Old Debt Comes Due

 Photo credit: By Chris Yarzab [ CC BY 2.0 ],  via Wikimedia Commons

Photo credit: By Chris Yarzab [CC BY 2.0], via Wikimedia Commons

Old Debt Comes Due

In January of 1994, I was a 34-year old Los Angeles Deputy D.A.  After two hung juries, I finally convinced a third one to convict a veteran L.A.P.D. officer of using new technology (at the time, basically an LAPD laptop) to set up the robbery of a check cashing store from his squad car.

From day one, in that case, I knew the People of Los Angeles and I owed a debt to our star, in-custody witness, Greg Sims, a young South Central L.A. college dropout with lots of prison time and not much opportunity to look forward to after serving it.  He took risks to testify against the officer, without any hope of “consideration,” i.e., a reduction in his sentence.

At the end of the case, I went on with my life.  Greg Sims, on the other hand, went back to prison. Twenty-three years later that debt came due, when Dean Emeritus Lawrence Hellman of the Oklahoma City University School of Law, working pro bono, tracked me down in Pittsburgh to help petition California Governor Jerry Brown for Greg’s pardon.  Greg had endured three grueling cross-examinations in the case to do justice and bring home that conviction of the officer who committed a felony.

Pardon applications are always a long shot, but Greg deserved the chance at one.  And the Governor’s Office agreed.

It wouldn’t have, without the support of retired Oklahoma football coach Barry Switzer, for whom Greg had briefly played in college, and Cleveland County, Oklahoma’s former Sheriff Joe Lester.

It turns out that Greg had married his childhood friend Rene while he was still in prison; after it, he worked hard to build a life for her and their family in California.  He found employment, raised two sons, and saw to it that both of them got a college education and were settled into good careers. Greg and Rene just celebrated their 25th wedding anniversary and the kindergarten graduation of twin grandsons.

A couple of years ago, Greg and Rene moved back to Oklahoma and reconnected with Coach Switzer.  The coach introduced Greg to Sheriff Lester, who offered Greg a job counseling at-risk youth in the county jail.  Greg wanted that job. He knew he could speak with authority and personal conviction from serving years in California’s prisons.  But Sheriff Lester could not hire a convicted felon.  Enter Dean Hellman, another Switzer connection, who worked the process tirelessly.

On December 20, 2017, Governor Brown’s office called Greg.  The voice on the other end said, “Mr. Sims, you can tell Sheriff Lester that you are now ready to take that job.”

I had never gotten over how unfortunate Greg was to wind up in that case, which consumed some two-plus years of my life.  He was so good inside; he had so much to offer. 

Kudos to Dean Hellman for organizing Greg’s pardon application and to Governor Brown for seeing its merit.  I’m thankful for having had the opportunity to lend my support – and to pay back, at least in part, my debt from that long-ago case.
 

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Stay Out of Opioid-Related Prescription Trouble

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Stay Out of Opioid-Related Prescription Trouble

Efrem M. Grail
Mar 21, 2018
 
The first six tips and part one of this series is here.

Practitioners must take significant precautions to prevent diversion of prescription narcotics and other controlled substances they prescribe and dispense in light of the increased federal law enforcement initiatives. 

In an effort to stem the nationwide opioid abuse epidemic, last summer the Justice Department set up task forces in eleven different geographic regions headed up by specially-funded, full-time Assistant U.S. Attorneys dedicated to “investigating and prosecuting health care fraud related to prescription opioids, including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes.” 

These task forces, headquartered in Florida, Michigan, Alabama, Tennessee, Nevada, Kentucky, Maryland, Pennsylvania, Ohio, California, North Carolina, and West Virginia are supported by federal agents from, primarily from the Drug Enforcement Agency (DEA) and the Office of the Inspector General for the Department of Health & Human Services. 

In announcing the new program’s roll-out, Attorney General Jeff Sessions referenced a new “data analytics program” to identify physicians “writing opioid prescriptions at a rate that far exceeds their peers…”  In conjunction with stepped-up requirements for prescribers through next-day narcotic reporting through state-run websites, these federally-funded and supported enforcement task force have already come after physicians and other

DEA registrants who do not adequately prevent diversion of scheduled narcotics through their medical practices.Here are six more tips on how to keep from becoming caught up in the government’s newly-energized enforcement initiative.  They should strike every medical practitioner as self-evident — none of this is rocket science.  But every one of them is based on some enforcement action where a medical professional faced the prospect of state board discipline, loss of DEA registration, or worse.

1. Be aware of “frequent flyer” pharmaceutical consumers, especially those of scheduled substances and narcotics.

If a patient presents with the need for an amount of drugs that, under the circumstances, is “consistent with a readily-diagnosable condition,” consider if she should be referred to a pain management clinic or other specialist.  Otherwise, protect yourself by documenting in the patient’s file why the treatment would be recognized as proper by “a responsible segment of the medical profession,” as regulations most states and the federal government require.

2. When it comes to dangerous drugs, especially narcotics, practice medicine defensively.

While a physician should not automatically distrust a patient, experience teaches that they don’t always tell the truth. Not everyone you see in your medical practice always acts in good faith.  The life you save could be theirs, but the career you save is your own.

3. If a request for narcotics, from anyone — including from another physician — sounds suspect, it probably is.
When you get a request for a narcotics prescription — even if from a trusted colleague, friend, or family member — and it sounds suspicions, it probably is.  Fellow practitioners, medical professionals, and loved ones are not immune from addiction and misuse.  A large minority of enforcement proceedings against practitioners involve diversion to colleagues, friends and family whom the doctors know and trust.

4. Avoid the “Holy Trinity” at all costs.

Everyone has a pet peeve and all diversion enforcement agents share the same one: practitioners who prescribe Oxycodone or Hydrocodone, along with Soma and Xanax (or other drugs from their classes) together.  If you have justifiable medical reasons to prescribe a drug from each of these three categories of controlled substances simultaneously, be certain to document your reasons each and every time you write the prescriptions.  Be certain you have entered the drug orders into the state Prescription Drug Monitoring Program as required.  If scripts aren’t medically necessary, don’t write them, regardless of patient pressure. 

5. Be attuned to “Red Flag” prescribing situations.

There are other “hot buttons” for the prescription police to watch out for: doctors who write scripts for the same or similar opioids in the same quantities for large numbers of patients, often on the same day or in the same week, patients who routinely travel long distances just to see you, especially when other, closer clinics closer to them could be consulted, patients arriving in the waiting room as a group, but who act as if they don’t know each other, and prescriptions written for the same quantities of controlled substances for family members or other patients who all share the same last name(s) on the same day of treatment. 

6.  Addiction Treatment Requires Special Considerations

Even though Buprenorphine may well be at least one of the “wonder drugs” that helps end the opioid crisis, law enforcement is still coming down hard on practitioners who prescribe it in ways that support usage outside of legitimate medical treatment.  If you practice office-based (i.e., non-methadone) addiction therapy, be certain to confirm that a patient seeking Suboxone or Subutex in fact has an addiction, instead of a resale business, and determine if the patient is seeking other necessary treatment (such as therapy) to manage their addiction, before you prescribe. 

Physicians Practice: Medical License Retention Tips

March 1, 2018

Medical License Retention Tips

Your medical license is likely your most valuable -- and expensive – investment. Don't lose it by taking needless risks or doing something that looks stupid in hindsight, and could result in the diversion of prescription drugs to illegitimate use. Understand the laws designed to prevent diversion, know how the government investigates and prosecutes it, and apply practical steps you can take right now to stay on the right side of the DEA, the U.S. Attorney's Office and the your state's Attorney General's enforcement unit, and the licensing board. Your medical license and prescription privileges depend on it. 

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Grail Law Firm Client’s Felony Charges Diverted at PreTrial Stage

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The Grail Law Firm represented an oral surgeon indicted in Erie, Pennsylvania, on 21 separate counts of health care fraud and making false/fraudulent statements in connection with a health care “benefit” program.  The Indictment alleged that overbilling for health care resulted in over $90,000 in fraudulent receipts. The case began in June, 2014, when federal agents executed a search warrant at the client’s offices.  Our Firm filed numerous substantive motions, including to dismiss the Indictment and to suppress all evidence seized during the execution of the search warrant.
 
Following a petition to the local United States Attorney’s Office, and follow up discussions there, the Justice Department consented to Pretrial Diversion, whereby the defendant was placed on probation for a twelve-month period and required to pay just over $21,500 in restitution.  Under Western District of Pennsylvania protocol, our Client was not required to admit to any of the conduct or counts alleged in the Indictment, or to suffer a criminal conviction as a result.

For more details, see http://www.goerie.com/news/20171007/indicted-erie-surgeon-agrees-to-diversion-program.

Grail Law Firm in US News "Methadone Clinic Operator Gets Prison for Health Care Fraud"

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The Grail Law Firm represented a criminal defendant facing 37 months’ prison for a half million dollar health care fraud in Pittsburgh, Pennsylvania. The case began in October 2015 when federal agents executed a search warrant at the client’s health care facility.

At the sentencing, the Court granted our Firm’s defense motion to depart and vary from the recommended 30 - 37 months in prison, and sentenced the defendant to a year and a day. The Court recognized defense evidence supporting our downward departure/variance motion that the client had a proven track record of treating opioid addiction in Western Pennsylvania. The Firm presented live witness testimony and thirty-five letters to the Judge in support of the client before a full courtroom of the client’s supporters.

US News & World Report - Methadone Clinic Operator Gets Prison for Health Care Fraud