Medical Board of California Appoints New Interim Executive Director After Retirement of Linda Whitney After 37 Years

The Medical Board of California announces the appointment of Kimberly Kirchmeyer as its new interim executive director. Ms. Kirchmeyer has been with the Medical Board since 1999, and was deputy director from 2005 to 2009. In late 2009, Ms. Kirchmeyer left the Medical Board for approximately two years and served as deputy director of Board and Bureau Relations for the Department of Consumer Affairs. She returned to the Medical Board in June 2011 in her prior position as deputy director.

Kimberly Kirchmeyer succeeds Linda Whitney, former executive director of the Medical Board, who retired this month after 37 years of state service. Ms. Kirchmeyer begins her new position immediately.

An executive recruitment and search committee is working with the Department of Consumer Affairs to find a permanent Executive Director.

Attorney Commentary Regarding Medical Board

The California Medical Board is undergoing a great deal of change and pressure in today’s political climate. Ms. Kirchmeyer will be the interim director while they search for a new Executive Director. I expect the climate with respect to the discipline of physicians and other health care professionals to become more aggressive, consumer-oriented and proactive in its investigations.

Posted by Tracy Green, Esq.

Ms. Green is an experienced California Medical Board attorney who represents physicians, nurses, pharmacists and other health care professionals in licensing, civil, administrative and criminal investigations, criminal prosecutions and board proceedings. To discuss your particular situation, call 213-233-2260 or email tgreen@greenassoc.com.  The firm website is www.greenassoc.com

Los Angeles Chiropractor Charged With Medicare Fraud, Aggravated Identity Theft And Forfeiture Allegations

Medicare fraud cases involving chiropractors are not very common. The reason for this is that Medicare severely limits coverage for chiropractic services to manual manipulation of the spine to correct a condition known as “subluxation.” The diagnosis of subluxation must be diagnosed and documented either by X-ray or a physical examination that is detailed and documented before Medicare will reimburse. Medicare does not pay for maintenance therapy or for chiropractic treatments that are for maintenance or to promote health.

In Los Angeles, a chiropractor, Danny Paveh (also known as Houshang Pavehzadeh) of the Sylmar Physician Medical Group, was charged in May 2013 with federal health care fraud (18 USC 1347), aggravated identity theft (18 USC 1028(A)(1), and forfeiture allegations. Dr. Paveh is presumed innocent and the fact that an Indictment has been filed is not evidence. This case is pending in the U.S. District Court for the Central District before Judge Manuel L. Real. Mr. Paveh was released on $100,000 bond and a trial date is not yet set.

The allegations in this case are that from 2005 to 2012 – a very long billing period – Chiropractor Paveh billed Medicare more than $1.7 million for chiropractic treatments for subluxation that were never properly performed.  The government alleges that the patients only received massages and other non-reimbursable treatments from Dr. Paveh and massage therapists who worked at his group. Essentially, the government alleges that these were “false claims” submitted to Medicare. It is also alleged that Dr. Paveh committed “aggravated identity theft” by taking the patients information and billing Medicare.

Attorney Commentary Regarding This Chiropractor Medicare Fraud Case

First, it appears that Dr. Paveh may have come to the government’s attention via an audit to be performed by OIG. According to the government, Dr. Paveh was the second-largest Medicare biller in California for chiropractic services – even though he was the only chiropractor in his group. The government also alleged that he was not in the United States when some of the  services were performed.

Second, although clients can panic when faced with an audit, the government alleges that when OIG investigators tried to conduct an audit of Pavehzadeh’s claims, he falsely reported to the Los Angeles Police Department that he had been carjacked and that patient files requested by the auditors had been stolen from his car. This could be used as a sentencing enhancement and to show false statements to government officials in conducting an audit.

Third, I often see clients who assume because they have billed certain procedures for years that it means that Medicare must not have an issue with the billing or documentation. Unfortunately, Medicare is known as “good faith” billing and it reserves the right to go back and audit and seek an overpayment in an administrative context or to seek criminal charges as was done here. Thus, years of billing does not guarantee that the government will not take action. Health care has changed over the years and Medicare has become much more aggressive in health care fraud cases.

Fourth, this case was being investigated for some years. This means that there was significant time to meet with the federal prosecutors and see if the case could be settled pre-indictment. In some cases, we are able to have the prosecutors offer a “reverse proffer” so the client and Medicare fraud attorney can see what evidence the government has so the case can be realistically assessed. 

Finally, forfeiture allegations were filed in this case which can often tie up a defendant's assets and make it more difficult to defend oneself or to support oneself pending a trial. In evaluating anyone's potential exposure, it should be assumed that forfeiture allegations will be filed in any federal health care fraud case. 

In cases like this, obtaining representation long before Indictment – and ideally at the audit stage – make the most sense so the case does not grow and if there are adverse facts, they can be handled at the earliest stage. If there is exculpatory evidence and facts that show innocence and good faith billing, then those facts can be presented as well.

Posted by Tracy Green, Esq.

Ms. Green is a very experienced health care fraud attorney who has handled hundreds of audits and investigations for Medicare, Medi-Cal and private insurance. In addition, she has defended health care professionals and companies in Medicare fraud, Medi-Cal fraud, mail fraud arising from false billing claims, aggravated identity theft and health care forfeiture claims. Feel free to contact her at 213-233-2260 or via email at tgreen@greenassoc.com to discuss your unique situation.

Bay Area Business Owner Pleads Guilty To Workers' Compensation Premium Insurance Fraud - Sentenced To 1 Year In County Jail Which Was Modified To House Arrest

California is still placing a high importance on the prosecution of employers for workers' compensation premium insurance fraud. We have seen an increase in audits, investigations, and prosecutions for cases that would have been settled civilly in prior years. 

In late February 2013, the owner of Genesis Building Services, Inc., a janitorial and pest control company in the Bay Area, was sentenced for insurance premium fraud. The owner, Teresa Reif, plead no contest to 8 counts and was sentenced to serve one year in jail, five years’ probation as well as being ordered to pay $1,651,148 to State Compensation Insurance Fund and $451,310 to Berkshire Hathaway (Redwood Fire and Casualty) in restitution to the insurers.  

Ms. Reif will not have to serve time in county jail since in April 2013, the judge agreed to modify her sentence and allow her to serve her sentence on home confinement with electronic monitoring so she could care for her three children. The prosecution objected but the judge granted the defense's request for modification in a humane and reasonable ruling.

Ms. Reif was originally arrested in April 2011 after an investigation that lasted several years. She was accused of having failed to report more than $10.5 million of her payroll over a four-year period. The company allegedly omitted more than half of the company's payments to its more than 140 employees from the monthly reports filed between March 2005 and March 2009. This was a family business and Ms. Reif ran the business with her brother. The company was originally accused of fraudulently avoiding nearly $3 million in insurance premiums but it was agreed by the time of the plea that the loss amount was $2 million.

The company was accused of omitting more than half of the company's payments to its more than 140 employees from the monthly reports Ms. Reif filed between March 2005 and March 2009. The carrier, Redwood Fire and Casualty, became suspicious after it received conflicting statements from Genesis staff regarding the actual number of employees at the company. The company had also obtained insurance from State Compensation Insurance Fund (SCIF).

Based on these conflicting reports, the insurer notified the Department of Insurance and the fraud division began an investigation. During a search of the business, a second set of fraudulent books were found.

This case was filed in San Mateo County Superior Court and handled by the District Attorney's Office with the investigation performed by the California Department of Insurance. The bail in this case was handled reasonably since she was released on her own recognizance pending trial even though the felony bail schedule is that bail is to be set at the amount of the loss. 

White Collar Criminal Defense Attorney Commentary On This Workers' Compensation Insurance Premium Fraud Prosecution

A number of lessons can be gleaned from this particular case. First, it can take years for these cases to be resolved since this case was not filed until 2011 for conduct that ended in 2009. It appears that the prosecution waited until the statute of limitation was about to run before it filed.

Second, the prosecution can go back years if they can show that the fraud was not discovered. We have seen cases go back 10 years in seeking to collect premiums. The case was prosecuted by the San Mateo County District Attorney's office.

Third, in this case it does not appear that the company was able to pay the restitution before sentencing. This is often key in plea negotiations. In a number of cases, we have had parallel civil lawsuits which we have negotiated at the same time in order to avoid jail time.

Fourth, the prosecution prefers to file against individuals and not companies. In some of our cases, we have been able to have the companies added as defendants and have the individuals dismissed where we have been able to pay restitution and work out a mutual resolution.

Fifth, what we have seen is that once the Department of Insurance gets involved with a fraud complaint, they will request payroll information from the State of California. Often employers will report the correct payroll information to government authorities but report different numbers to workers’ compensation insurance companies. In those cases, it becomes fairly simple for the prosecution to prove the fraud.

Sixth, we have seen cases that became criminal where the employer decided to be aggressive and fight the insurance carrier on the demand for payment after an audit. In some cases, it makes sense to fight the carrier but there needs to be a full evaluation of the facts and reporting and ensure that an insurance fraud report will not be a viable option for the carrier. We have seen disputes over $90,000 turn into criminal cases where they could have been settled early on.

Seventh, one important factor is where your case is being prosecuted and the judge that is assigned to your case. A sentencing analysis in this case would show exposure of 17 years for all counts and due to the large loss amounts. However, that is not the type of sentence that is usually imposed. In this case, the prosecution and court understood that the large amount of restitution, the felony convictions were significant punishments and did not insist on a lengthy jail sentence. However, we have seen that these cases are handled with an understanding of the underlying business issues facing employers in the worst recession of our lifetime (high workers' compensation premiums that could close an employer's business). 

Finally, for those businesses that are run by licensed individuals (physicians, contractors, etc.) we have had success in reaching agreements so that the business will not lose the license and livelihood. Most of the prosecuting agencies do not want to close businesses and put employees out of work. This should be part of the evaluation of the case, risks and potential resolution. 

Posted by Tracy Green, Esq.

Ms. Green is an experienced workers' compensation fraud attorney and white collar criminal defense attorney who has handled cases representing employers, providers and individuals over the last 20 years.

To discuss you or your company's particular issues, feel free to contact her at 213-233-2260 or via email at tgreen@greenassoc.com. The firm website is www.greenassoc.com

How to Clean Up Your Conviction - Expunging Calfornia State Criminal Convictions

BACKGROUND ABOUT EXPUNGEMENT 

Expungement is a method for cleaning up your state criminal record. There is no expungement for federal convictions. This procedure reopens your criminal case, dismisses the conviction, and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record. 

It is important to understand that it does not "seal" your records. Moreover, if you had a juvenile conviction, you need to file a petition to seal that conviction since it is not sealed automatically.

We represent our clients in this process but for those who want to understand it further or cannot afford representation, this guide will be helpful. If you have had a misdemeanor conviction such as a DUI, petty theft or any other minor conviction it is still necessary to go through this process to get the conviction off your record no matter how many years ago. If you had a felony case, you may also want to have it reduced to a misdemeanor first and then have it expunged. 

Since most misdemeanor and felony cases in California are eligible, this is an important process for people to follow up on after they have completed probation and do not have any open cases. It is an important part of moving ahead with one's life and can also help with job opportunities and future licensing in professions.  We often represent individuals who failed to clear up past records and assist them, but it is important to realize that this does not happen automatically when probation ends. Moreover, with wobbler offenses which can be reduced to misdemeanors upon completion of probation, that is also not automatic in most cases. It is therefore important to do this follow up work and many people put it off for years until they suddenly realize it is holding them back.  

Not all convictions can be dismissed. Expungement is limited to cases in which the defendant was sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the Penal Codes permitting expungment of criminal records expressly prohibit certain types of convictions from being dismissed. Most of these exceptions involve serious vehicle code violations (those that result in two or more points on your driving record) or sexual offenses against minors. For a detailed list of exceptions see Penal Code § 1203.4 and Penal Code § 1203.4a.

THERE ARE 3 TYPES OF EXPUNGEMENT: 

1.      The first, governed by Penal Code § 1203.4, will expunge cases in which probation was part of the sentence. 

2.      The second, under Penal Code § 1203.4a, will expunge cases in which there was no probation. 

3.      The third, under Penal Code § 17, will reduce a felony conviction to a misdemeanor. This misdemeanor can then be dismissed. Felonies meeting the criteria under Penal Code § 17 are often called "wobblers," meaning they could be charged as either a felony or misdemeanor.

If you received state prison as your sentence, you will need to file paperwork for a Certificate of Rehabilitation, rather than a Petition and Order for Dismissal.  More information is available from the California Department of Corrections and Rehabilitation at http://www.cdcr.ca.gov/BOPH/docs/apply_for_pardon.pdf

WHAT DOES AN EXPUNGEMENT NOT DO FOR YOU?

Although your conviction may be dismissed, restrictions resulting from the conviction cannot. An expungement does not: 

o   Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal.

o   Seal the court case file from public inspection. The court file remains public record.

o   Reinstate your right to possess firearms. In some cases, reduction of a non-violent felony to a misdemeanor may accomplish this. 

o   Relieve you of your duty to register as a sex offender. In some cases, this may be accomplished by a different motion to the court.

o   Allow you to omit the conviction from applications for government-issued licenses. You must disclose your conviction and expungement in your license application.

o   Allow you to omit the conviction from application for government employment.  If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate, or permit, you must disclose the conviction and expungement.

o   Allow you to hold public office, if the conviction prevented you from doing so.

o   Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 

o   Prevent the conviction from being used as a "prior." The dismissed conviction can be used for determining sentencing enhancements in subsequent convictions.

o   Prevent the conviction from being used by the DMV. Expunged convictions may be used to suspend or revoke driving privileges. 

o   Prevent the conviction from being used by US Citizenship and Immigration Services. In many situations, an expunged conviction may be considered for removal or exclusion purposes. 

County Of Los Angeles Award Given To Attorney Tracy Green

The County of Los Angeles recently gave an award to attorney Tracy Green for efforts above and beyond in a two strikes criminal case involving a young adult who was developmentally disabled and was facing revocation of felony probation with state prison time and a second criminal case where the best offer had been 7 years' state prison with a second strike. Ms. Green spent a year on the case, announced ready for trial, and was able to obtain reinstatement of probation, dismissal of the strike, and probation on the new case.

The result in the case was also due to presenting a vigorous defense and mitigation package to the Los Angeles County District Attorney's Office which was willing to work in this case and being before an excellent judge in the Los Angeles County Superior Court. It takes a great deal of work and coordination in cases involving criminal defendants who are developmentally disabled.

CALIFORNIA NURSE FACING TRIAL ON SEXUAL BATTERY ON THREE PATIENTS WHO WERE MEDICALLY INCAPACITATED

On May 10, 2013, a Riverside County Superior Court judge set a trial date for June 14  for a former male nurse, Paul Robert Simon, to stand trial on charges he sexually assaulted three patients while he worked at Rancho Springs Medical Center in Murrieta. Mr. Simon is facing six felonies in case Riverside County Superior Court Case No. SWF1300076. These allegations are not evidence and Mr. Simon is presumed innocent. 

Mr. Simon is charged with three counts each of sexual battery on a medically incapacitated person and of lewd acts by a caretaker on a dependent adult. He faces a maximum of eight years in prison if convicted as now charged.  One count was added at the preliminary hearing and alleged that a third female victim was sexually assaulted by Simon in late 2009 or early 2010. That sexual assault was reportedly witnessed by a nurse at the hospital.

The allegations are that in April 2009, a woman was admitted to Rancho Springs Medical Center and briefly was on life support. When she awoke, she had difficulty moving her body but was mentally alert. It is alleged that Simon, her assigned nurse, went to her bedside and used the woman’s hand to masturbate him. Another time, Simon allegedly touched the same victim inappropriately during a time he was bathing her. In August 2010, another woman was admitted to the hospital and was unconscious when Simon was allegedly seen by at least one other nurse reportedly inappropriately touching a woman’s  upper thigh area under her hospital gown. Simon’s employment was subsequently terminated by the hospital.

A preliminary hearing was held in this case and determine that there was enough evidence for Mr. Simon to stand trial on on all six counts. These counts are three and four years old and it will be a case that relies on eyewitness testimony. The fact that there are three patients in one case will make it more difficult to defend and the defense will have its challenges.

Posted by Tracy Green, Esq. Please email Ms. Green, a very experienced nurse attorney, license attorney, and board hearing attorney @ tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30 minute consultation.