"ABUSE OF LOYALTY": Free Press Intervu with White Collar Crime Expert Tr...

Tracy Green, White Collar Expert Interview, on Special Counsel Investigation, Michael Cohen, FEC Issues, Etc. With Free Press Journalist Heidi Cuda

Dateline: Los Angeles, August 23, 2018. Independent investigative reporter and Free Press activist Heidi Cuda interviewed me to break down the prosecution tactics of Special Counsel Robert Mueller and his team. 

This is a "low-tech" interview that we set up impromptu via Skype...so hopefully the lags and tech issues don't bother you too much and you can listen to it like a podcast.

Here's a link to the interview which is posted on YouTube and entitled: "ABUSE OF LOYALTY": Free Press Intervu with White Collar Crime Expert Tracy Green"

I did my best, in a "just the facts, m'am" approach without being partisan to explain how the prosecution thinks and why these cases are so challenging. Regardless of political issues, I'm a believer in due process and I hoped to shed light on why Mueller as Special Counsel has proceeded in this manner so far and what we can expect as citizens watching from the armchair.

By the way, to read Emmy award-winning investigative producer Heidi Cuda's Free Press writings on the Trump-Russia investigation and media accountability, go to: https://maewestside.tumblr.com  

In my view, Heidi's style is unique and reflects her prior life as a music reporter for the Los Angeles Times and her punk rock approach to journalism. This was not her asking me for 5 two-sentence sound bites like I've had in mainstream interviews. She purposefully doesn't give questions beforehand or "practice" and wants it "real." So you'll see us having a conversation (with the informality that happens in normal conversations) from my home office to her home office. It's also different because we are not limited to 3 minutes of air time and luckily, I do not have to shout over other people on a panel. 

Among the highlights from the 40-minute interview: "PAPER DOESN'T LIE": "Particularly in a high profile case, the prosecution can't risk making any mistakes. They need evidence and documents that no one can challenge in court. Whatever case they file, they want to make sure it's gonna be bulletproof." "TRUMP" TACTICS: "Trump doesn't use email. He doesn't even like to use the mail. He likes to have things personally delivered. And he likes to have other people handle the communications. He doesn't appear to be texting. He delegates so it insulates him. When you come to try to make a white collar case...it makes it difficult because he's not leaving a paper trail."

St. Louis County Doctor Pleads Guilty to Obstructing FBI Investigation When He Responded to Subpoena Requesting Medical Records

One way for the government to build a case against someone is by issuing a subpoena for records and seeing whether the business or person responding produces record that are false or misleading. This allows the government to not have to prove fraud or other criminal acts.

On July 13, 2018, Dr. Vidal Sheen of St. Louis County, Missouri pled guilty to obstructing an investigation by the Federal Bureau of Investigation (“FBI”) regarding whether he billed the Medicare program and private insurers for “face to face” office visits performed on dates when he was actually traveling outside of Missouri, and sometimes traveling outside of the United States.

According to his plea agreement, Dr. Sheen operated a medical office in St. Louis County, Missouri.  At the medical office, Dr. Sheen created medical records using a template that  recited patients’ symptoms and histories, and sometimes recorded vital signs (e.g. pulse rates) that did not change between patients’ visits. 

Moreover, from time to time, Dr. Sheen traveled to various destinations, including the Dominican Republic and Florida.  For the times when Dr. Sheen was out of town, the government alleged he created office notes with false entries reflecting that he had seen patients in his office, using his electronic signature.  Dr. Sheen's medical records did not discuss the role of the other employees in his office during the out-of-town visits, or his absence from the office on the dates of service. 

The United States served Dr. Sheen’s office with a subpoena requesting medical records regarding his office visits in late 2016.  In response to the subpoena, on December 1, 2016, Dr. Sheen produced medical records to the FBI in which he had made entries about face-to-face office visits when he was out of town.

California Medical Board Can Subpoena Medical Records From Physicians Even If Patients Object to Production

A recent opinion by the Court of Appeals is an administrative subpoena case that gives additional guidance to doctors and other professionals who have their records subpoened even when the patients or clients object to the production of records. The case is David Fett, MD v. Medical Board of California, No. B262469.

We often see cases where the Medical Board approaches patients and asks them to sign consent forms for records release while telling them at the same time that if they refuse to sign, they will simply subpoena the records. We have also had cases where the "patients" were undercover officers and the records release was simply a way to build a case against the physician.

Our experience has been that the Superior Courts will enforce the subpoenas even against the objection of the patient or where there is a criminal investigation.  This Court of Appeal case confirms that at this time, the courts will not allow patients to prevent the production of their personal medical records where the Medical Board can show good cause.

President Of Ambulance Company Pleads Guilty To Perjury In Connection With Responding to Civil Investigative Demand for Documents in Health Care Claims Investigation

Health care fraud cases are more frequently being prosecuted as perjury cases. Fabricating documents or signing responses to subpoenas or requests for documents has been easier to prove than the alleged fraud. 

I have urged clients for years not to alter or add to records for this exact reason. In addition, changing the records can be used to show proof of fraudulent intent. When records are incomplete or missing, there are ways to address the issues.

In a recent case, the president of a nonemergency ambulance transportation company pleaded guilty to Perjury in North Carolina for producing records under oath that the records she produced were responsive to a Civil Investigative Demand (CID). In fact, some of the records were fabricated.

On November 5, 2015, Jamime Leonard Smith, the president of CCMT, Inc., doing business as Crystal Coast Medical CCMT, Inc., doing business as Crystal Coast Medical Transport (CCMT) pleaded guilty to a felony count in federal court.  CCMT was a nonemergency ambulance transportation company.

In 2012, CCMT and its president Smith became the subject of investigation after a member of the public videotaped CCMT employees routinely transporting patients in CCMT ambulances when the patients had the ability to walk or ride in wheelchairs.  

Medicare and TRICARE generally do not cover nonemergency ambulance transportation services when the patient has the ability to walk or ride in a wheelchair.  Additionally, for reimbursement to be covered by Medicare and TRICARE, the ambulance company must obtain an order, known as a Physician’s Certification Statement (PCS), from the patient’s physician indicating that the ambulance trip is medically required. 

Did Your Office Receive OIG Or Grand Jury Subpoena For Records? Case Example Of Why You Should Not Destroy Records Unless You Want Obstruction Of Justice Charge.

I receive many calls from businesses and individuals where the government - federal, state, or administrative boards - or insurance companies are requesting records.  Some records are requested for an audit.  Other records are requested by a subpoena or grand jury subpoena. 

One of the keys in responding is not to panic. Obtain sage advice and proceed intelligently so you do not make matters worse. Even if there are some issues with the records, it may be a damage control case and you may not be objective or thinking clearly when receiving this request for records. 

One of the first things I tell clients is NOT to destroy records. Why? Destroying records does a number of things. First, it helps show intent to defraud. Second, it also provides a basis for an obstruction of justice charge. So even if the government decides not to charge health care fraud, it can charge obstruction of justice. Third, it also means you will not be able to use those records in your defense at any time and you do not know where the investigation is going at an early stage.  

A recent case shows what can happen when records are destroyed. On June 11, 2014, a New Jersey chiropractor, Mary Jean Negri, DC, RN, admitted destroying patient appointment records sought by federal agents investigating potential billing fraud at her medical office. Dr. Degri DC pleaded guilty in federal court to an information charging her with one count of obstructing an investigation of a health care offense. Dr. Negri DC had been practicing for 24 years and now this will cause her to lose her license and have a federal criminal conviction. 

According to documents filed in this case and her own statements made in court, Dr. Degri DC discovered in May 2012 that the FBI and the U.S. Attorney’s Office were investigating her chiropractic corporation for potentially fraudulent billing practices. Dr. Negri DC  suspected that investigators were interested in obtaining the clinic's patient appointment books as evidence of potential fraud. In an effort to obstruct the government’s investigation, she discarded those patient appointment books.

Dr. Negri DC's sentencing is scheduled for September 29, 2014. The maximum sentence on this charge is 5 years, a $250,000 fine, or twice the gain or loss caused by the offense. It is doubtful that she will receive the maximum but the sentence will depend on the judge and the facts and circumstances.  There will be significant collateral consequences to Dr. Negri DC as well such as being excluded as a Medicare provider by OIG and discipline to her license including revocation.  

Do not let your office respond to subpoenas or request for records in a manner that exposes you to greater problems. Seek advice and handle these requests in a professional manner. Even if you need to assert the 5th Amendment or are concerned about billing exposure, remember that not every case investigated is charged but it makes the government's job easier to prove fraudulent intent if there are records destroyed or "lost" in a flood or disaster.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Phone: 213-233-2260

Email: tgreen@greensasoc.com