Introduction

Health Care is a highly regulated industry and providing Health Care is a highly stressful profession.  Long hours, demanding patients, empathy overload, and ever changing compliance regulations creates a volatile recipe for potential drug and alcohol abuse.  In fact, various studies suggest that an estimated one in 10 practitioners will fall into drug or alcohol abuse at some point in their lives.  Many of these Health Care Practitioners (“HCPs”) will find themselves in legal trouble, either as a direct consequence of their abuse, or because their abuse has caused them to otherwise run afoul of State or Federal Laws.

When a HCP’s legal troubles include the accusation of criminal behavior, their very livelihood may be on the line.  Not only do HCPs face the statutorily defined criminal sanctions, such as fines, costs, restitution and potential jail time, they also face a wide variety of potential Collateral Consequences.  In the long run, these consequences can be far more problematic than those set forth in the statute.  In fact, Chief Justice Earl Warren has written that a felony conviction “imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities.”¹  While Justice Warren specifically mentions felony convictions, relatively low level misdemeanor convictions, such as those arising out of intoxicated driving, drug possession or diversion, and those involving theft or false statements, can also wreak havoc on a HCP’s career.

Much has been written about Collateral Consequences, but the authors know of no resource specifically addressing those applicable to HCPs.  One general source estimates that all combined, there are as many as 44,000 possible Collateral Consequences that might be imposed.  This number is so large in part because actually, there are three different categories of Collateral Consequences that might arise out of a HCP’s criminal conviction.  Consequently, the ethical² and zealous criminal representation of an HCP requires the attorney to learn of and advise the client about the additional potential Collateral Consequences applicable to the client, or to seek out the advice of a health law attorney.³  This article’s purpose is to help both the lawyer and the HCP client understand how a criminal conviction has a disproportionately punitive impact on the Health Care Professional and to further understand how these issues may impact the defense of the case.

Three Categories of Collateral Consequences Specific to a HCP

There are essentially three categories of Collateral Consequences related to HCPs.  These include legal penalties (1) that are automatically imposed by operation of law (such as mandatory Office of Inspector General (“OIG”) exclusion), (2) that are authorized by law yet not required (such as OIG permissive exclusion), and (3) that are imposed not because they are authorized by law, but more so because a publicly available criminal record can serve as a basis for informal disqualification.  This might occur when applying for credentialing privileges, seeking advancement, or even when applying for or renewal of board certification.

The internet has made access to information so easy today that the informal disqualification arising from a misdemeanor or felony conviction is a bigger problem now than ever before.  Making matters worse, many HCP licensing boards are also required by law to publish a list of all individuals subjected to discipline under the act, and this list is also available online.  This list is provided to agencies at both the Federal and State level.  These agencies include the National Practitioner Data Bank, the Health Integrity Protection Data Bank, and the fiscal authorities for Federal Health Care programs (i.e., CMS).  Also, the names of all disciplined individuals are available upon request and are even posted on the various departments’ websites and/or directly on the site maintained by the State of Michigan.  These reports usually include the name and licensing of the HCP, a brief description of the reason for the discipline, and the actual disciplinary action taken by the licensing board.

Who is a Health Care Professional?

The punctilious attorney will be well served by reviewing the law even as it pertains to a seemingly common and non-legal term like “Health Care Professional.”  This is especially true because the term is likely different from what might be expected.  For example, if the client is a physician (M.D. or D.O.), a dentist, or even a pharmacist, then the attorney will probably correctly guess that the client is included in Michigan’s definition of “Health Care Professional, (HCP).⁴”  However, it is not always so easy to tell.  What if the client is an acupuncturist, athletic trainer, therapist, nursing home administrator, or social worker?⁵  The attorney may be surprised to learn that these too are covered by the applicable statute.  This is because the terms “health occupation”⁶ and “health profession”⁷ are broadly defined in Michigan’s Public Health Code^..  If the client provides any service that could conceivably be “Health Care,” then the attorney should be sure to review the statute to determine if the client is actually a HCP.

While it is important to have a general understanding of the breadth of all possible Collateral Consequences that might be imposed on a HCP, the focus here is primarily on Medicare Exclusion, Administrative Complaints, and credentialing matters.

Medicare Exclusion

Of all of the potential Collateral Consequences, Medicare Exclusion is by far the most important Collateral Consequence to mitigate, as a long term Medicare Exclusion can be career ending.  Nearly all Health Care entities bill Federal Health Care programs (e.g. Medicare, Medicaid, Tricare) for services, and an individual who is excluded will not be able to gain or maintain employment with a Health Care entity that bills such programs.  Certain convictions result in mandatory exclusion for a minimum of five years, such as convictions related to Medicare or Medicaid Fraud, convictions for patient abuse or neglect, felony convictions related to fraud or theft or embezzlement in connection with the delivery of a Health Care item or service, and felony convictions related to controlled substances.⁸  In addition to mandatory exclusions, the OIG has discretion to exclude individuals if they are convicted of certain offenses, including⁹ misdemeanor convictions related to Health Care Fraud,¹⁰ convictions related to fraud in non-health care programs operated or financed by any Federal or State or local Government agency,¹¹ convictions related to obstruction of a Health Care Fraud investigation, and misdemeanor convictions related to controlled substances.  Permissive exclusions will generally last for three years unless aggravating or mitigating factors are present.¹²  If the HCP client is subject to exclusion, he or she will receive notification from the OIG that the individual is excluded, and the attorney will have the ability to appeal the exclusion within 60 days.¹³  The appeal must include a statement regarding the specific issues the individual takes with the Medicare Exclusion, the basis for the disagreement with the OIG’s decision, reasons why the proposed length of exclusion should be modified, and reasons why the health or safety of Medicare beneficiaries does not warrant exclusion.¹⁴  The case will then be docketed for a hearing before an Administrative Law Judge.  If the client is ultimately excluded, reinstatement is not automatic – the client must re-apply within 90 days of the expiration of the exclusion, and a decision from the OIG could take up to six months or longer.  Appealing an exclusion is highly technical and requires the knowledge and skill of an experienced health law attorney.

Licensing Sanctions

Once a HCP pleads guilty or is convicted, the HCP will have 30 days to report the conviction.¹⁵  LARA will analyze the report to determine if a sanction is applicable under MCL 333.16221.  If the conviction indicates that the licensee is a threat to the public health safety or welfare, a summary suspension may be authorized immediately, suspending the HCP from practice.¹⁶  In addition, the Disciplinary Subcommittee will authorize an Administrative Complaint against the HCP, which will start the formal administrative procedures under Section 92 of the Administrative Procedures Act.¹⁷  The HCP must respond to the Administrative Complaint within 30 days and request a compliance conference, a formal hearing, or both (which is typical).  A compliance conference is an informal meeting between a LARA board member, the HCP, and his/her attorney; this is similar to a criminal pre-trial where a potential resolution is discussed.  If a suitable resolution is not reached, the case will proceed to a formal administrative hearing before an Administrative Law Judge (“ALJ”).

Sanctions can be severe and may include license revocation, suspension, fine, probation, reprimand, etc.¹⁸

Credentialing

Nearly all Health Care facilities require HCPs to go through a credentialing process to ensure they are qualified to work at that particular facility.  Credentialing is governed by an amalgamation of Federal and State Laws, including the Medicare conditions of participation.¹⁹  Generally, as part of their employment contract or medical staff bylaws, HCPs are required to report whether they have been charged or convicted of any offense or are subject to discipline by any State licensing body.  This requirement is generally a continuing responsibility to report, triggering an obligation to report a charge and/or a conviction within a certain period of time.  Failure to report a charge or a conviction can result in disciplinary action pursuant to the medical staff bylaws.

In addition to a HCP’s employer, the HCP may also have a duty to report a charge or conviction to their certifying body if they maintain board certification in a specialty.  For instance, a physician convicted of a crime who is also a member of the American Board of Family Medicine has a duty to report the conviction.  When representing a HCP, it is imperative that the professional is properly advised regarding their duty to report a charge, conviction, or adverse licensing/administrative action to their credentialing body.  The credentialing dispute process is highly technical and requires the knowledge and skill of an experienced health law attorney.

by Patrick T. Barone and Ronald W. Chapman, II

Patrick T. Barone is the founding partner at Barone Defense Firm.  With offices in Birmingham and Grand Rapids, the Firm exclusively handles DUI cases, often representing the accused Health Care Professionals.  Since 2009, the Firm been included in US News & World Report’s America’s Best Law Firms.  Mr. Barone has an “AV” rating from Martindale-Hubbell, is rated “Seriously Outstanding” by Super Lawyers, and “Outstanding/10.0” by AVVO.  Find him on the web: www.BaroneDefenseFirm.com.

Ronald W. Chapman II is a Criminal Defense and Health Law attorney specializing in the defense of Health Care Professionals in criminal and licensing proceedings.  Ron primarily represents Health Care Professionals in Medicare Fraud and Drug Diversion cases, and related administrative proceedings.  Ron is an L.L.M. candidate in Health Law at Loyola Law School and was a former Prosecutor and Defense attorney for the U.S. Marine Corps.  www.Chapmanlawgroup.com.

Endnotes

1.  See, Parker v. Ellis, 362 U.S. 574, 593-94 (1960) (Warren, CJ, Black, Douglas & Brennan, JJ, dissenting).

2.  See, e.g., Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

3.  MCL§  333.16221

4.  MCL § 333.16101, et. seq.

5.  MCL 333.16101, et. seq.

6.  MCL § 333.16101(1)

7.  MCL § 333.16101(2)

8.  42 C.F.R. §1001.101

9.  42 C.F.R. § 1001.201

10.  42 C.F.R. § 1001.201(a)(1)

11.  42 C.F.R. 1001.201(a)(2)

12.  42 C.F.R. 1001.201(b)

13.  42 C.F.R. 402.214

14.  Id.

15.  MCL 333.16222(3)

16.  MCL 333.16233(5)

17.  MCL 24.201 et. seq.

18.  Sanctions more fully detailed in MCL 111.16226

19.  42 C.F.R. 482.22

Editor’s note:  Part Two will appear in next month’s newsletter.

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