and an interview and submission of mitigating evidence, matter was closed without discipline.

Felony Criminal Conviction For Fraud Results in Probation With No Suspension Time (2010)

Doctor client had been charged with Medi-Cal fraud with over $300,000 in restitution and we represented him in the criminal case. There was devastating evidence as the clinic was run by managers who used the doctor's license to commit fraud (prescriptions for power wheelchairs, hospital beds and unnecessary diagnostic tests). After assisting client with mandated disclosures to Board and an interview, we sought to settle the matter. The Board insisted on revocation of license. After a hearing with excellent mitigation evidence and an expert witness, the hearing officer imposed probation with no suspension time and the Board adopted the decision. 

Workers Compensation Complaint Results in No Disciplinary Action (2010)

Internist doctor client had seen a workers' compensation patient for a limited purpose (high blood pressure). The patient did not have any health insurance and had other health issues for which he was not authorized to be seen by the workers' compensation doctor. The doctor's charting was problematic, the referrals to other providers were not documented and the notes were minimal. We had the doctor sign up for a charting class before the Medical Board interview, submitted mitigating evidence regarding the role of a workers' compensation doctor in treatment, and presented other mitigating evidence.  The matter was closed without discipline. 

Nursing Board of California

Texas Probation Results in No Disciplinary Action On California License (2011)

Nurse maintained her California license after she moved to Texas. Nurse was placed on probation in Texas and successfully completed probation. California opened a complaint here in California for failure to report her Texas discipline and for the underlying case in Texas. We submitted a detailed response and mitigation package requesting that the case be closed without any discipline in California. After assisting client with disclosures to the Board, the matter was closed without any discipline. 

DUI Conviction and Failure to Comply With Diversion Program Resulted in Board Filing Petition to Revoke Probation - Probation Reinstated After Hearing (2011)

Nurse was convicted of DUI and placed on probation with required participation in diversion program and drug/alcohol testing. Nurse missed numerous testings. Board filed petition to revoke probation. We reached a settlement reinstating probation with an additional year of probation after submitting an extensive mitigation package. The Board of Nursing refused to adopt the settlement and demanded we go to hearing. The Board sought revocation of the license. After a hearing, the hearing officer issued a decision reinstating the license with an additional year of probation.   

Physician Assistant Board of California

Medical Marijuana Compliant Results in No Disciplinary Action On California License (2011)

Physician Assistant was performing physical examinations on patients for medical marijuana recommendations. Physician Assistant Board's position was that only a medical doctor can perform such examinations and that the examinations cannot be delegated. After assisting client with submissions to the Board and an interview, the matter was closed without any discipline. 

Inserting Non-FDA Approved IUDs Results in No Disciplinary Action On California License (2009)

Physician Assistant was inserting IUDs on low income patients in the Medi-Cal program which turned out to be non-FDA approved and made in Canada. After assisting the client with an audit by Medi-Cal, making disclosures to patients, we helped him respond to the Board complaint. After assisting client with submissions to the Board and an interview, the matter was closed without any discipline. 

Physical Therapy Board of California

Misdemeanor Conviction for Carrying Firearm in Public Place  Results in Public Reproval (2011)

Physician Assistant was convicted of misdemeanor of carrying a firearm in a public place and had the added fact of being in the possession of marijuana legally with his medical marijuana recommendation due to a disability.  After presenting the legal arguments, mitigation package and a settlement conference, the matter was resolved with a public letter of reproval.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 15-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 and hearing attorney at tgreen@greenassoc.com. 

Why Does Medicare Fraud Occur More Frequently In Clinics Run By Managers? Los Angeles Clinic Manager Sentenced To 60 Months For Using Physician Identities To Write Unnecessary Prescriptions And To Bill Medicare

One of the frequent fact patterns we see in California is the presence of "managers" or "management companies" in health care fraud cases. Why is that? It has to do with California's prohibition that prohibits non-physicians from owning medical practices. It also has to do with some of the people that open health care businesses without realizing the level of regulation and the potential consequence of not following the rules and regulations. When business people want to open a medical practice in California, they need to open the clinic in a doctor's name and sometimes the doctor is a nominal owner and he has little or no control over the practice and relies on the managers to run it properly. 


A recent case illustrates the ugly side of health care fraud involving unscrupulous managers. On January 9, 2011, Carolyn Ann Vasquez, 47, from Los Angeles medical clinic manager, was sentenced to 60 months in federal prison after having pleaded guilty to using fraudulent medical clinics and the stolen identities of physicians to defraud Medicare of more than $6.2 million.  U.S. District Judge Consuelo B. Marshall of the Central District of California sentenced Ms. Vasquez and also ordered her to pay $6.2 million in restitution. 

Originally, Ms. Vasquez was charged with two other persons: (1) physician assistant David Garrison and (2) co-manager Eduard Aslanyan.  Mr. Aslanyan pleaded guilty in April 2011 to conspiracy charges related to this case and is scheduled for sentencing on February 6, 2012. David Garrison, a physician assistant who worked at the fraudulent medical clinics with Vasquez and Aslanyan, is scheduled for trial on January 24, 2012. Mr. Garrison has a prior state health care fraud case that may be complicating his sentence that also arises from working at a clinic run by a manager.


In March 2011, Mr. Vasquez pleaded guilty to conspiracy to commit health care fraud. In her plea agreement, Ms. Vasquez admitted that from 2007 to 2008, she conspired with others to use a series of fraudulent Los Angeles-area medical clinics to defraud Medicare. Ms. Vasquez admitted that her co-conspirators used the identities and Medicare provider numbers of physicians who both worked and did not work at the clinics to submit false claims to Medicare for reimbursement for services the physicians did not perform and for power wheelchairs, medical equipment and diagnostic tests that the physicians did not order or prescribe. So the physician is not at the clinic but his name is on the prescription pads that are signed by the PAs or the manager using a stamp signature or even forging the name, and he may have no idea that power wheelchairs are being prescribed to patients and only look at the medical chart that shows a routine medical visit with no improper billing at the medical clinic.  


According to court documents, Ms. Vasquez physician assistants recruited to work at the clinics by Vasquez, and working at her direction and the direction of others, performed services that were medically unnecessary and prescribed and ordered the wheelchairs, medical equipment and diagnostic tests that were medically unnecessary.

According to court documents, Ms. Vasquez obtained access to physicians’ personal and Medicare information, which she stole to further the fraud scheme at the medical clinics. For example, Ms. Vasquez admitted that in approximately 2007, a physician contacted her about a job at one of the medical clinics, but the physician decided not to accept the job. Nevertheless, Ms. Vasquez’s clinic printed prescription pads with the physician’s name and Medicare provider number on them. Ms. Vasquez admitted that she instructed a physician assistant working at one of the medical clinics to use the prescription pads to write fraudulent prescriptions and medical documentation for diagnostic tests, power wheelchairs and other medical equipment in the physician’s name even though Ms. Vasquez knew that the physician did not work at the clinic.


Attorney Commentary: For those managers that are unethical or are seeking a doctor's license to use for their own purpose, they will target doctors who are desperate for money, older or have some other issues (alcoholism, depression, etc.) and use that doctor's license and NPI number to run their business without regard for how it will ruin the doctor's provider numbers, expose them to great financial liability and jeopardize their license. In some cases, there is actual identity theft of the physician's license and NPI number. 


In many cases, the clinics offer to employ the physician, pay them several thousand dollars per month and tell the physician that they do not have to come to the clinic except once or twice a month since a Physician Assistant (PA) is seeing the patients and all that the physician needs to do is to supervise the PA. The manager will reassure the physician that the clinic is well run and has been in business for years without any issues. For physicians who are looking for extra easy money, they often fall prey to these offers without seeking legal counsel about the legality and fail to do any due diligence about the managers running the clinic. 


What the physician or physician assistant often do not know is that the manager also has ownership interest in other businesses related to the clinic: pharmacy, durable medical equipment, diagnostic company, etc. Even if the manager does not make much money on the medical clinic, the prescriptions for these ancillary services can be very profitable. So everything can look pretty good at the clinic but if someone is not paying attention to the prescriptions for potentially unnecessary ultrasounds, DME (expensive wheelchairs or beds) or drugs, the fraud may not be apparent to the physician. 


In the Vasquez case and other cases, all that the manager needs to do is to post an advertisement in the Los Angeles Times or other publication and unsuspecting physicians will fax in resumes that list all their identifying information. Physicians should be very careful in sending identifying information in response to job ads and should not list license or DEA or NPI numbers unless and until they have done due diligence on the medical clinic. 


In addition, in any situation where there is a mangement agreement, physicians should have their own legal representation to ensure that the arrangement is legal and that there is little or minimal chance for any fraudulent conduct to occur. Physicians and those in the health care field often tend to be trusting but trying to clean up fraudulent billing and identity theft -- including the loss of a provider number or addressing a large overpayment incurred -- can take years and can be very expensive.  Practice preventative measures BEFORE you enter into any such arrangements.

Posted by Tracy Green, Esq. 

Any questions or comments  should be directed to Tracy Green, a very experienced California health care fraud attorney  and California Medicare fraud attorney at tgreen@greenassoc.com.

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

The firm Green and Associates 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 health care providers and in health care fraud related matters in California and throughout the country. 

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/