Supreme Court Refuses to Hear Case From Nebraska and Oklahoma That Challenges Colorado’s Marijuana Laws

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm
On March 21, 2016, the Supreme Court declined to hear a lawsuit from neighboring states challenging Colorado’s legalization of recreational marijuana. The complaint from Nebraska and Oklahoma states that Colorado’s relaxation of marijuana laws undermines federal law. Both states said that Colorado’s move to decriminalize certain uses of marijuana increases trafficking into their states, requiring them to expand law enforcement, judicial system and penal system resources. The Supreme Court turned down the complaint without comment.

The Complaint.

In this unusual case, the two states asked the justices to allow them to file a lawsuit directly in the Supreme Court. The Constitution gives the court such “original jurisdiction” to hear disputes between states, but the court uses it sparingly. “The State of Colorado authorizes, oversees, protects and profits from a sprawling $100-million-per-month marijuana growing, processing and retailing organization that exported thousands of pounds of marijuana to some 36 states in 2014,” the two states, Nebraska and Oklahoma said in their petition to the court. “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”

Refusal to Hear the Case.

According to the Obama administration, the change and loosening of penalties in other states does not undermine federal drug laws and therefore, advised the court not to accept the case. Solicitor General Donald B. Verrilli Ir., the federal government’s top appellate lawyer, said both states had not shown the direct injury that warrants granting what the court calls original jurisdiction to hear interstate disagreements.

The Supreme Court did not comment or explain why it declined to hear the case.

To read more on the legalization of marijuana in Colorado, click here to read one of my prior blogs.

To learn more about medical marijuana law in general, click here for our medical marijuana law blog.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com

Sources:

Liptak, Adam. “Supreme Court Declines to Hear Challenge to Colorado’s Marijuana Laws.” The New York Times. (March 21, 2016). Web.

Barnes, Robert. “Supreme Court turns down case that challenges Colorado marijuana law.” (March 21, 2016). Web.

About the Author: C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620. It has a branch office in Fort Collins, Colorado.

KeyWords: Medical marijuana, medical cannabis, recreational marijuana, Colorado’s relaxation of marijuana laws, Colorado’s medical marijuana laws, legalization of medical marijuana, medical marijuana law, legal representation for medical marijuana law, medical marijuana law defense attorney, defense lawyer, health care lawyer, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2016 The Health Law firm. All rights reserved.

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Mississippi Nurse Practitioner Charged With Defrauding Medicaid

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm

A nurse practitioner from Corinth, Mississippi, turned herself over to the authorities on Friday, January 8, 2016.  Tami Bivens-Johnson was indicted on three counts of Medicaid fraud by an Alcorn County Grand Jury.  Bivens-Johnson’s charges constitute felonies and account for more than $3,200 in fraudulent claims for Medicaid benefits.

Her Alleged Crimes Against Medicaid.

The first of Bivens-Johnson’s counts alleged the nurse practitioner billed phone consultations as office visits.  Phone consultations fall under telemedicine and therefore require their own set of current procedural terminology (CPT) codes separate from face-to-face visits.  For more information on relevant CPT codes for phone consulting from American Medical News, click here.  Telemedicine is viewed as a cost-effective alternative to the more traditional face-to-face consultations or examinations between patient and provider for providing medical care.  Accordingly, states have flexibility in determining the following aspects of the practice:

(a)    Whether to cover telemedicine;

(b)    What types of telemedicine to cover;

(c)    Where in the state it is covered;

(d)    How it is provided and covered;

(e)    What types of practitioners providing telemedicine may be reimbursed and whether such practitioner or provider is “recognized” and qualified according to Medicaid statutes and regulations; and

(f)    How much to reimburse for telemedicine services, as long as such payments do not exceed Federal Upper Limits.  For more information on Federal Upper Limits from Medicaid.gov, click here.

For more information on telemedicine from Medicaid.gov, click here.

The remaining two counts against Bivens-Johnson were for alleged claims filed for services while the nurse practitioner was out of state.

Penalties That May Ensue.

It was reported that if convicted, Bivens-Johnson faces a prison term of up to 15 years and $150,000 in fines.  And while that’s a fairly hefty punishment all on its own, that may not be all.  According to the National Association of Medicaid Fraud Control Units (NAMFCU), federal regulations stipulate that providers who are convicted of a program related offense are excluded from receiving funds from any federally funded health care program for a minimum of five years.  This is the case whether billing as a separate health care provider or as an employee of any health care facility.  This sanction can greatly impact convicted providers and the provider community alike.

For more information on fraud and abuse laws issued by the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG), click here.

Comments?

Are you currently under investigation for suspected Medicaid fraud?  Are you currently involved in a Medicaid audit?

Contact a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent health care providers in Medicaid audits, Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620.

Sources:

“Corinth Nurse Charged With Medicaid Fraud.”  Daily Journal.  dJournal.com: 8 Jan. 2016.  Web.  11 Jan. 2016.

“Telemedicine.”  Centers for Medicare and Medicaid Services.  Medicaid.gov: Web.  13 Jan. 2016.

About the Author: Carole C. Schriefer is an attorney and registered nurse.  She practices with The Health Law Firm, which has a national practice.  Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.  Its main office is in the Orlando, Florida area.

KeyWords: Centers for Medicare and Medicaid Services (CMS), Office of Inspector General (OIG), Medicaid audit attorney, Medicare fraud defense attorney, Medicaid fraud defense attorney, Medicare Fraud Strike Force, nurse practitioner attorney, legal representation for nurse practitioners, legal representation for Medicaid providers, Zone Program Integrity Contractor (ZPIC) audit lawyer, Recovery Audit Contractor (RAC) lawyer, Florida health attorney, health law attorney, Florida health lawyer, The Health Law Firm, health law defense lawyer, health professional attorney, Medicare fraud defense lawyer, Medicaid fraud defense lawyer,  National Association of Medicaid Fraud Control Units (NAMFCU), penalties for Medicaid fraud, telemedicine practitioner attorney, telemedicine provider lawyer, exclusion from Medicaid program

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2016 The Health Law Firm. All rights reserved.

Colorado Health Officials ‘Just Say No’ to Marijuana for PTSD Treatment

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm

The Colorado Board of Health denied a motion to approve medical marijuana as a treatment for post-traumatic stress disorder (PTSD) on July 15, 2015. The rejection was made despite the recommendation of the state’s chief medical officer. This marks the third time that Colorado’s health officials have said ‘No’ to including PTSD on its medical marijuana approved uses list.

Is Marijuana Medicine?

The Colorado Board of Health voted 6-2 to reject a petition for PTSD to be included as a “debilitating condition” that can be treated with medical marijuana. Despite hearing testimony from several veterans pushing for approval, some board members believed that there was not enough scientific evidence to support this claim. To read this article in full from The Denver Post, click here.

To read a past blog on marijuana policy, click here.

Vote Yes.

According to The Denver Post, supporters of the proposal say that rather than focusing on the hard science, the needs of patients should also be considered. If it had been approved, it would have allowed physicians to recommend certain marijuana strains that provide relief without a ‘high’, according to Teri Robnett, director of the Cannabis Patients Alliance. Click here to go to their website and learn more about the Cannabis Patients Alliance.

Legal But With Limits.

Despite this recent rejection, Colorado has approved the use of marijuana for various health ailments. Colorado’s approved list of uses for medical marijuana currently includes muscle spasms, epilepsy, cancer, severe glaucoma and nausea. Currently, nine states allow physicians to recommend medical marijuana treatment for PTSD patients. To read a past blog on uses of medical marijuana, click here.

Comments?

Do you agree that PTSD should be excluded from the medical marijuana approval list? Do you approve of using medical marijuana as a treatment? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Draper, Electa. “Colorado Board Voted No on Allowing Medical Marijuana for PTSD.” The Denver Post. (July 15, 2015). From: http://www.denverpost.com/news/ci_28487952/colorado-board-votes-no-allowing-medical-pot-ptsd

Gray, Eliza. “Colorado Health Board Votes ‘No’ on Treating PTSD With Marijuana.” Time. ( July 15, 2015). From: http://time.com/3960940/colorado-ptsd-marijuana/

Coffman, Keith. “Colorado Rejects Medical Marijuana for PTSD Treatment.” Reauters. ( July 18, 2015). From: http://www.reuters.com/article/2015/07/16/us-usa-colorado-marijuana-idUSKCN0PQ0CC20150716

About the Author: Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

KeyWords: Colorado Board of Health, Colorado Marijuana law, Cannabis Patients Alliance, post-traumatic stress disorder, PTSD, medical marijuana for PTSD treatment, PTSD treatment, medical marijuana approval list, medical marijuana treatment, licensed medical marijuana user, medical marijuana defense attorney, marijuana lawyer health law, health care attorney, health care lawyer, medical cannabis, health law firm, The Health Law Firm

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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Questions and Answers about Complaints and Disciplinary Actions for Nurses, Physicians, Pharmacists and Other Health Care Professionals Being Investigated by the Colorado Department of Regulatory Agencies (DORA), Division of Professions and Occupations

5571 darken lighten center w skin softBy Carole C. Schriefer, R.N., J.D., The Health Law Firm

When a physician, pharmacist, nurse or other licensed health professional in Colorado has a complaint filed for professional negligence or other professional wrongdoing, it is investigated by the Colorado Department of Regulatory Agencies or “DORA.” This will usually come in the form of a letter to the subject of the investigation. We recommend that you immediately contact an attorney experienced in such health professional licensure matters, and not try to respond or handle it by yourself. In many cases, your professional liability insurance will pay for your legal representation, even for a licensure action.

Following are some frequently asked questions and answers about DORA investigations.

Q: What is a “basis” for disciplinary action?

A: Each profession has a practice act, also known as an organic act or statute. These practice acts contain laws that govern a particular profession. The legal grounds for disciplinary action against a particular type of professional are set forth in the applicable practice act.

Q: How does the disciplinary process begin?

A: The disciplinary process begins when a complaint is filed with the regulatory authority by any member of the public, or when a regulatory authority initiates a complaint on its own.

Q: What is a complaint?

A: In the context of a professional disciplinary action, a complaint is an allegation that a licensee, certificate holder or registrant has violated the laws set forth in the applicable practice act. It is filed with or initiated by the appropriate regulatory authority, and it marks the beginning of the disciplinary process against a licensee, certificate holder or registrant.

Q: What happens after the complaint is filed?

A: The regulatory authority or its staff will review the facts alleged in the complaint to determine whether, if proven to be true, these facts constitute reasonable cause to believe a violation of the practice act has occurred. If the initial review determines that the regulatory authority does not have jurisdiction or that the regulatory authority does not have reasonable cause to believe that a violation has occurred, the complaint will be dismissed, possibly with a confidential letter of concern to the licensee, certificate holder or registrant from the regulatory authority.
If the regulatory authority determines that it has reasonable cause to believe a violation of the practice act has occurred, a letter of admonition may be issued, the matter may be referred for disciplinary action, the action may be tabled to gather information, or a request may be submitted for a formal investigation with the Office of Investigations.

Q: What is the Office of Investigations?

A: Some complaints are investigated internally by the staff for a particular regulatory authority. However, the regulatory authority may also refer the complaint to the Office of Investigations, a program within the Division of Registrations, Department of Regulatory Agencies.

Q: If the complaint is forwarded to the Office of Investigations, do I receive notice?

A: You generally will receive a letter from the individual regulatory authority informing you that your complaint has been forwarded to the Office of Investigations. In some circumstances, however, the first contact you have regarding a complaint will be from the investigator assigned to handle the complaint.

Q: Do I need an attorney at this point?

A: A license, certificate or registration is an important property interest. It is important to remember that the regulatory authority, its staff, and the Office of Investigations cannot provide you with legal advice. You are not required to hire an attorney, but you have the right to be represented by an attorney at any stage of the proceeding. You are responsible for any costs associated with hiring an attorney. Your professional liability insurance carrier might provide assistance with legal costs associated with a professional disciplinary action.

Q: What happens in an investigation?

A: When a complaint is referred to the Office of Investigations, the assigned investigator acts as an impartial, fact-finding third party and does not “represent” the complainant, the regulatory authority, or the licensee, certificate holder or registrant. The Office of Investigations receives 500-600 cases a year. The average time to complete a case is 6 to 8 months depending on the complexity, witness cooperation and caseload of the investigator.
The investigator normally reviews the complaint and the response, subpoenas or otherwise obtains copies of pertinent documents or records, interviews witnesses and the licensee, certificate holder or registrant, and, where appropriate, retains an expert consultant to review the case. The investigator then prepares a written report that is reviewed by the regulatory authority, which will then determine whether to pursue disciplinary action. The investigator does not make any recommendations to the regulatory authority regarding what disciplinary action, if any, to take.

Q: How long does an investigation take?

A: The time frame to complete an investigation will vary. However, investigators try to process a complaint within 180 days of receipt of the complaint in the Office of Investigations. At times, the investigation of a case may take longer than 180 days. You may ask the investigator assigned to your case for an estimate of when the Report of Investigation will be prepared and presented to the regulatory authority.

Q: Do I get a copy of the Report of Investigation?

A: Generally, reports are not available to the public or to the licensee, certificate holder or registrant during the investigative stage of the proceeding or review process.

Q: Do I get notice of when the regulatory authority will review the Report of Investigation in my case?

A: This varies between programs. You may contact the regulatory authority or the investigator to inquire about the status of the investigation and the dates and locations of any meetings where the matter might be discussed. Some programs review Reports of Investigation in a closed meeting, which is not open to the public, including the licensee, certificate holder or registrant. Even if the disciplinary portion of the meeting is open to the public, generally you will not be permitted to address the regulatory authority and will only be allowed to listen to the discussion. Please check with the staff of your program.

Q: Can the public review government documents?

A: Regulatory authorities are governed by the Colorado Open Records Act, which provides the public access to certain government documents. Confidentiality requirements vary from program to program, and the investigator assigned to your case cannot advise you on this topic.

Q: What happens after the regulatory authority reviews the Report of Investigation?

A: If the regulatory authority finds that no violation occurred or that disciplinary action otherwise is not warranted, the case will be dismissed. If the regulatory authority finds that disciplinary action is not warranted, but that it has concerns about the conduct at issue, it may dismiss the case with a confidential letter of concern. If the regulatory authority finds that a violation occurred, it may impose discipline, including but not limited to a public letter of admonition, a probationary license, a suspension or a revocation. Disciplinary cases will be referred to the Office of Expedited Settlement (ESP) for settlement or the Office of the Attorney General (OAG) for formal prosecution of the matter.

Q: What happens when your case is referred to ESP?

A: If your case is referred to ESP, you will be contacted by a staff member from ESP who will provide you with the offer of settlement approved by the regulatory authority. Generally, if a settlement is not reached within 90 days, the matter will be referred to the Office of Attorney General (OAG).

Q: What happens if the case is referred to the OAG?

A: If your case is referred to the OAG, the assigned Assistant Attorney General will provide legal representation to the regulatory authority. The Assistant Attorney General may prepare formal charges based upon the alleged violations of the practice act. If formal charges are filed, a hearing will be conducted before an administrative law judge at the Office of Administrative Courts to determine whether the charges are proven. At the hearing, you would have the right to be represented by counsel, and would have the opportunity to present and confront oral and documentary evidence, and to testify in your own defense.

Q: What happens if, after the hearing, I am found to have committed a violation?

A: Following the hearing, the administrative law judge will issue an initial decision, which will include factual findings, conclusions of law and a recommended sanction. Either party may challenge the initial decision by filing exceptions with the regulatory authority. The regulatory authority will review the initial decision and issue a final agency order that may adopt, partially adopt or reverse the initial decision. If a violation of the practice act is established, the final agency order may impose sanctions, which can include a letter of admonition, a fine, continuing education, probation, suspension or revocation of your license, certificate or registration. You have the right to appeal the final agency order to the appropriate court.

Q: Is it possible to get a copy of disciplinary actions filed against a licensed professional or entity?

A: Yes. You can access any public disciplinary action document through our Online Services. To look up an licensee, registrant or certificate holder and learn if there are any public disciplinary action documents available, please visit Online Services License Lookup website: https://www.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx

Contact Health Law Attorneys Experienced in the Representation of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.


About the Author:
Carole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456.

Sources: The above information is mostly from the Colorado DORA website as of 8/17/2015.

Notice: This is the provision of general information only and does not constitute the provision of legal advice. Every case is different and every set of facts and circumstances is different. Consult a lawyer about your individual case.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Colorado Credit Union Specifically for the Marijuana Industry

By: Carole C. Schriefer, R.N., J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

While most banks are refusing to work with marijuana businesses, The Fourth Corner Credit Union is welcoming them with open arms. On November, 19, 2014, the credit union was granted a charter by Colorado’s banking regulators. However, it still awaits a master account number from the Federal Reserve, which will give it access to the country’s electronic banking system. The process to get a account number typically takes weeks, but the credit union has been waiting for an answer for seven months.

The Fourth Corner Credit Union is Making a Difference in the Marijuana Industry.

The Fourth Corner Credit Union will accept  cash deposits and allow customers to make electronic transfers for payroll and rent, and to purchase supplies. In November, the credit union had high hopes of a master account number without a fight, because the Federal Reserve gives the numbers to organizations that are granted state charters. However, seven months later the credit union still has a “Coming Soon” banner hanging above the front door.

To comply with state and federal rules, Fourth Corner will largely limit its operations to Colorado. Transactions will be approved by bankers who are keeping a close eye on where the money is transferring to ensure it is going towards the business and not redirected to cartels or gangs.

Recreational Marijuana in Colorado.

Colorado is one of four states, including D.C., that allows recreational pot. However, marijuana is still illegal on the federal level, which regulates banks. Banks will not offer the businesses an account to access the traditional banking system. This leaves Colorado’s marijuana businesses in a bind and without a means to accept credit cards, debit cards or checks.

The state is home to nearly 800 recreational marijuana shops, taking in a total of $38 million in cash during February 2015. The businesses are forced to stockpile the enormous amounts of cash in homes or in safes, because there is nowhere for the businesses to put it. Handling this amount of cash is not a small task, it is time-consuming, dangerous and costly. Thus, it is important for marijuana business owners in Colorado to have a safe place to store money and conduct business transactions.

Comments?

What are your thoughts on a credit union specifically focusing on the marijuana industry? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com

Sources:

Hughes, Trevor. “Colorado OKs Marijuana Credit Union.” USA Today. (December 8, 2014). From:
http://www.usatoday.com/story/news/nation/2014/12/08/colorado-oks-marijuana-credit-union/20056367/

Fox31 Denver. “Pot Problem: Banks Still Don’t Want This Cash.” (April 14, 2015). From:
http://kdvr.com/2015/04/14/pot-problem-banks-still-dont-want-this-cash/

Richtel, Matt. “The First Bank of Bud Marijuana Industry in Colorado, Eager for Its Own Bank, Waits on the Fed.” The New York Times. (February 5, 2015). From:
http://www.nytimes.com/2015/02/08/business/marijuana-industry-in-colorado-eager-for-its-own-bank-waits-on-the-fed.html?_r=0

About the Authors: 5571 darken lighten center w skin softCarole C. Schriefer is a nurse-attorney with The Health Law Firm, which has a national practice. George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620. It has a branch office in Fort Collins, Colorado.

KeyWords: The Fourth Corner Credit Union, Medical marijuana, medical cannabis, recreational marijuana, recreational cannabis, defense attorney, defense lawyer, health lawyer, marijuana, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.

CRIMINAL LAW: Search and Seizure—Probable Cause for Search in Light of—Enactment of Medical Marijuana Law

The guest author of this article is Mark Rieber, Senior Attorney, National Legal Research Group.

In Commonwealth v. Canning, 28 N.E.3d 1156 (Mass. 2015), the court held as a matter of first impression that with the Commonwealth’s new medical marijuana law (“the Act”) in effect, if the police seek a warrant to search a property where they suspect an individual is cultivating or possesses marijuana, then they must first offer information sufficient to provide probable cause to believe that the individual is not properly registered under the Act to possess or cultivate the suspected substance. The court rejected the Commonwealth’s argument that any cultivation of marijuana remained illegal even under the Act. That argument further asserted that to the extent that the Act permits a limited class of properly licensed or registered persons to grow marijuana, the existence of a license or registration is an affirmative defense for a defendant charged with unlawful cultivation to raise at trial—the Commonwealth is not obligated to disprove such a status in, or to conduct a search at the outset of, the investigation.

The court found, however, that the Act effected a change in the statutory and regulatory landscape relevant to establishing probable cause for a search targeting such cultivation. After discussing the purpose and terms of the Act, the court held that a search warrant affidavit setting out facts that simply establish probable cause to believe the owner is growing marijuana on the property in question, without more, is insufficient to establish probable cause to believe that the suspected cultivation is a crime. “Missing are facts indicating that the person owning or in control of the property is not or probably not registered to cultivate the marijuana at issue.” Id. at 1165. Because the affidavit in the case before it did not set forth such facts, the court affirmed the order allowing the defendant’s motion to suppress.

About the Author: The author of this is article is Mark Rieber, Senior Attorney with National Legal Research Group in Charlottesville, Virginia. This case summary originally appeared on The Lawletter Blog. It is republished here with permission.

This article was originally published in The Lawletter Vol 38, No. 1.

This Little Piggy Went to the Market, This Little Piggy Ended Up in Court.

Lance Leider_smBy Lance O. Leider, J.D., The Health Law Firm

The jig is up. At least it is for a podiatrist in Colorado. On Thursday, February 12, 2015, the physician in question pleaded guilty to one count of health care fraud. Through improper location coding, the podiatrist allegedly defrauded Medicare out of higher reimbursements.

According to The Daily Sentinel, the podiatrist is accused of performing services at a nursing home while claiming otherwise. The physician allegedly billed for services based upon location coding showing the patients were seen in his private office, not in the nursing facility in which they resided.  In doing so, he received a higher reimbursement rate than he was eligible for.

The Logistics of The Scheme.

When registering to become a Medicare provider, physicians are required to provide the location at which they provide services.  Then when the services are billed, a place of service modifier can be attached to the code (e.g., hospital, private office, assisted living facility, etc.) to determine whether the service qualifies for a bump in reimbursement.  Services provided in an office setting typically receive reimbursements at a higher level in order to compensate for the overhead of the physician. Office expenditures such as rent, insurance, utilities and other cost associated with running a business are taken into consideration.

dollar sign

The podiatrist was allegedly granted three months of rent-free space at the nursing home to provide services for the residents.  The physician, therefore, considered this to be enough to bill the office place of service modifier.  According to court records, the space he practiced out of was actually a storage room/beauty salon of the facility.

The charging document claims that the physician improperly billed on only two dates of services.  Reports differ on the amount of alleged fraud (some reports are as low as $2,000 while others are as high as $50,000).  But regardless of the actual, this story goes to show that the federal government is not above felony prosecution for less than “blockbuster” amounts of fraud.

The Benefits Never Outweigh the Risks.

With the sentencing hearing in May, the physician could be sentenced to probation or a maximum of 10 year in prison, and fined up to $250,000. In addition, the podiatrist will no longer be permitted to treat Medicare patients.  It is also possible that the podiatrist will be unable to retain his license to practice due to being a convicted felon and being placed on the OIG exclusion list.

arrest

If you are facing an OIG audit or investigation, you should immediately consult with an attorney experienced in handling those matters.  Retaining experienced counsel in the early stages of an OIG audit or investigation can be of great assistance in resolving the case without criminal charges or placement on the exclusion list.  Also, if you feel that your practice may be billing incorrectly for services, you should speak with an expert to determine the method and manner of any necessary repayment to the federal government.

To read the full story from The Daily Sentinel, click here.

To view court records of the case, click here.

One Last Thing.

We cannot stress enough the importance of properly registering your address with Medicare. The consequences can be damning to your career. Medicare exclusion will not only directly impact your bottom line, but it will also limit your job eligibility.

Comments?

Have you ever run into an issue with your Medicare registered address? Did you know this was a surefire way to put yourself at risk? Please leave any thoughtful comments below.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

The attorneys of The Health Law Firm represent healthcare providers in reversing termination of Medicare billing privileges, preparation of corrective action plans (CAPs), requests for redetermination, hearings on Medicare terminations, Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.