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Suit Alleges IRS Seizes Millions of California Medical Records

Amid a firestorm about the Internal Revenue Service’s targeting conservative groups and wide concern that the tax service will be administering Obamacare, the IRS is also the subject of a California class action lawsuit alleging that 15 of its agents improperly seized 10 million Americans’ medical records from a California health care organization.

Malibu attorney Robert Barnes filed the lawsuit in California Superior Court,in mid-March on behalf of a John Doe Company and individuals whose records were seized according to a report from the Courthouse News Service.

“This is an action involving the corruption and abuse of power by several Internal Revenue Service (‘IRS’) agents (collectively referred to as ‘Defendants’ herein) during a raid of John Doe Company, in the southern district of California, on March 11, 2011,” the complaint, quoted by Courthouse News, reads. “In a case involving solely a tax matter involving a former employee of the company, these agents stole more than 60,000,000 medical records of more than 10,000,000 Americans, including at least 1,000,000 Californians.”

The complaint explains there was no warrant authorizing the seizure of the medical records and the records were not germane to the IRS search. The complaint alleges that the seizure violated the 4th Amendment, according to the extensive quotes from the complaint complied by Courthouse News.

“These medical records contained intimate and private information of more than 10,000,000 Americans, information that by its nature includes information about treatment for any kind of medical concern, including psychological counseling, gynecological counseling, sexual or drug treatment, and a wide range of medical matters covering the most intimate and private of concerns,” the complaint reads.

Republican members of the House Energy and Commerce Committee are looking into the allegations of this lawsuit. “(T)he Committee on Energy and Commerce is investigating allegations that the Internal Revenue Service (IRS), in the course of executing a search warrant at a California health care provider’s corporate headquarters in March 2011, improperly seized the personal medical records of millions of American citizens in possible violation of the Fourth Amendment to the United States Constitution,” members of the committee wrote in a letter to Acting IRS Commissioner Daniel Werfel.

DWC Announces QME Panel Request Changes

The Division of Workers’ Compensation’s Medical Unit has made changes to the Qualified Medical Evaluator (QME) panel request process as a result of Senate Bill 863. Emergency QME regulations introduce the following new requirements for QME panel requests: The QME forms for both the unrepresented and represented requests have been updated. QME Form 105a applies to the unrepresented cases and must be used for dates of injury on and after Jan. 1, 2013. Likewise,QME Form 106a applies to represented cases and must be used for dates of injury on and after Jan. 1, 2013. Both forms will be formally adopted after they are approved by the Office of Administrative Law, at which time the form numbers will be renamed to QME Form 105 and QME Form 106, respectively, with the latest revision date and will apply to all dates of injury. Agreed Medical Evaluator (AME) offer letter is no longer required prior to panel request (Labor Code § 4062.2)

Disputes from utilization review (UR) determinations that delay, modify or deny medical treatment must be resolved through the independent medical review process for dates of injury on or after Jan. 1, 2013 and for all dates of injury for which UR determinations that delay, modify or deny medical treatment are issued on or after July 1, 2013 (Labor Code §§ 4062(b), 4610.5.)

For disputes over the existence or extent of permanent impairment and limitations or the need for future medical care; or concerning any medical issues not over covered by section 4060 or 4061 and not subject to section 4610: a QME panel request must include a written objection that identifies (Regulation 30(b)):

  • The name of the primary treating physician (PTP)
  • The date of the PTP’s report that is the subject of the objection
  • A description of the medical dispute requiring a comprehensive medical legal exam is necessary

For disputes over the compensability of any injury under Labor Code section 4060: a QME panel request must include a written objection that specifies that a compensability examination is required (Regulation 30(b)).

QME panel requests for disputes contained in Labor Code § 4062.2(b) cannot be submitted until 10 days after the objection letter has been sent. That period is extended by five days if the objection was made by mail within California. Substantive objections under Labor Code §§ 4060, 4061 and 4062 may be resolved using the process under Labor Code section 4062.2.

Requests submitted that do not contain all these components will be considered incomplete and will be rejected. When resubmitting a complete represented panel request please attach a copy of the rejection letter.

More helpful tips to ensure valid panel requests will be coming soon to the DWC Medical Unit website.

Pending Legislation Targets Overprescribing Doctors

Four bills dealing with reform at the Medical Board of California and related issues passed out of the State Senate a few weeks ago. The Board that regulates doctors is facing sunset review this year, meaning it will cease to exist if lawmakers and the governor don’t reauthorize it.

An oversight hearing in Sacramento in March raised the issue of lax controls over doctors who overprescribe pain medications, spurring three bills in addition to the core legislation to overhaul the program to make it more effective.

The Sacramento Business Journal reports that Senate Bill 304 sailed out of the Senate May 28 by a vote of 35-2. The bill by Sen. Curren Price would move medical board investigations to the Office of the Attorney General and make other changes. The idea is to put medical board investigators in the same place as prosecutors who specialize in handling doctor discipline. Talks continue between Curren and board staff on how to tighten control and increase efficiency at the agency.

The Senate also approved Senate Bill 670 by Sen. President Pro Tem Darrell Steinberg, a measure designed to better protect the public from unscrupulous doctors who abuse their power to prescribe drugs. The bill would allow the medical board to inspect and copy medical records of deceased patients to determine if the death resulted from a doctor violating the law without a court order or consent of next of kin. SB 670 also gives the board authority to speed up license suspension orders during investigations if the doctor was allegedly overprescribing drugs or if behavior related to drug prescribing has led to the death of a patient.

To facilitate these actions, Senate Bill 62 by Price would require coroners, if they receive information that indicates the cause of death is the result of prescription drug use, to file a report with the medical board. This bill passed out of the Senate by a vote of 39-0.

Senate Bill 809 by Sen. Mark DeSaulnier faced some final hurdles but sailed out of the Senate with a unanimous vote May 30 after its urgency clause was dropped and added back. If approved by lawmakers and signed by the governor, the bill seeks to save and modernize the Department of Justice’s Controlled Substance Utilization Review and Evaluation System (Cures) to monitor drug prescriptions for overuse – and overprescribing – of narcotic painkillers. SB 809 would impose a 1.16 percent licensing fee increase on prescribing health care providers, create an annual fee on narcotic drug manufacturers who do business in California and authorize the Department of Justice to see grant funding from health insurance plans and workers’ compensation insurers.

Sylmar Chirporactor and Others Indicted In $22 Million Fraud Schemes

Twelve Los Angeles-area residents-including California’s second-largest biller for chiropractic services, a physician’s assistant, and owners of durable medical equipment (DME) and ambulance companies-were taken into custody in relation to seven criminal cases that allege they cumulatively submitted more than $22 million in false billings to Medicare. The charges filed in Los Angeles are part of a nationwide “takedown” by Medicare Fraud Strike Force operations in eight cities that led to charges against 89 individuals for their alleged participation in schemes to collectively submit about $223 million in fraudulent claims to Medicare.

Dr. Houshang Pavehzadeh, of the Sylmar Physician Medical Group, allegedly billed Medicare more than $1.7 million for chiropractic treatments he never performed. During the scheme, which ran from 2005 through 2012, Dr. Pavehzadeh, 40, of Agoura Hills, became the second-largest Medicare biller in California for chiropractic services-even though he was not in the United States when some of the alleged services were performed. In addition to being charged with health care fraud, Pavehzadeh is charged with aggravated identity theft related to Medicare beneficiaries whose information he used to bill Medicare as a part of the scheme. When 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. Nine defendants affiliated with DME companies were also charged in five separate indictments.

Olufunke Fadojutimi, 41, of Carson, a registered nurse; Ayodeji Temitayo Fatunmbi, 41, formerly of Carson and now believed to be residing in Nigeria; and Maritza Velazquez, 40, of Las Vegas, were charged with health care fraud. The scheme allegedly revolved around Lutemi Medical Supplies, a DME company Fadojutimi owned and where Fatunmbi and Velazquez worked. According to the indictment in this case, Lutemi billed Medicare more than $8.3 million in claims, primarily for medically unnecessary power wheelchairs. Fadojutimi and Fatunmbi allegedly laundered Medicare funds in order to purchase fraudulent prescriptions for those power wheelchairs and pay illegal kickbacks to recruit Medicare beneficiaries. Fadojutimi was arrested in Los Angeles, while Velazquez was arrested in Las Vegas. Fatunmbi is currently a fugitive being sought by federal authorities.

Susanna Artsruni, 45, of North Hollywood, and Erasmus Kotey, 76, of Montebello, a licensed physician’s assistant, allegedly worked together to commit health care fraud out of a medical clinic on Vermont Avenue where they both worked. Kotey allegedly prescribed medically unnecessary DME, including power wheelchairs, for Medicare beneficiaries. Many of those power wheelchair prescriptions were then used by Artsruni’s DME company, Midvalley Medical Supply, to support fraudulent claims to Medicare. In only four months, the clinic and Midvalley billed Medicare more than $525,000 for these fraudulent claims. Artsruni has previously been convicted of health care fraud and was on pre-trial supervision at the time she allegedly laundered some of the proceeds of this fraud. Artsruni was arrested this morning, while Kotey self-surrendered.

Three other DME cases were also charged, alleging fraudulent Medicare billing for medically unnecessary power wheelchairs that were sometimes never even delivered. In one case, Akinola Afolabi, 53, of Long Beach, the owner of Emmanuel Medical Supply, allegedly submitted more than $2.6 million in false and fraudulent billing to Medicare. In another case, Queen Anieze-Smith, 52, of Encino, and Abdul King-Garba, 47, of Westwood, the owners and operators of ITC Medical Supply, allegedly submitted more than $1.8 million in false and fraudulent billing to Medicare. In the third case, Clement Etim Aghedo, 53, of Fontana, the owner of Ace Medical Supply Company, allegedly submitted more than $1.8 in false and fraudulent claims to Medicare. Afolabi, Anieze-Smith, and King-Garba were all arrested, while Aghedo self-surrendered.

In the seventh case brought as part of the takedown, three defendants affiliated with Gardena-based ProMed Medical Transportation, an ambulance company, were charged with submitting more than $5.9 million in false claims to Medicare between 2008 and 2011. ProMed’s owner, Yaroslav Proshak, 45, of Valley Village; general manager Sharetta Wallace, 35, of Inglewood; and office manager and biller Sergey Mumjian, 40, of West Hollywood, submitted claims for medically unnecessary transportation services and then created fake documentation purporting to support those claims. Proshak, Wallace, and Mumjian were arrested this morning.

The Medicare Fraud Strike Force operations are part of the Health Care Fraud Prevention and Enforcement Action Team (HEAT), a joint initiative announced in May 2009 between the Department of Justice and the Department of Health and Human Services to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.

Stem Cell Treatment for Spine Injury Approved for Human Trials

StemCells, Inc. announced that Health Canada has authorized the Company to expand its Phase I/II clinical trial for chronic spinal cord injury into Canada. The Phase I/II trial, currently underway in Zurich, Switzerland, is designed to evaluate the safety and preliminary efficacy of the Company’s proprietary HuCNS-SC® product candidate (purified human neural stem cells) as a treatment for chronic spinal cord injury. With this authorization from Health Canada, the Company is actively working to open one or more trial sites in Canada and begin screening patients.

“This should be very welcome news for spinal cord injury patients in North America,” said Stephen Huhn, MD, FACS, FAAP, Vice President and Head of the CNS Program at StemCells, Inc. “One of the patients in our trial is a Canadian and he endured some challenging logistics to get to and from Switzerland. The addition of sites located in North America will significantly ease the burden on Canada- and US-based patients and their families who may wish to participate in our trial.

“In addition, given the excellent safety profile and encouraging results seen to date in the three patients with complete injury, we have amended the clinical protocol to allow continued enrollment of patients with complete injury in addition to patients with the less severe, or incomplete injury. We are confident that the amended protocol combined with the addition of North American trial sites will accelerate enrollment of patients with varying degrees of spinal cord injury.”

To date, four patients have been enrolled in the Company’s Phase I/II trial and transplanted with HuCNS-SC cells. The first three patients had all suffered a complete injury to the thoracic (chest-level) spinal cord, classified as AIS A according to the American Spinal Injury Association Impairment Scale (AIS). In a complete injury, there is no neurological function below the level of injury, and sensory function of all three patients was stable before transplantation of the HuCNS-SC cells. The first three patients completed the trial in December 2012 and data from these patients showed multi-segment gains in sensory function in two patients twelve months post-transplantation of the HuCNS-SC cells. One of these two patients converted from a complete injury classification to an incomplete injury, while the third patient remained stable. Unlike the first three patients, the fourth patient in the study had suffered an incomplete injury, classified as AIS B, because of preserved sensory function below the level of injury.

The Phase I/II clinical trial of the Company’s HuCNS-SC cells is designed to assess both safety and preliminary efficacy. The Company anticipates twelve patients with thoracic (chest-level) neurological injuries at the T2-T11 level will be enrolled. The trial is open to patients in Europe and North America with a complete or incomplete injury classified according to the American Spinal Injury Association Impairment Scale. In a complete injury, there is no neurological function below the level of injury, while in an incomplete injury, there is some preservation of function below the level of injury.

Jurisdiction May Be Raised More Than 90 Days After an Injury

Sergio Perez, an Arizona resident, was hired by Hilltown Packing, a California based company to work at their facility in Arizona. The job offer and the acceptance of that offer were both made in Arizona. While working in Arizona, Perez had an industrial injury. He received medical treatment in Arizona.

He then moved on his own back to his primary residence in California where he continued to receive treatment and ultimately filed a California Workers’ Compensation claim. When he was released for light duty work, he returned to Arizona.

More than 90 days after the injury, the employer denied the California claim based upon the argument that there was no jurisdiction to proceed before the California WCAB. The WCJ agreed with the employer and found that there was no California jurisdiction over the Arizona injury and dismissed the application. Sergio Perez filed a petition for reconsideration.

The WCAB panel agreed with the WCJ, finding that there was no jurisdiction to proceed in California in the case of Perez v. Workers’ Comp. Appeals Bd., 2013 Cal. Wrk. Comp. LEXIS 91.

The ruling on jurisdiction was consistent with well established law. Support for the finding exists in a number of published opinions such as Ledbetter Direction Corp. v. W.C.A.B. (Salvaggio) (1984) 156 Cal. App. 3d 1097, 203 Cal. Rptr. 396, 49 Cal. Comp. Cases 447.which was cited by the WCAB panel.

Another one of the issues raised by Perez in his Petition for Reconsideration was that the employer was “estopped” from raising jurisdiction as an issue since that issue was raised for the first time more than 90 days following the injury. The WCAB disagreed holding that Labor Code § 5402 “merely creates a presumption that a compensable industrial injury was sustained if not denied within 90 days. It does not establish that the WCAB has jurisdiction to award benefits for that compensable injury.” The WCAB also pointed out, as did the WCJ, that objections to subject matter jurisdiction may be raised at any time and that jurisdiction cannot be conferred by consent, waiver, or estoppel.

Visalia Physician Indicted for Drug Trafficing

A federal grand jury returned a 27-count indictment against Terrill Eugene Brown, 61, of Visalia, charging him with conspiracy to dispense oxycodone, dispensing of oxycodone and hydrocodone, and structuring currency transactions to avoid bank reporting requirements, United States Attorney Benjamin B. Wagner and Fresno County District Attorney Elizabeth Egan announced.

According to the indictment, Brown, a medical doctor, sold prescriptions for large quantities of highly addictive, frequently diverted prescription drugs, including oxycodone and hydrocodone, without medical necessity. Brown sold prescriptions to customers that did not have a legitimate medical purpose and were not in the usual course of his professional practice. Brown deposited the cash earned from this into different personal bank accounts in a manner designed to avoid currency transaction reporting requirements.

Oxycodone, also known as “oxy,” is a narcotic analgesic or painkiller and is classified as a Schedule II controlled substance. Demand for oxycodone-based prescription pain medication has grown to epidemic proportions in the United States, and dealers profit by selling such medication on the street. Oxycodone-based Schedule II drugs have a high potential for abuse, and users will often crush and snort the pills or dissolve and inject them to get an immediate high. This abuse can lead to addiction and overdose, and, sometimes death. Hydrocodone is an addictive prescription painkiller, the abuse of which may lead to severe psychological or physical dependence. Hydrocodone is sold generically or under a variety of brand names, including Vicodin, Vicoprofen, Lortab, Lorcet, and Norco.

“Addiction to prescription painkillers is a very serious problem. Diversion of such drugs to the black market is a danger to public health,” stated U.S. Attorney Wagner. “The indictment alleges that the defendant prescribed thousands of highly addictive pills for his own personal profit and with complete disregard for where they would end up or who would take them.”

If convicted of the controlled substances crimes, Brown faces a maximum statutory penalty of 20 years in prison and a $1 million fine, and if convicted for the structuring, he faces 10 years in prison and a $500,000 fine. Any sentence, however, would be determined at the discretion of the court after consideration of any applicable statutory sentencing factors and the Federal Sentencing Guidelines, which take into account a number of variables.

This case is the product of an investigation by the Drug Enforcement Administration, the Internal Revenue Service-Criminal Investigation, and the Medical Board of California, California Bureau of Investigation. The case is being prosecuted by Nathan Lambert, a Fresno County Deputy District Attorney sworn in as a Special Assistant U.S. Attorney for the case, and Assistant U.S. Attorney Kathleen A. Servatius. This case is being brought as part of Operation Footprint, a nationwide law enforcement initiative that targets large drug trafficking organizations by identifying the transfer of drug proceeds through financial institutions, bulk cash smuggling and other forms of money transfers. Operation Footprint is focused on bringing criminal charges based on Bank Secrecy Act violations in addition to violations of the Controlled Substances Act and the Money Laundering Control Act. This case is also the product of the Organized Crime Drug Enforcement Task Force (OCDETF), a focused multi-agency, multijurisdictional task force investigating and prosecuting the most significant drug trafficking organizations throughout the United States by leveraging the combined expertise of federal, state and local law enforcement agencies.

DWC Again Proposes Modifications to SJDB Regulations

A second 15-day notice of modification to the supplemental job displacement benefit regulations has been distributed to interested parties and posted to the DWC website. Members of the public are invited to present written comments regarding the proposed modifications to dwcrules@dir.ca.gov until 5 p.m., June 21.

The proposed modifications include:

  • The Physician’s Return to Work and Voucher Report (DWC-AD Form 10133.36) is modified to clarify the descriptors for the activity restrictions and to reflect that any job descriptions provided to the physician would discuss physical requirements rather than activity restrictions.
  • Section 10117 is modified to delete “employer has knowledge that the” from subdivision (b).
  • Section 10133.31 is modified to include the 60 day time frame for making an offer of work.
  • Section 10133.34 is modified to include subdivision (b) which discusses the 60 day time frame for making an offer of work.

The notice, text of the regulations, and forms can be found on the proposed regulations page.

Medicare Database Flaws Invite Medical Fraud and Abuse

A government review released on May 29 finds Medicare overwhelmed by new-medical provider information and unable to police its existing databases against the fraudulent use of taxpayer money. Government investigators found that the data systems used to catalog the records of Medicare providers were riddled with inaccurate or incomplete information. When compared, 97 percent of files studied were inconsistent.

The report, released by the Department of Health and Human Services’ Inspector General, focused on two Medicare databases that manage important provider information, the National Plan and Provider Enumeration System (NPPES) and the Provider Enrollment, Chain and Ownership System (PECOS). The HHS IG found Medicare’s databases for processing medical providers “inaccurate,” opening the door for potential waste, fraud and abuse.

The systems contain the information and identifiers of healthcare providers enrolled in Medicare and assist the government healthcare system in processing payments to those providers. The IG report found data in both systems was “often inaccurate and occasionally incomplete, and were generally inconsistent between the two databases.”

Nearly half–48 percent–of the files containing identifiers assigned to providers by the Centers for Medicare &Medicaid Services were inaccurate. PECOS, which is used to process provider information, had inaccuracies in 58 percent of its files. When provider information from both databases was compared, 97 percent of the files had conflicting information, including the addresses of providers that were billing Medicare.

The IG report also found that CMS did not verify most of the information in either database, raising the possibility that fraudulent information had been used to scam the system.

But the IG report found that, while CMS had processes in place to verify provider data, “the manner in which CMS implemented these processes impeded efforts to ensure that the databases contained accurate information.”

Faced with surging provider applications to fill the increased role of Medicare, CMS allowed for the suspension of other verification processes that may have caught inaccurate data. “The suspension of provider enrollment verification activities at a time of increased application volume could have compromised the accuracy and completeness of PECOS data, increasing the vulnerability of the Medicare program to fraud and abuse,” the IG report said.

The report also noted that CMS oversight allowed for ineffective safeguards in the verification process and suspended others to expedite the processing of provider information.

The IG report recommended stronger oversight and safeguards after noting that three out of four providers identified inaccurate data in either system.

WCJ Cris Gondak to Become WCAB Deputy Commissioner

Chairwoman Ronnie G. Caplane of the California Workers’ Compensation Appeals Board: announced that WCJ Cris Gondak has been appointed to the position of Deputy Commissioner at the Workers’ Compensation Appeals Board.

As a Deputy Commissioner, Judge Gondak will supervise the Appeals Board’s staff attorneys, train and mentor new attorneys and act as counsel to the Commissioners when necessary. She will also participate in drafting regulation, en banc and significant panel decisions as well as participate as a panelist on cases as necessary.

Judge Gondak has been a Workers’ Compensation Administrative Law Judge in Santa Rosa and Oakland since 1998. Prior to that, she was a partner at Hanna, Brophy, MacLean, McAleer and Jensen in Oakland where she began her career in workers’ compensation law in 1981. Judge Gondak received her JD from U.C. Hastings College of the Law in 1975 and her BA from Stanford University in 1971.

Chairwoman Caplan said that “Judge. Gondak is a highly respected Workers’ Compensation Administrative Law Judge for her legal acumen, knowledge, evenhandedness and well-reasoned decisions. She brings a wealth of experience and a good sense of humor to the Appeals Board. We look forward to having Judge Gondak join us on July 1, 2013.”