Few professions are as regulated or monitored as health care. Government regulators and prosecutors, licensing authorities, insurance companies, and hospitals all have their own sets of rules, protocols, and practices. The result can be a tangled jungle of regulations that must be faced in virtually every aspect of the health care industry.
The attorneys of Dwyer & Collora, LLP's health care practice, however, know how to deal with every vine and root of this jungle. They believe in shaping fate, not merely accepting it, and are adept at slicing through regulatory complexities to reach a favorable outcome. They have guided numerous health care practitioners through audits, investigations, and prosecutions by nearly every federal and state regulatory agency in this field.
The firm's health care attorneys have also counseled providers in avoiding entanglements with these oversight agencies and have worked with providers to develop compliance programs to ensure adherence to the various layers of statutes and regulations. To read more about compliance programs click here.
Boards of Registration in Medicine and Other Healthcare Boards of Registration
Dwyer & Collora, LLP has represented licensed health care professionals before nearly every licensing board in the Commonwealth. While these boards are governed by statutes and regulations, they also enjoy broad discretion in fulfilling their mandate to protect the public and police their respective professions. We approach these boards with counsel who have an intimate knowledge of each board's structure, policies, and traditions; their knowledge, expertise, and reputation can be essential to creating a prompt and favorable outcome.
Representative case areas include:
- Responding to complaints filed against physicians, pharmacists, dentists, nurses, chiropractors, social workers, and other licensed professionals alleging professional misconduct, substandard care, and criminal conduct. Often these complaints have been dismissed after the presentation of persuasive evidence to the boards' complaint committees. Dwyer & Collora LLP has negotiated consent orders and probation sentences that allow practitioners to continue to practice.
- Assisting physicians and other licensed health care practitioners in responding to inquiries regarding disclosures made in license applications and reports submitted by health care facilities. Frequently, these responses have resulted in boards deciding not to pursue the matter, or to focus their attention on remediation rather than discipline.
- Assisting physicians and other licensed professionals charged with drug or alcohol impairment in obtaining consent orders which contain practice or probation agreements designed to improve the licensee's practice or assist in their recovery, while permitting them to continue their professional practice.
- Trying cases before the Division of Administrative Law Appeals when an appropriate resolution has not been possible at the Complaint Committee. One such case resulted in complete exoneration for a neurosurgeon who was alleged to have been negligent in the conduct of twenty-two surgeries. Another resulted in the exoneration of a physician charged with sexual misconduct.
- Representing physicians against whom a civil malpractice complaint has been instituted. Coordinating with counsel appointed by the physician's insurer, attorneys at Dwyer & Collora, LLP frequently handle Board of Registration inquires, ensure that physicians are afforded the full scope of protection they are entitled to under their insurance policy, and monitor the progress of the civil case to ensure that nothing prejudices the physician's standing before the Board of Registration.
Top
Peer Review Proceedings
Hospital-based peer reviews often seem deceptively informal. But they can quickly snowball with devastating consequences to a physician's reputation and practice, and can lead to the imposition of disciplinary action by both the hospital and the Board of Registration in Medicine.
Dwyer & Collora, LLP's health care attorneys have extensive experience in dealing with hospital counsel and medical staffs to help minimize the collateral effects of such an investigation. Using the strength of their expertise and reputation, they can ensure that physicians are afforded the full panoply of rights guaranteed by the facility’s by-laws.
Representative cases include:
- Counseling many physicians faced with a preliminary peer review investigation. Our attorneys have often been able to persuade the medical staff to resolve the matter so that there is no report to the Board of Registration in Medicine or the National Practitioner's Data Bank.
- When an acceptable formal resolution has been unattainable, attorneys at Dwyer & Collora, LLP have represented physicians in the fair hearing process. In one such case, our attorneys represented an obstetrician who had been summarily suspended from the medical staff. Fair hearing resulted in the resumption of his staff membership with no restriction on his privileges.
- Working with attorneys from the firm’s employment practice group, Dwyer & Collora, LLP's health care practice group has successfully negotiated physicians' withdrawal from partnerships and practice groups, enabling physicians to recoup their investment in the venture and also ensure continuity of care to their patients.
Top
Criminal Investigations and Prosecutions
Dwyer & Collora, LLP has represented physicians, dentists, psychiatrists, pharmacists, chiropractors, medical clinics, medical device suppliers, clinical laboratories, hospitals and nursing homes in state and federal grand jury investigations and prosecutions. Allegations included Medicare and Medicaid fraud, such as billing for services not rendered, upcoding, performing unnecessary services, and kickback violations. Despite the seriousness of the allegations, the firm's attorneys have frequently negotiated resolutions that avoided the filing of criminal charges, and more important, did so without disruption to the client's practice and without loss of the client's license.
Representative cases include:
- Defending health care corporations and high-level executives against charges of federal health care fraud brought by the United States Attorney's Office, including one of the first cases in the country predicated upon the criminal enforcement of the Food & Drug Administration's medical device laws and cases. Spawned by national enforcement initiatives such as Operation Labscam and the investigation of renal dialysis centers, often these cases have involved coordinating joint defense teams, conducting internal investigations, collecting and analyzing hundreds of thousands of documents, and mounting challenges to novel theories of liability posed by federal prosecutors.
- Representing a North Carolina psychiatrist and his incorporated mental health clinic through two years of investigation conducted jointly by the U.S. Department of Justice and the North Carolina Medicaid Fraud Control Unit. While the investigation was pending before a federal grand jury, Dwyer & Collora, LLP's attorneys were able to fully resolve the matter through a civil settlement involving the corporation, the U.S. Department of Justice, the Department of Health and Human Services, and the North Carolina Medicaid program.
- Defending a dental clinic and its dentist-owner against criminal charges brought by the Public Protection Bureau of the Office of the Attorney General alleging the submission of false, inflated and unnecessary claims. These charges were brought under the Massachusetts False Claims Act, which, unlike its federal counterpart, is not limited to claims submitted to federal health care programs, and the allegations arose exclusively from claims submitted to a private health insurance company. The charges were resolved upon a joint recommendation of the defendants, the Attorney General and the Board of Registration in Dentistry.
- Resolved criminal indictments pending in two counties against a psychiatrist charged with writing prescriptions for controlled substances without a legitimate medical purpose. The charges stemmed from a series of undercover operations in which State Police posed as patients to obtain prescriptions.
- Representing the Vice President of Marketing for a New England independent clinical laboratory who was indicted for violations of the anti-kickback statute. The charges against her were ultimately dismissed when the corporation for which she worked tendered a plea to a misdemeanor.
- Representing a corporate pharmacy and its sole proprietor who were indicted for violations of Medicaid's usual and customary charge rules, billing for services not rendered, and submitting false claims to Medicaid. The case was resolved when the corporation offered a guilty plea, accepting liability for the acts of its various employees. The charges against the pharmacist/owner were dismissed after a short period of pre-trial probation, preserving his ability to continue practicing his profession. Dwyer & Collora, LLP has negotiated similar dispositions in a number of other cases, enabling an individual owner’s ability to practice his/her trade was preserved through the tender of a corporate guilty plea.
- Representing top managers of one of the state's largest mental health clinics during the course of an ongoing grand jury investigation into allegations of billing for services not rendered and submitting claims to Medicaid for services rendered by a non-program provider. Following an internal investigation, the lawyers successfully persuaded the Medicaid Fraud Control Unit of the Office of the Attorney General to discontinue the grand jury proceedings without seeking an indictment, and to settle all allegations through a civil settlement with the clinic, without any admission of liability by any party.
- Representing a chiropractor who was indicted for insurance fraud for allegedly failing to disclose to a motor vehicle insurer that his patient had been involved in a previous motor vehicle accident. The Insurance Fraud Division of the Office of the Attorney General entered a nolle pros after Dwyer & Collora, LLP filed a substantial motion to dismiss alleging insufficient evidence before the grand jury and grand jury impairment, and raised a constitutional challenge to the inter-relationship between the privately-funded Insurance Fraud Bureau and the Attorney General's Office.
- Dwyer & Collora, LLP has successfully represented numerous other health care providers, including durable medical equipment suppliers, ambulance services, dentists, psychiatrists, nursing homes, and podiatrists in criminal investigations by the Medicaid Fraud Control Unit of the Office of the Attorney General.
These cases illustrate why we are known as wise warriors. The attorneys of Dwyer & Collora, LLP fight to win in court, and are respected and feared for their prowess there. But first, we always try to achieve a favorable outcome for our clients without the expense and time of a trial. By often resolving cases like these through civil settlements, with no admission of liability, we work to prevent collateral consequences such as program exclusion or disciplinary action by professional licensing authorities.
Attorneys at Dwyer & Collora, LLP have frequently represented licensed professionals charged with possession of controlled substances, issuing unauthorized prescriptions, and self-prescribing. By working jointly with the Drug Enforcement Agency, State Police, and licensing authorities, the firm's attorneys have frequently been able to guide clients to substance abuse programs and peer counseling to assist in their recovery, to resolve criminal charges without a conviction, and to negotiate probation agreements with licensing authorities which permit them to continue practicing.
Top
Medicare/Medicaid Audits
The regulations and policies governing Medicare and Medicaid providers can be exhaustive and arcane. Few providers survive a program audit - whether by the local Medicare carrier, the Office of Inspector General, the Division of Medical Assistance or its contractors - without a claim of some overpayments. Requested records are subjected to rigorous review and both Medicare and Medicaid steadfastly adhere to the policy that failure to follow rules and regulations to the very letter, and lack of complete documentation, are grounds to deny all reimbursement for the service. Both programs employ an extrapolation theory, where a mistake uncovered in a small number of claims can quickly catapult into a substantial portion of the provider's total reimbursement revenue. Dwyer & Collora, LLP's attorneys have been particularly effective in this arena, limiting providers' financial exposure, proposing plans of correction as an alternative to harsh sanctions, and persuading the auditing agency not to refer providers to law enforcement agencies for further investigation.
Top