Former California Physician Sentenced to 2 Years in Federal Prison for Defrauding Medicare by Prescribing Unnecessary Home Health Services for Kickbacks and Illegally Prescribing Opioid Drugs

Physicians who order home health where it is not medically necessary can be charged with Medicare fraud. If that same physician orders medications, especially controlled substances, without seeing the patient on a regular basis, that can be another ground for a fraud charge. 

The loss amounts can be huge since the physician will be held responsible for the total amount of billings by the home health agency and the pharmacy's prescriptions. A recent case illustrates a physician who ordered home health in exchange for payments and then also prescribed some pain medications that were medically unnecessary.  

On January 6, 2020, Kain Kumar, a former doctor, was sentenced to 24 months in federal prison after having pleaded guilty in April 2019 to one count of health care fraud and one count of distribution of hydrocodone. Mr. Kumar practiced internal medicine, maintained medical offices in Palmdale, Rosamond, and Ridgecrest, California and surrendered his medical license last year.

He was sentenced by U.S. District Judge Philip S. Gutierrez. Mr. Kumar was also ordered to pay financial penalties totaling more than $1 million, consisting of $509,365 in restitution, $494,900 in asset forfeiture, and a $72,000 fine.

Two California Brothers Plead Guilty in Conspiracy to Distribute Prescription Drugs Through Sham Medical Clinics That Hired Allegedly Corrupt Doctors

Physicians and other health care providers  should always be careful when answering advertisements for clinics, especially when run by non-physicians. One recent case shows what happens when physicians' identities were stolen for prescribing purposes. In addition, other physicians were hired and are facing their own issues.

On April 16, 2019, two Los Angeles area brothers Minas Matosyan (age 38) and Hayk Matosyan (age 32) pleaded guilty to federal criminal charges, admitting that they conspired to distribute controlled substances, such as hydrocodone and oxycodone via sham medical clinics that hired doctors who wrote fraudulent prescriptions to black market customers. 

According to the plea agreement, in May 2016, Minas Matosyan spoke with a doctor and offered him a “very lucrative position” where the doctor would “sit home making $20,000 a month doing nothing,” according to the plea agreement. After the doctor declined the offer, Minas stole the doctor’s identity, sending a co-conspirator a text message containing the doctor’s full name, medical license number and national provider identifier number that the co-conspirator used to order prescription pads in the doctor’s name. 

Why Are Older Physicians More At Risk for Criminal Prescribing Charges? Recent Case: Older Santa Rosa Doctor Indicted For Unlawfully Prescribing Fentanyl And Oxycodone

I often see older physicians caught up in criminal prescribing cases. Part of it may due to impairment and part of it may be due to trusting others including patients. Older physicians need to seriously question their conduct and business arrangements since failure to follow the standard of care can be criminal if it involves scheduled drugs. The standard of care for pain management has changed drastically the last 10 years and the record keeping requirements have also increased.  

A recent case illustrates this issue. On October 2, 2018, a federal grand jury indictment against Santa Rosa neurologist Thomas Keller, age 72, was unsealed charging him with distributing Schedule II and IV controlled substances outside the scope of his professional practice and without a legitimate medical need. Dr. Keller was also charged with two counts of health care fraud related to billing. An indictment merely alleges that crimes have been committed, and Dr. Keller, like all defendants, is presumed innocent until proven guilty beyond a reasonable doubt. 

According to the indictment filed September 27, 2018, and unsealed on October 2, 2018,  in June of 2017, Dr. Keller, 72, of Santa Rosa, was a licensed physician when he knowingly distributed Oxycodone to a person knowing that the distribution was outside the scope of his professional practice and not for a legitimate medical purpose.  

Former California Medical Doctor Sentenced To Over Three Years In Prison For Unlawfully Prescribing Oxycodone to a Patient. Judge Noted Doctor Did Not Run a Pill Mill But Feeding One Patient's "Habit" Is Enough.

Previously, only physicians who went far over the line and ran "pill mills" got targeted for prosecution. Times have changed. One recent case shows a prosecution for a prescription of opioids to a single patient over a couple of years who was an addict. That patient died and local police declined to file charges so federal charges were brought on the prescribing.

On September 18, 2018, former California physician Christopher Owens was sentenced to 41 months in prison for unlawfully prescribing oxycodone hydrochloride without a medical purpose. The sentence was handed down by the Judge Alsup, U.S. District Judge in San Francisco, California.

The former Dr. Owens pleaded guilty on March 20, 2018.  In sentencing Dr. Owens, Judge Alsup stated, “[Owens] was not running a pill mill, . . . but he was doing something just as bad . . ..  He used that prescription pad to feed a habit.”  

Dr. Owens acknowledged he prescribed the drugs without a legitimate medical need and outside of the course of medical practice.  According to his open plea application filed with the court, Dr. Owens of Indianapolis, Indiana was a medical doctor when he prescribed oxycodone hydrochloride, a Schedule II controlled substance, to an individual. His guilty plea came after an Indictment. On July 11, 2017, a federal grand jury indicted Dr. Owens charging him with distributing oxycodone without a medical need, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).  

In addition to the prison term, Judge Alsup ordered Owens to serve three years of supervised release to begin after his prison term is completed and a $7,500 fine. Judge Alsup ordered Owens to surrender and begin serving his sentence on December 3, 2018.  As a consequence of the issues in this case, Dr. Owens lost his license to practice medicine.

 

After Losing At Trial, Mississippi Physician Sentenced to 42 Months in Prison for Role in Prescribing Allegedly Medically Unnecessary Compounded Medications to Patients and for Falsifying Patient Records to Make it Appear He Had Examined Them Before Prescribing

Physicians who consider "telemedicine" or writing prescriptions to patients they have not physically seen or any other unusual arrangement for seeing patients and prescribing medications or supplies should consider a recent case. 

In this case, a 78 year old Mississippi physician, Albert Diaz, M.D., went to trial after the key people in the compounding pharmacy and marketing plead guilty. I often see older or impaired physicians get brought into these arrangements and this case fits the pattern.

On March 2, 2018, after a five-day jury trial, Albert Diaz, M.D. in the Southern District of Mississippi was convicted of one count of conspiracy to commit health care fraud and wire fraud, four counts of wire fraud, one count of conspiracy to distribute and dispense a controlled substance, four counts of distributing and dispensing a controlled substance, one count of conspiracy to falsify records in a federal investigation and five counts of falsification of records in a federal investigation. 

On June 8, 2018, Dr. Diaz was sentenced to 42 months in federal prison and was denied bail pending surrender. According to government evidence presented at trial, between 2014 and 2015, Dr. Diaz participated with others in defrauding TRICARE and other insurance companies by prescribing medically unnecessary compounded medications, some of which included ketamine, a controlled substance, to individuals he had not examined.  The government's trial evidence claimed that, based on the prescriptions signed by Dr. Diaz, Advantage Pharmacy in Hattiesburg, Mississippi, dispensed these medically unnecessary compounded medications and sought and received reimbursement from TRICARE and other insurance companies totaling more than $3 million. 

Southern California Physician Indicted For Illegally Prescribing Controlled Drugs Including to Out-of-State Residents Without an In-Person Physical Examination

The investigations of physicians for prescribing scheduled drugs to patients including Oxycodone, Xanax, Soma and other medications continues. Last week on July 6, 2017, a physician Jeffrey Olsen D.O. was Indicted in the Central District of California, Case No. SA CR-17-76. Dr. Olsen is presumed innocent and an Indictment is not evidence. 

One issue I have with these criminal cases is that in order to "catch" the physicians, the DEA will wait for a year or more to get the "evidence" to support criminal cases. In Dr. Olsen's case, the charges date from 2013 to January 2016. While it is not clear here, most cases I see have the government investigators sending in undercover agents and seeking to get evidence to support the criminal charges. In the meantime, allowing the physician to continue to prescribe. Public safety is being sacrificed to make sure the "criminal" case is as open and shut as possible. 

In Dr. Olsen's case, the DEA went in on or about March 18, 2016 and suspended his DEA registration. There was no arrest or charges at that point in time but I suspect that his charts were seized or reviewed by the DEA.

The Indictment alleges that Dr. Olsen allegedly sold prescriptions to addicts and drug dealers in exchange for fixed cash fees, without any medical basis for the prescriptions. It is also alleged that during the investigation, Dr. Olsen also sold hundreds of prescriptions to addicts in other states, such as Oregon, without ever seeing the “patients” for an in-person examination. 

It is alleged that in text messages to these out-of-state customers, Dr. Olsen allegedly told customers that, in exchange for fees up to $3,000, he would write prescriptions for them. It is alleged that Dr. Olsen let the patients select the medications and that he failed to follow the standard of practice and determine whether they were actually taking the prescribed drugs or whether they were getting additional narcotic prescriptions from other doctors. 

It is alleged that Dr. Olsen's prescriptions resulted in more than 1.2 million pills of narcotics, which were almost entirely at maximum strength, in addition to hundreds of thousands of pills of other controlled drugs such as the sedatives Xanax and Soma. Dr. Olsen was charged with 34 counts of drug related charges under 21 U.S. Code Section 841(a)(1) for "distributing" oxycodone, amphetamine salts, alparzolam and hydrocodone to various patients who are listed by initials in the Indictment. 

One questions why the Medical Board is not used to get an immediate administrative suspensions along with DEA when there is significant evidence of improper prescribing. Is it wise for the government to wait one or two years to "investigate" and build criminal cases just to make sure they can get high sentences against physicians? 

The final count was for a violation of 21 US Code Section 843(a)(4)(A) for making an alleged False Statement in a DEA Registration Application. This relates to Dr. Olsen applying for DEA registration on or about May 23, 2016 and failing to disclose his DEA suspension on March 18, 2016. It is critical for physicians to ensure they do not make any misrepresentations in filling out these forms.

It is not clear if the government offered Dr. Olsen the opportunity to plea or cooperate before Indictment. However, these charges are heavy handed and could expose Dr. Olsen to 20 years' in custody and a mandatory minimum term. I still wonder what would have happened if the conduct had been stopped back in 2013 or 2014.

Posted by Tracy Green, Esq.

Green and Associates

Email: tgreen@greenassoc.com

Office: 213-233-2260

Indictment Filed Against Northern California Physician For 36 Counts of Unlawfully Distributing Oxycodone by Prescribing It "Outside the Course of Usual Professional Practice"

When it comes to prosecuting physicians for unlawful prescribing of opioids or scheduled drugs, federal authorities have more stringent laws and sentencing guidelines. Recently a physician was arrested last year by the San Francisco District Attorney's Office and charges were not filed. However, just more than six months later federal charges were filed against the same physician. 

On or about July 11, 2017, Christopher Owens, a physician licensed to practice in California, was indicted on charges relating to unlawfully prescribing oxycodone. Dr. Owens now lives in Indiana but previously practiced at UCSF. Dr. Owens is presumed innocent and charges in an Indictment are not evidence. The DEA is one of the investigating agencies and can also proceed administratively against the physician.

The Indictment alleges that over a three-year period between September of 2012 and June of 2015, Dr. Owens intended to act outside the course of usual professional practice and without a legitimate medical purpose when he prescribed oxycodone on numerous occasions.  In sum, Owens is charged with 36 counts of distributing oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Each count of oxycodone prescription can carry a separate long sentence.

Dr. Owens was arrested on Tuesday, July 11, 2017, in Indianapolis, Indiana, and was to appear in Indiana before a U.S. Magistrate Judge for a detention hearing on Monday, July 17th. He will then be ordered to appear in San Francisco federal court.

Dr. Owens was a well known vascular surgeon who had privileges at UCSF. He was placed on administrative leave back in June 2016 according to UCSF just a few days after his girlfriend passed away due to a drug related overdose. Later, UCSF reported that they revoked his privileges in October 2016. 

Then in early November 2016, the San Francisco DA's Office filed 99 counts for distributing, prescribing or giving away controlled substances against Dr. Owens. The charges were dismissed and it seems there was a decision to allow the federal authorities to pursue the case.  

These federal charges for prescribing or distributing oxycodone can be very serious with sentences up to 20 years and a mandatory minimum 10 year sentence. The mandatory minimum sentence can be negotiated with a plea agreement but when the government picks and chooses the prescription counts, these cases can be difficult to defend unless there was legitimate medical need for the prescription. It is usually a battle of the experts and a microscope is taken to the medical records and the patients' prior medical history.

In addition to the criminal case, the physician will also face the DEA and the Medical Boards of each state in which he is licensed. There can also be potential malpractice cases although each of the prescriptions are more than two years old. Publicity can bring out malpractice cases. Collateral consequences of this type of case is often as punishing as the potential prison time and fines. 

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

Pennsylvania Physician And One Other Plead Guilty To Health Care Fraud Charges Arising From Writing A Fraudulent Prescription in Another Person's Name

Writing a prescription in another person's name is a fraudulent prescription. When that visit or prescription in the other person's name is billed to Medicare or insurance, then there is also health care fraud. When a Schedule II drug is involved, there is also a potential drug count.

On January 15, 2016,  Dr. John Terry and Stephen Heffner, Jr. pleaded guilty before Chief United States District Court Judge Christopher C. Conner in Williamsport, Pennsylvania.

According to the plea agreement, in April 2013, Dr. Terry caused Medicare to be billed for fraudulent prescriptions intended for Mr. Heffner knowing that Mr. Heffner was not his patient and that the Oxycodone was not actually intended for Mr. Heffner but for Dr. Terry’s patient, David Hatch of New York.  Medicare paid for the prescription received by Mr. Heffner but actually delivered to Mr. Hatch.

California Medical Doctor and Wife Plead Guilty to Obtaining Prescription Drugs for Themselves Prescribing Under Fake Patient Charts. Charge is Conspiring to Acquire Controlled Substances by Fraud and Deception

Drug addiction hits doctors and professionals. We have represented numerous physicians, nurses, attorneys, and professionals with drug and alcohol addiction. Sometimes, the addiction issues create criminal issues in addition to licensing isuses. 

This week, a physician and his wife a MFT intern, who have admitted to addiction issues, pleaded guilty in federal court for improperly obtaining prescription drugs through self-prescribing by the husband doctor.

On December 16, 2015, Dr. Matthew Cole, a dermatologist at Insight Dermatology with offices in San Diego and National City, and his wife, Shireen Cole, who are both in drug treatment programs, pleaded guilty to prescription drug-related charges. They admitted that they conspired to obtain scheduled pharmaceutical drugs commonly known as Percocet, Xanax and Ambien by submitting fraudulent prescriptions to pharmacies as if they were valid.

Dr. Cole used his own prescription pad with his assigned DEA registration number to write prescriptions in the names of friends with whom he had no doctor-patient relationship, and who had no knowledge of the prescriptions written in their names. He also wrote prescriptions for his wife using her maiden name.

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

September 26th is National Prescription Drug Take-Back Day. Be Careful With Your Excess Prescription Medications.

Today, September 26th, is National Prescription Drug Take-Back Day. 

It’s a day where you can safely, conveniently, and responsibly dispose of expired and unwanted prescription drugs at collection sites in your community. 

This way no one else takes your medications in a way not intended. It used to be that we had to lock up our liquor cabinets, but now we need to lock up our medicine chests and make sure that no one has access to controlled substances. Young people especially may view these prescription drugs as "safe" and not be aware of the danger when they take them in excess of as prescribed or when they are mixed with other drugs or alcohol.

Whether it is that someone might use them for unintended purposes (such as recreational partying or getting high) or may use them to harm themselves or end their life, we have to be careful. Here’s why this matters: More Americans are dying from drug overdoses by improperly using prescribed medications. 

Here's a link on where you can take the drugs. Enter your zip code. Flushing down the toilet affects our drinking water and it is preferable to have them destroyed.  Throwing them away is not ideal either. This is the safest way to make sure the drugs are destroyed in the proper manner.  Physicians and Pharmacists can encourage their patients to do so as well.

http://www.deadiversion.usdoj.gov/drug_disposal/…/index.html

Posted by Green and Associates, Attorneys at Law.

FAQ About Rescheduling All Hydrocodone Combination Products from Federal Schedule III to Federal Schedule II

We have received questions from physicians and pharmacies about the new DEA rules for hydrocodone combination products (HCPs).  Effective October 6, 2014, the DEA rescheduled HCPs from federal Schedule III to federal Schedule II.  This change impacts how hydrocodone combination products are prescribed and dispensed in California. Federal requirements for prescribing and dispensing Schedule II controlled substances will apply to all hydrocodone combination products. This means, among other thing, a very limited ability to orally prescribe HCPs (see below) and ability to authorize refills.

This “up scheduling” is a major change for California. According to CURES, over 1 billion dosage units of HCPs were dispensed last fiscal year in California. HCPs are the most frequently prescribed opioid in the United States: nearly 137 million prescriptions for HCPs were dispensed in 2013.

Here are frequently asked questions and answers: 

Question 1: Does this mean California law has also reclassified ALL hydrocodone combination products as Schedule II controlled substances?

Answer 1: This is a technical question where federal law governs. Technically, there has been no equivalent change to California law, or to the controlled substance schedules in California. But for many intents and purposes, the practical effect will be the same: that all prescribers and practitioners in California will be required to treat HCPs as Schedule II controlled substances.

Question 2: Are prescriptions written for HCPs before October 6, 2014 that are presented to the pharmacy for dispensing on or after October 6, 2014 to be dispensed as a Schedule II or Schedule III controlled substance? 

Answer 2: If the prescription is first presented on or after October 6, it must follow federal Schedule II requirements. For example, this means no HCP prescription issued on or after this date may authorize any refills. It also means that as of October 6 oral, telephone or fax-transmitted prescriptions for HCPs are no longer possible. 

Question 3:  Can the remaining refills for HCP prescriptions written and filled before October 6 as a Schedule III, be dispensed after October 6?   

Answer 4:  Yes. The DEA has stated that it will allow refills on HCPs written and initially filled before October 6 (under Schedule III requirements and limitations), to be dispensed up to six months from October 6, 2014 (until April 8, 2015). This extends the Schedule III treatment of prescriptions for HCPs written and initially dispensed prior to October 6, 2014 to the maximum allowable period for Schedule III refills. Of course, the original date on the prescription cannot exceed 180 days, or the maximum allowable period for Schedule III refills. 

If there are any questions for prescribing physicians or dispensing pharmacists, err on the safe side and seek consultation so that you comply with the federal laws and regulations. Patients may be frustrated by the change in the law but do not let them pressure you into prescribing or dispensing unless you are fully compliant. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law 

Investigations Continue Post-Arrest As Shown By Physician Arrested For Second Time While Charges Pending. Lesson: What Not To Do While On Bail

One of the terms and conditions of bail is "to obey all laws." Committing an offense while on bail is a separate offense and can result in loss of bail. We have had cases where a client committed a new offense while out on bail and it can complicate greatly the defense of a case.

Last week, Yahya Hedvat, a Los Angeles doctor awaiting trial for allegedly prescribing and selling narcotics without a legitimate reason, was arrested for selling hydrocodone to undercover agents. He was arraigned in Los Angeles County Superior Court and pleaded not guilty on August 19, 2014 to the charge in the second case of sale of a controlled substance. His bail was set at $1 million bail. It is also likely that a motion was filed to revoke or increase bail in his first case.

According to City News, Dr. Hedvat was scheduled to go on trial this month on a 10-count indictment accusing him of unlawfully prescribing the drugs hydrocodone, clonazepam and suboxone. Dr. Hedvat was free on his own recognizance while awaiting trial and had surrendered his federal license to prescribe controlled substances, according to the District Attorney's Office. 

On August 8, an undercover investigator with the California Medical Board went to Dr. Hedvat's clinic and allegedly negotiated the purchase of narcotics, including Norco and Ativan. Undercover agents allegedly bought the drugs in the clinic's parking lot from Dr. Hedvat's office assistant, Nikravan Hormuz, 70, who was also charged.

Mr. Hormuz pleaded not guilty to the sale of a controlled substance count and posted bail early Saturday. Dr. Hedvat's bail was more complicated and he was not able to post bail at the first appearance.  

Attorney Commentary: It is quite likely that the investigation was continued in order to obtain more evidence on the first case or to create another case -- which is what has occurred here.  Without a DEA registration, the charge is more serious and enhances the punishment that the doctor faces in his case.

Penal Code Section 23 Order Pending Criminal Case
The new case greatly impacted the criminal case in another way in that it prompted the Medical Board to seek an interim suspension order against him under the authority of Penal Code Section 23.  On August 22, 2014, the Judge in issued a PC23 Order that restricted Dr. Hedvat from practicing pending the criminal case.  Under the Order, as a condition of bail or own recognizance (O.R.) release during the pendency of this criminal action until its final conclusion and sentence, Dr. Hedvat shall:

1.    Forthwith cease and desist from practicing as a physician and surgeon;

2.    Be restricted from prescribing, ordering, administering, furnishing, or dispensing any drugs;

3.    Surrender to the clerk of the Court, any prescription forms in his possession;

4.    Be prohibited from obtaining, ordering, or using any additional prescription forms; and inform his patients that he is not currently permitted to prescribe any drugs due to a pending matter. 

The Penal Code Section 23 orders can range from restrictions on practicing to outright prohibition on practicing while the criminal case is pending. This was a complete prohibition and will cause the physician additional economic and professional consequences while the criminal cases are resolved.  

When we have a client charged, it is critical to ensure that they (and their office staff) are not engaged in any acts that could be used to revoke bail or create new charges. While it may be difficult for clients to accept the fact that they will need to give up certain activities that may be legal (prescribing any controlled substances for example where there is a valid DEA registration), even that may be preferable to having to defend one's clinical judgment.  In this case, it was allegedly more serious without the DEA registration and with an office person who was allegedly engaged in activities that could never be legal.  

The lesson: if you are under investigation or charged, be paranoid.  Be careful. Do not assume that an investigation is "over" and that law enforcement or the Medical Board does not continue to send in invetigators.

We have seen cases where the Medical Board has sent undercover investigators to a clinic on the date the physician or other medical staff are scheduled to be in court to see what happens at the clinic without the physician.  In other words: take these investigations seriously.  

Moreover, you can use the time to create good facts and that your office has been cleaned up, is compliant with all laws and regulations. This can help in the defense of the case as well as in any further administrative proceedings. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Phone: 213-233-2260

Email: tgreen@greenassoc.com

California Board of Pharmacy Obtains Interim Suspension Order Against Pharmacy and Pharmacist Due To Counterfeit Drugs and Violations of Pharmacy Law

Over the past seven years, there has been increased investigations on illegal drug diversion at pharmacies and the sale of counterfeit prescription medications at pharmacies. There have been companies and individuals which have been accused of buying back prescription medications from patients and selling them to distributors who create false records of authenticity or selling them to pharmacies at a reduced price.  

In a recent California Pharmacy Board case, the Board sought and obtained an Interim Suspension Order against a pharmacy, Adams Square Pharmacy in Glendale, California, arising from the pharmacy returning counterfeit Cialis to Eli Lilly through a pharmaceutical reverse distributor. This was pursuant to Business and Profession Code Section 494(a)(2) on the grounds that the pharmacy posed a danger to the public health, safety and welfare. the judge also found that the return of the counterfeit Cialis was dishonesty, fraud or deceit. Here is a copy of the decision on the interim order.  The order shut down the pharmacy. The order also precludes the pharmacist owner Margarita Kazarian from working as a pharmacist in charge.  The Los Angeles Times also reported on this matter.  The Pharmacy Board has indicated that it will file an Accusation against Ms. Kazarian by July 1, 2014.

The primary ground for the suspension was that the pharmacy had counterfeit Cialis tablets in its stock. This was discovered when  the Cialis returned by the pharmacy was found to be counterfeit Lilly drug product and were returned in a genuine Lilly packaging and container. The Pharmacy Board conducted an inspection on November 11, 2013 and found more counterfeit Cialis in the pharmacy and numerous other Pharmacy Board violations.

Pharmacies need to be vigilant in their ordering and be careful when ordering from distributors who are selling trade name drugs at prices below the manufacturers. There are currently federal criminal cases filed throughout the country regarding the operation of businesses dealing in counterfeit drugs or drugs that have been recycles through the system through pharmacies or patients. In the Los Angeles area, there were groups who bought prescription drugs from patients and then repackaged them with fake certificates and resold them into the stream of commerce. This is considered illegal drug diversion.

Pharmacies should check their stock, their suppliers and make sure this does not happen to them.  In addition, the pharmacies should be ready for inspections without the issues that this pharmacy faced which included failing to maintain adequate records of sales, disposition, and acquisition of medications; expired medications on the shelf; overfilled containers; etc.  This is also considered unprofessional conduct.

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

Colorado Doctor Indicted For Health Care Fraud, Distributing Controlled Substances And Other Charges Arising From Pain Management Practice

On August 26, 2013, a federal grand jury in Colorado issued an indictment last week for doctor Joel E. Miller in Craig, Colorado that accused him of prescribing controlled substances in quantities and dosages that resulted in abuse, misuse, addiction and death. A copy of the Indictment can be found here. There are 35 counts against him including health care fraud for billing to Medicare and Medicaid, distributing controlled substances, money laundering and forfeiture. 

This is a continued trend in physicians being charged as if they are drug traffickers. Any physician who prescribes scheduled narcotics needs to make sure that their practice is reviewed for all compliance and ensure that the evolving standard of care is being met. Even one patient in today’s world can result in charges since under the law, only if there is medical necessity and legitimate medical need (as established by the standard of care along with the record keeping required). 

Practicing physicians can learn from the allegations in the Indictment and think about them in the context of their everyday pain management practices. The Indictment alleges that Dr. Miller engaged in the following scheme which supports the charges filed against him :

(1) prescribed quantities and combinations of controlled substances to patients but failed to adequately medically address the misuse and abuse of the prescribed controlled substances of the patients; 

(2) prescribed controlled substances to patients knowing that his patients were addicted to the controlled substances, were misusing the controlled substances, or "doctor-shopping," and were requesting additional quantities of controlled substances to support the patients' drug habits;

(3)  prescribed controlled substances in quantities and dosages that would cause patients to abuse, misuse, and become addicted to the controlled substances;

(4) required patients to pay for follow-up visits to obtain additional prescriptions for controlled substances; 

(5) prescribed controlled substances to patients knowing that his prescribing endangered his patients' lives, and if taken as directed, his prescriptions would be expected to result in accidental overdoses;

(6) prescribed controlled substances to patients without determining a sufficient medical necessity for the prescription of controlled substances;

(7) prescribed controlled substances to patients in a manner which was inconsistent with the usual course of professional practice and for other than legitimate medical purpose;

(8) prescribed pharmaceuticals to patients for whom the prescription was not intended, and directed the persons to whom he prescribed the pharmaceuticals to give the prescription to third parties; 

(9) prescribed controlled substances to patients in such strengths and quantities that his prescribing became a contributing factor in the patients' overdose deaths; and

(10) pre-signed prescriptions and allowed office employees to distribute controlled substance prescriptions to patients in his absence and without a doctor's examination of the patient.

What can prescribing physicians learn from this Indictment even when they are doing their best to run a practice that is compliant? It is critical to address patients' abuse of prescribed substances, any addiction issues, potential diversion or misuse, and office procedures. The standard of care goes beyond the practice of medicine and it is critical that there is documentation and procedures in place that help follow up on any "red flags" or patients who are addicted, abusing or who have grown opiant tolerant or have dosages that pose risks to the patients. Make sure your practice is the type that an expert could review and indicate that you are following the standard of care with respect to these issues. Prevention in these cases is the best medicine. 

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

California Doctor Arrested For Writing Prescriptions Without A Medical Purpose - Charges Filed in Ventura County

On July 8, 2013, after a two month undercover investigation, a physician Kiansi Boni in Camarillo, California was charged with two felony counts of violating Health and Safety Code Section 11152(a) and 11153(a) of issuing prescriptions for controlled substances (Vicodin, Suboxone, methadone, Xanax and codeine) without a legitimate medical purpose.

Section 11153(a) provides in relevant part that "A prescription for a controlled substances shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice."  Dr. Boni is alleged to have had cash patients in the practice where the patients paid for a physical exam that did not meet the standard of care before being issued prescriptions.

An additional felony count of violating Business and Profession Code Section 2052 was charged because the physician's license had been suspended during a period of time due to failure to pay child support.
Bail was set at $50,000.

This investigation began after a number of the patients were arrested for selling the opiate medications prescribed by the doctor. A coordinated investigation by Ventura County's Pharmaceutical Crimes Unit, the Medical Board and other agencies began. According to the discovery provided by the government, the doctor did not physically examine the patients to determine whether there was a legitimate medical necessity for the prescriptions.

The physician is lucky that this is a state case and that the federal drug laws are not being used to charge him with distributing controlled substances which carry much higher penalties and potential sentences. Nevertheless, these are serious charges which the Medical Board is taking very seriously and is demanding revocation of licenses where these allegations are made even where there are not criminal cases.

Posted by Tracy Green, Esq.
Email: tgreen@greenassoc.com
Green and Associates - Los Angeles, California
Office: 213-233-2260

Chicago Physician Facing Federal Charges For Illegally Prescribing Hydrocodone To A Hospital Patient Using Another Physician's DEA Number

A Chicago physician Dr. Kenneth S. Nave associated with Sacred Heart Hospital on the city’s west side was arrested on April 17, 2013 and is facing federal charges for allegedly illegally prescribing hydrocodone to a hospital patient without having a valid license and registration to prescribe controlled substances.  Dr. Nave allegedly illegally used the Drug Enforcement Administration registration number of another physician when he prescribed the hydrocodone last December. There is no allegation that the prescription was not medically necessary.

The public is reminded that a complaint is not evidence of guilt.  The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

According to the federal complaint against Dr. Nave, the investigation has revealed that between at least November 2012 and February 25, 2013, he issued approximately 101 prescriptions for controlled substances to approximately 33 patients at Sacred Heart  using the DEA registration issued to another physician. It is specifically alleged that on December 7, 2012, Dr. Nave allegedly prescribed a particular patient 90 pills containing hydrocodone, a narcotic controlled substance, using this other physician registration number.

The illegal prescription count carries a maximum penalty of four years in prison and a $250,000 fine.  If convicted, the Court must impose a reasonable sentence under federal statutes and the advisory United States Sentencing Guidelines.  

Dr. Nave’s licensing status appears to have been a role in this case according to the affidavit. Dr. Nave’s Illinois license to practice medicine was suspended between 2002 and 2008.  It was restored to probationary status on Dec. 20, 2012, but his state license to prescribe controlled substances was not restored until February 26, 2013, according to the complaint affidavit.  Separately, Nave was not registered with the DEA to prescribe controlled substances but an application for DEA registration that was submitted on March 6, 2013 is pending, the affidavit adds.

On April 18, 2013, the Illinois Department of Financial and Professional Regulation issued an order suspending Nave’s license to practice medicine.

This case is related to an investigation of Sacred Heart Hospital overall.  On April 16, 2013, the owner and chief executive officer of Sacred Heart was arrested, along with the hospital’s chief financial officer and four physicians affiliated with the hospital on federal charges alleging a conspiracy to pay and receive kickbacks in exchange for referral of Medicare and Medicaid patients to the hospital.  Federal agents also executed search and seizure warrants as part of an ongoing investigation of Medicare fraud allegations involving medically unnecessary emergency room admissions and in-patient tracheotomy procedures.

Any questions or comments  should be directed to Tracy Green, a very experienced physican attorney, white collar criminal defense attorney and DEA 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 criminal matters in California and throughout the country. You can contact Ms. Green at 213-233-2260

Tracy Green Quoted On Physician Accused Of Second Degree Murder And Excessive Prescribing Due To Accidental Overdoses by Patients

Tracy Green was quoted in the Los Angeles Times regarding her newest former physician client who pleaded not guilty to all counts (including second degree murder and excessive prescribing) on Friday, September 27 before Judge Schnegg. The article entitled "RowlandHeights Physician Charged With Murder Pleads Not Guilty" states as follows:

"Tracy Green, a Los Angeles attorney who recently began representing Tseng, said she is "extremely confident" her client will be acquitted."

"This isn't a murder case," Green said. "In America, we believe in personal responsibility.... When [Tseng] prescribed these medications to the three patients at issue, they … had their own agenda, which was to seek drugs."

For more information, feel free to contact Tracy Green at tgreen@greenassoc.com or at her office at 213-233-2260. The firm's website also has additional information about her and her firm. 

Los Angeles Times Reports On Lawyers Who Defend Doctors - Attorney Tracy Green Quoted

(Liz O. Baylen / Los Angeles Times)

Attorney Tracy Green was interviewed by the Los Angeles Times for an article regarding a case against a former physician Lisa Tseng presently pending in Los Angeles County Superior Court. This article is entitled "Prosecution of Doctor in Overdose Cases Worries Physicians."

Ms. Tseng who surrendered her license last year has been charged with manslaughter for allegedly prescribing painkillers with little or no medical examination to three patients who later overdosed. For the record, Ms. Green does not and has not represented Ms. Tseng and would never comment on a current or former client.

Given the emphasis on the rise of prescription drug abuse and addiction in the United States, physicians who prescribe narcotics for pain management are caught in the cross-hairs of this "war" against prescription drug addiction. Any physician who prescribes pain medication -- even on occasion -- should keep up on this issue and ensure that their medical record keeping and protocols meet the standard of care.

Ms. Green just finished a Medical Board trial this week on a physician who prescribed pain medication to an undercover DEA agent and was facing an Accusation due to the deficiencies in his physical examination and record keeping. It is our belief that the DEA is reviewing CURES reports on physicians and checking to see if any patients in their 20s and 30s are receiving scheduled pain medication and other narcotics and are referring cases to the Medical Board for record review.

For more information, contact:
Green and Associates, Attorneys at Law
213-233-2260
Email: tgreen@greenassoc.com
Website: www.greenassoc.com

Indiana Doctor Pleads Guilty To Excessive Prescribing - Is Your Practice Complying With State And Federal Laws And Guidelines?

On June 22, 2012, an Indiana doctor Ray Howell plead guilty to charges that he excessively prescribed narcotics and his plea agreement included surrendering his medical license. Indiana officials claimed that Dr. Howell issued over 11,000 prescriptions in a year. Howell plead guilty to 5 felonies including unlawful distribution of oxycodone. The DEA and state law enforcement are concerned that in some parts of the country prescription drug abuse has overshadowed methamphetamine and other unlawful drugs.

Howell's case is a reminder to physicians of what can go wrong in pain management. For those physicians who dispense pain medications as part of their practice it is important to learn from such cases without being fearful of prescribing narcotics. There is a legal way to prescribe controlled substances for intractable pain.

The law in California is that "No physician and surgeon shall be subject to disciplinary action by the board for prescribing or administering controlled substances in the course of treatment of a person for intractable pain."  Cal. Bus. Prof. Code Section 2241.5(c). How do you as a physician ensure that you fall within this law?

The first place to start is to review the California Medical Board's Guidelines for Prescribing Controlled Substances for Pain. This is a summary of the standard of care for managing pain patients. It has detailed advice that you are expected to know before you prescribe narcotics for pain management.

Second, review and comply with the DEA's Practitioner Manual to ensure you are complying with federal rules and regulations. It is usually the DEA who sends in undercover patients and initiates investigations when the CURES reports show a large number of prescriptions from a physician. There are more cases of state and local law enforcement getting involved in undercover operations as well but the DEA is in the forefront.

Third, seek legal and expert advice to make sure that your practice is compliant with existing laws, regulations and medical standard of care. If you did not comply with the existing rules in the past, it is not too late to change your practices and become compliant.

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 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/