Articles Posted in Criminal Defense

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wheelchair-1430696One Medicare policy that has seen a boom in litigation, both civil and criminal, in the past few years relates to services being provided to allegedly homebound Medicare beneficiaries.  Homebound status is defined in the Medicare Benefit Policy Manual and states that for a patient to be eligible to receive home health services under Medicare, a physician must certify that the patient is confined to the home.  To be considered homebound, the Medicare beneficiary must be unable to leave the home without the assistance of a supporting device, special transportation, or the assistance of another person.  A person could also be considered homebound, if leaving the home is contraindicated.  In addition to the previous conditions, there must also be a considerable and taxing effort to leave the home.  In other words, just because someone uses a cane does not mean that the person is homebound for purposes of Medicare home health services.

Although, there can be some differences of opinion as to whether there is an inability to leave the home to such an extent that it would take a considerable and taxing effort, a person who leaves their home to run errands or to engage in social activities will unlikely be considered homebound.

Below is the definition from the Medicare Policy Manual.  If you have further questions, contact me by clicking here.  Violations of this requirement can result in civil or criminal prosecutions, or recoupments among other possibilities.  If you would like information about defending a Medicare Audit, or investigation click here. If you are aware of a provider falsely certifying Medicare beneficiaries as homebound, you may be able to file a claim and receive an award under the False Claims Act.  For more information about the False Claims Act, click here.

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man-with-a-megaphone-1-1378633-sChicago – Not surprisingly in light of the recent charges and convictions of home health agencies (HHA) and related entities in the Chicago area and throughout the country, the Department of Health and Human Service, Office of Inspector General, (HHS-OIG) issued an Alert reporting that the OIG found home health services susceptible to fraud.

 

HHAs have been accused of violating the anti-kickback statute by paying for referrals, while doctors have been accused of receiving kickbacks for these referrals. The government may consider any payment arrangement a kickback if the payment is not fair and reasonable.  Another area of concern for the HHS-OIG was the billing of home health services for patients who were not homebound, as defined in the regulations, billing for care plan oversight services that were not performed, and upcoding patient encounters.  One key factor found by the HHS-OIG was that doctors participating in these schemes were usually not the Medicare beneficiary’s primary care physician.

 

If you have information about fraud, waste, or abuse of a government program, including Medicare/Medicaid click here, or if you need representation as a result of a government audit or investigation, click here.  Mike Rosenblat, at 847-480-2390, or mike@rosenblatlaw.com

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Chicago Crimlaw-education-series-3-1467430inal Defense Lawyer Michael Rosenblat wins fourth not guilty verdict in a row.

Mr. Rosenblat’s most recent not guilty came on May 13, 2016 when the judge found the defendant not guilty of domestic battery.  The alleged victim claimed that the defendant pushed a heavy object into her knocking her to the ground.  In order to prove its case, the Cook County Assistant State’s Attorney called two witnesses to testify, the alleged victim and a Chicago Police Officer. Mr. Rosenblat’s cross-examination of the complaining witnesses exposed the fact that she could not see who caused the object to be pushed into her.  The cross-examination also uncovered many inconsistencies in her testimony that defied common sense.  The defendant was found not guilty without the defense calling a single witness.

On March 30, 2016, Mr. Rosenblat’s client was found not guilty of aggravated robbery, a charge that carried a maximum sentence of up 30 years in prison.    The complaining witness added facts in his testimony, which he never told to the police even though he was interviewed multiple times.  Mr. Rosenblat’s cross-examination of the victim’s prior inconsistent statements showed that he was not credible. Mr. Rosenblat called several witnesses in the defense case in chief, including the defendant.  Defendant was found not guilty of all charges.

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Twenty dollar bills isolated against white background.

Twenty dollar bills isolated against white background.

The Defendant Sila Luis was charged with stealing over $45 million by allegedly paying kickbacks and conspiring to commit fraud, all related to health care.  Luis wanted to hire her own attorney, but the government froze all of her funds, even those funds unrelated to the crimes she was accused of committing.  Federal law allows the government to freeze certain assets of a defendant accused of health care fraud.  The assets that the government can freeze can be any property obtained as a result of the crime, property traceable to the crime, or substitute property.  Here the government sought to freeze substitute property, property that had no relationship to the crime.  Luis v. United States.

The district court and the Eleventh Circuit Court of Appeals both agreed with the government that substitute property could be frozen, even though Luis sought to have the property released to pay her attorneys.  Fortunately, the Supreme Court reversed and held that the freezing of untainted assets needed to retain counsel of defendant’s choice violated her Sixth Amendment right to counsel.

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dog Supreme Court of Illinois holds that use of a drug-detection dog violated Fourth Amendment in People v. Burns.

On January 10, 1013 at 3:20 am, the police along with a drug-detection dog went into defendant’s apartment building.  This officer and his dog got into the building when a tenant let in a fellow officer, who was undercover.  The drug dog alerted to defendant’s apartment door and a search warrant was obtained.  The apartment was searched, drugs were found, and defendant was charged.

The Illinois Supreme Court first looked at the United States Supreme Court case of Florida v. Jardines, in which the police took a drug dog to the front porch of the defendant’s home and sniffed the door.  The Supreme Court of the United States found that this was a search for Fourth Amendment purposes. The US Supreme Court went on to state that the areas surrounding and associated with the home are considered part of the home.

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Chicago – In United States v. Pu, 2016 U.S. App. LEXIS 3224 (7th Circuit February 24, 2016), the court addressed the district court’s loss calculation and restitution order.  Pu who worked for two companies, one of which was the Citadel in Chicago, a hedge fund, was indicted for and pleaded guilty to unlawful possession of a trade secret from Company A and unlawful transmission of a trade secret that belonged to the Citadel.  The district court found that Pu intended to cause a loss of approximately $12 million, and was ordered to pay restitution of $750,000.  He was sentenced to 36 months in prison. The $12 million intended loss calculation increased his sentencing guidelines calculation by a whopping twenty-level increase, even though there was no actual loss.  While the restitution order was based on a letter supplied to the court by the Citadel that included costs associated with an internal forensic analysis and an internal investigation.

The information that Pu was accused of stealing was used to conduct stock trades.  However, Pu use of the data resulted in him losing about $40,000.

For purposes of the sentencing guidelines, the loss is the monetary harm that was intended from the offense, or if the court cannot determine the amount of loss it may use the gain that resulted from the offense.  In the case of a trade secret, like in this case, the loss amount could be the cost of developing the information or the reduced value of the information as a result of the offense. However, the sentencing guidelines do not require any loss calculation greater than zero and the court called a loss amount “bonus punishment points.”

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The Department of Justice wasted no time in showing that its new policy of going after individuals, not just companies, engaged in fraudulent conduct was for real.  (See, Blog post DOJ to Focus on Individual Accountability for Corporate Fraud.) Late last week, October 29, 2015, the government charged the former president of a subsidiary of Warner Chilcott PLC, a pharmaceutical division, with conspiracy to violate the Anti-Kickback Statute.  This is an important step in holding individuals accountable for the conduct of business units for which they are responsible.

For too long, companies could engage in fraudulent conduct only to pay a hefty fine, with the individuals responsible for the fraud suffering little or no consequences and often reaping the benefits of their unlawful conduct with increased pay and bonuses.  If a company faced a significant fine, or debarment from a government program, which impacted the company’s earnings, the only people likely to suffer were its shareholders.  Investor Bill Ackman said that drug companies get sanctioned all the time, but that does not mean that they are bad investments.  According to Ackman, the $390 million Novartis settlement was just the cost of doing business.   (See, Bloomberg.)

Engaging in fraud should never be a conscious business decision.  Holding individuals responsible will hopefully, deter this type of conduct.

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DOJ to Focus on Individual Accountability for Corporate Fraud

The U.S. Department of Justice announces that holding individuals accountable for corporate fraud is a top priority. In a seven-page memorandum, released September 9, 2015, Deputy Attorney General Sally Quillian Yates, announced new guidelines focusing on individual accountability for corporate misdeeds.

The Memorandum states that focusing on individuals is one of the most effective ways to deter corporate wrongdoing. Holding individuals accountable will deter further wrongdoing and encourage a corporation to change its culture and behavior, it will also further promote the public’s confidence in the justice system. Continue reading

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Chicago – As most of us know by now, eyewitness identifications are notoriously bad. Mistaken identifications by eyewitnesses account for the vast majority, roughly 85%, of wrongful convictions, according to some reports. Eyewitness misidentification is considered the single greatest cause of wrongful convictions. The State of Illinois alone has in fact released 21 individuals erroneously convicted and sentenced to death since 1993.

As the United States Supreme Court has long recognized, “[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.” United States v. Wade.

Well Illinois is moving in the right direction to improve eyewitness identifications. Illinois’ new lineup procedure statute, 725 ILCS 5/107A-2, encourages many practices, unless not practical, thereby giving the police a way out if not followed. Continue reading

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The always crowd-pleasing session “60 Sites in 60 Minutes” closed the ABA Techshow Saturday as speakers Britt Lorish, Eric Mazzone, Lincoln Mead and Mark Rosch shared their top websites for lawyers. A few of our favorite sites include: • Viivo and Sookasa: If you share and store documents in the cloud-based storage system Dropbox, then you’ll want to first encrypt sensitive data using either Viivo (free) or Sookasa (free and paid). • The Wirecutter: Need help finding the best tech gadget for you? This website offers helpful shopping tips and reviews on tech products for your practice, home and self. • CopyPasteCharacter: All of the odd characters you may ever need to type into an email, tweet or mobile document displayed in a single page. Just click, copy and paste. • Cloudsurfing: Discover and evaluate…

via Websites lawyers love (and you will too) – ABA Journal.