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

Mandatory Victim Restitution Act - Is Your Spouse Liable For Restitution Judgments?

The case of United States v. Berger, No. 08-50415 (9th Cir., Jul. 31, 2009), reminds us of the misfortune an innocent spouse might incur due to the criminal conduct of his or her spouse.  In that case, the Ninth Circuit Court of Appeals determined that the community property, including that portion which otherwise would be awarded upon dissolution of marriage to an innocent spouse, may utilized under the Mandatory Victim Restitution Act (MVRA) (18 U.S.C. § 3663(a)) to satisfy a restitution judgment obtained against a criminally liable spouse. This was even the case where the proceeds of the fraud were not used to purchase the property that was owned by an innocent spouse.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, while Richard Berger (Richard) and Cornella Berger (Cornella) were married, Richard joined a partnership (Partnership) which he and others formed for the purpose of purchasing a 290-unit apartment complex (Property). 

During the relevant period, Richard served as President and CEO of Craig Electronics (Craig), an electronics wholesaler. A federal grand jury returned an indictment, charging Richard with 36 counts of conspiracy, loan fraud, falsifying corporate books, and other securities fraud violations committed at Craig. After a jury trial, Richard was found guilty on 12 of those counts. Cornella was not involved in any wrongdoing associated with the illegal scheme.  No proceeds from the fraud scheme were invested in the Property.

As part of his sentence, Richard was ordered, pursuant to the MVRA, to pay restitution of just over $3.14 million to the victims of his fraud.  Thereafter, Richard consented to the Partnership’s entering into a contract to sell the Property. The district court ordered that Richard’s approximately $1.5 million share of the proceeds from the sale of the Property (the Proceeds) be deposited with the court.

The government filed an application to disburse the Proceeds to the victims of Richard’s fraud who were entitled to receive restitution. Cornella opposed the application, arguing that she was entitled to one-half of the Proceeds as her community property share.

Over Cornella’s objection, the district court granted the government’s application to disburse the entire sum of the Proceeds to the victims. Cornella appealed.  Cornella claims that the district court erred by failing to award her a one-half interest in the Proceeds.

LEGAL ANALYSIS

Cornella argued that the asset distribution should have been analyzed under case law governing criminal forfeiture, citing United States v. Lester, 85 F.3d 1409 (9th Cir. 1996) (holding that wife’s one-half interest in portion of community property was not liable to criminal forfeiture imposed on her husband).  The appellate court noted that restitution and forfeiture are distinct asset collection regimes, governed by different rules. Whereas criminal forfeiture is a judgment against a person convicted of a crime (id., at 1413), a restitution order under the MVRA is “a lien in favor of the United States on all property and rights to property of the person fined.” 18 U.S.C. § 3613(c) (emphasis added).  Thus, the Ninth Circuit analyzed the allocation of restitution funds using the law governing MVRA restitution.

Under the MVRA, the government may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.  18 U.S.C. § 3613(a).  Thus, the appellate court looked to California law to determine Richard's property rights in the Proceeds.

Cornella and the government agreed that the Proceeds were community property. In the ordinary case, “the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.” Cal. Fam. Code § 910(a).  Thus, even though Richard was the only spouse who was a party to the restitution judgment, under the MVRA and California law the Proceeds’ community property status made Cornella liable for that debt, even though she was entirely innocent with respect to Richard's misdeeds.

PLANNING AHEAD

In handling a white collar criminal case, it is critical to look at restitution early on. This can affect strategy in the case and planning for future assets and family law issues. The restitution amounts in some criminal cases can influence family decisions, financial planning, and so on.  Moreover, payment of restitution early in the case can make a huge difference in the sentence. This legal issue is just one factor

Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. The firm focuses its practice on the representation of professionals and businesses in civil, business, administrative and criminal proceedings. Their website is: http://www.greenassoc.com/

800 West 6th Street, Suite 450
Los Angeles, California 90017
213-233-2260

How Can I Learn How To Bill Medi-Cal Properly And Get My Billing Staff Trained?

For Medi-Cal providers, one of the most important things is for your biller, billing staff and office manager to understand the program, the rules and the upcoming changes. 

If you are a Medi-Cal provider, even one that only does occasional billing to the program, it is important to have your staff and biller as well. As a provider, you will be held responsible for what they do in billing.  So, what can you do that is cost effective?

First, even if your biller (third party or in-house) tells you what experts they are - remember that the rules and the way they apply them change constantly.  Anyone who says they know it all is to be regarded with caution. Change is the name of the game in healthcare billing.

Second, have your staff and even you sign up for the Medi-Cal Learning Portal. Anyone can sign up (even students or lawyers like me) and have access to recorded webinars, eLearning tutorials, quick links to provider manuals, information on upcoming seminars, contact information for regional representatives, and so on. You can even ask for a custom workshop through Medi-Cal. 

Third, have your billing staff attend Medi-Cal training seminars. For example, next month, on April 16 and 17, 2013, the Department of Health Care Services (DHCS) and Xerox State Healthcare, LLC [the DHCS fiscal intermediary] will conduct Medi-Cal training seminars.  This is also available for sign-up on the Medi-Cal Learning Portal linked above. On April 16, the training will for Allied Health, Long Term Care and CCS/GHPP providers only.  On April 17, the training will be for Medical, Inpatient/Outpatient, HAP, and  CCS/GHPP providers.

In order to be compliant and not have audits or accusations of fraudulent billing, keep records of the training and be vigilant about having your staff and outside billers staying on top of these issues. All too often, people are relying on old rules and the way things used to be and are not staying on top of or ahead of the issues.


  

Jury Convicts Orange County Doctor Of Health Care Fraud In Federal Court

In the Central District of California, on March 6, 2013, a federal jury convicted an Orange County doctor Dr. Augustus Ohemeng, 62, of six counts health care fraud following a five-day trial. (CR No. 12-00415-CAS)

The conduct alleged to have taken place occurred from February 2005 to September 2009. The Indictment was not filed until May 2012. It has obviously taken years to get these cases charged and taken to trial. 

The codefendants in this case, which included another physician George Tarryk, all plead guilty. This case, like many others, involved marketers paying patients for visits and allegedly unnecessary wheelchairs and nutritional supplements being ordered for the patients. Judge Snyder allowed Dr. Ohemeng to remain on bond pending sentencing. 

Tracy Green Interviewed On Plea Bargain Agreements In Criminal Justice System By Santa Monica Daily Press

Tracy Green was interviewed in the Santa Monica Daily Press  as part of their story entitled "Family fights plea bargain in deadly hit-and-run" regarding the role of plea bargains in the criminal justice system. The fact is that approximately 95% of all cases plea before trial.  While most clients come to our office looking to prevent or defend a case, it is important to understand the role of plea negotiations in the criminal justice system -- both federal and state.

The article touched briefly on some of Ms. Green's beliefs and strategy as it relates to negotiating and/or considering a plea bargain for her clients, as part of case strategy.  The article did not quote Ms. Green's statement to the reporter that she "believes the system is broken" and that pleas are used to process the huge numbers of cases that are filed each year. Often pleas are offered in weak state cases that offer a "guaranteed" result and help avoid the risk and expense of trial.

Scott Burns, the executive director with the National District Attorneys Association, explained it well in the article: “The reality is that there are between 15 and 20 million non-misdemeanor cases prosecuted in America every year.” Mr. Burns added: “If each of those, or frankly half or a third of those, went to trial, we would need a much, much larger criminal justice system.” Instead, attorneys forge plea bargains, agreements that offer a potentially lighter sentence in exchange for a guilty or no-contest plea.

The article also stated: "They also offer security, said Tracy Green, a private defense attorney based in Los Angeles.  Whereas plea deals are negotiated between the attorneys involved, jury trials rely on a body of 12 unknowns, making the process a roll of the dice for both sides." I hate to tell people it's like going to Las Vegas, but justice can come at a price," Green said." 

"Defense attorneys also look at the merits of the case, but also determine if it’s a financial possibility for their client to go through the expensive trial process and if they’re capable of serving time, even a reduced amount, Green said."

“What are the client’s goals? Can they risk, handle or afford emotionally or lifestyle-wise any threat of incarceration, or having a conviction of what’s been charged?” she asked. “What’s the downside risk if you go to trial and lose?”

While neither attorney believes that the system is broken, Burns was more apt to defend it than Green, who felt that defendants risk getting a harsher sentence if they go for a trial and lose." It is now considered "below the standard of care" for an attorney not to explain the benefits of early plea negotiations to targets of investigations and persons charged with a crime -- especially in the federal system. Thus, any experienced criminal defense attorney should explore these issues and explain the system to their client without fear of looking "weak" or that they are "not a fighter." These are complex issues and each person's case and situation may be different. 

Some clients are concerned that discussing plea bargains is a sign of weakness but it is a tool to be used. For example, if we have a professional client who is charged with a felony it is important to address all potential strategies including going to trial, the risks if the trial is not successful and whether a certain result (such as a misdemeanor plea by a corporation) may make sense given the facts and risks. Each person or business entity have different goals and different ability to absorb risks. 

To be conscious of the role of plea negotiations is important. It is unfortunate that there are many people who plea because it is in their best personal and business interest rather than risk going to trial, but if it is to be done it should be explored in detail, addressed throughout the process and not simply done at the last minute when there is fear of going to trial. This requires an assessment of the facts, legal exposure and personal issues faced by the client.

Posted by Tracy Green, Esq. 
To speak with Ms. Green, you can email her at tgreen@greenassoc.com or call for an appointment at 213-233-2260.

Practical Tips For Those Who Face Federal Custody Time, Part II: How To Minimize Problems In Custody And Stay Under The Radar

Most of our clients are college educated, are businessmen or professionals, have never been charged with a crime before and have never been incarcerated. For those individuals who are facing federal prison time -- even if it appears they should be eligible for probation -- one of the biggest fears is how they would cope with being in federal prison or camp and mingle with the general population on a daily basis. We have interviewed several of our white collar clients who have spent time in federal custody on tips for how they were able to successfully serve their time if the federal judge decides to impose a custody sentence.

In addition, we have received requests for representation after they have been sentenced when they were surprised by a 6-month or 1 year custody time because the federal judge did not accept the prosecutor’s recommended sentence set forth in the plea agreement. The fear that some clients have is best addressed in advance and for everyone to work for the best possible result and prepare for the worst.

For some clients who are facing a 10-year sentence and where the evidence is overwhelming, there are cases where an early plea disposition is the best result possible.  Sentencing in the federal system is similar to a small trial and is an art. We have other clients where a plea is not a possibility and trials are necessary. However, in either case, there is a risk of incarceration if the case is not a reject or the case is not dismissed before trial. As of March 23, 2013, there are 217,929 incarcerated in federal prison according to the Bureau of Prisons. In California alone, there are 163,000 in state prisons.

For those who need some guidance on what to expect for federal custody, we offer our clients guidance. Of course, the best result is for a rejected case, a win at trial or motion phase or a probationary sentence. If there is the possibility of federal prison time, preparation helps. Especially since our clients who have had almost no exposure to the criminal justice system cannot believe how the prison industrial complex has become a major industry in the United States and how there are routine deprivations of rights and privileges. This is even more common in the county and state facilities.  Almost every client we have had feels they need to write a book or make a movie on the criminal justice system. However, when the politicians and public think that we need to be “tough on crime,” these are not easy issues to raise with the public during an election.

Let us hope that you or your family member’s case will not result in incarceration. However, if it occurs – whether while awaiting trial or post-trial or plea agreement – there are unwritten rules to be considered. For example, one of our physician clients was in custody pending trial and had two bail motions denied when we were retained. The client filed numerous complaints with the Los Angeles County Sheriff’s Office about treatment, moldy food, violation of regulations and policies, and unfair treatment. Our client was correct on all these issues, however, the complaints resulted in something called “diesel therapy” and other administrative sanctions. Somehow, the client was taken to the wrong facility for a court appearance and made to wait in a freezing room all day in handcuffs. Even a court order was not followed on the transport. The judges only have so much jurisdiction over the federal Bureau of Prisons or the County Jails or the Department of Corrections. We were able to obtain results by going to the legal department, obtaining court orders, negotiating with staff ourselves and persuading our client that making complaints will be detrimental unless it is done properly.

The staff at facilities believe that this is their house and you are a guest following their rules. Even if it is taxpayer supported, they do not want complaints about the food, the soap, the facilities, and so on. This does not mean that we agree with the prison administrators but we want those in custody to know that viewpoint so they do not cause themselves additional aggravation. 

For educated persons who are not experienced in the jails and prisons, how are they to navigate this new territory? This is a different planet. Often it is not so dangerous and interminably boring and isolating. There is a risk of becoming institutionalized and depressed. There is also a race based culture (especially in state prisons) that needs to be navigated. If you or your family member is educated, that can be a great benefit to the other inmates who are not well-educated. Finally, there are new terms to learn.