Editor’s note: This is the last of a two-part series on this issue.  Part one of this article appeared at page 5 of the Criminal Defense Newsletter, Volume 39, Issue 10 (July, 2016).

Plea Negotiations and Sentencing

Before considering a plea for a client in the Health Care industry, the attorney should discuss exclusion and other Collateral Consequences with a health law attorney prior to accepting a plea.  Often, a criminal defense attorney will focus on minimizing jail time and fines at the expense of minimizing a client’s exposure to a conviction that could result in OIG exclusion, licensing sanctions, or other Collateral Consequences that could be career ending.  The Collateral Consequences of a criminal conviction should play a vital role in the decision to plead guilty, testify, or seek substance abuse treatment, and it should play a vital role in charge bargaining.  Often, an agreeable Prosecutor will permit an HCP to plead to a charge that will prevent or minimize OIG exclusion, state licensing action, and other Collateral Consequences.

In addition, criminal defense attorneys should be very careful about what is contained in a sentencing memorandum or what is said by the HCP client at sentencing.  A HCP will ultimately face a parallel administrative proceeding with the Department of Licensing and Regulatory Affairs (LARA) if the conviction is either (a) a felony or high misdemeanor, (b) reasonably related to and/or adversely affecting the practice of medicine, (c) a conviction related to substance use or abuse, or (d) any other enumerated offense under MCL 333.16221.  Given LARA’s broad interpretation of MCL 333.16221, most convictions are arguably subject to licensing sanctions.  Thus, statements made by your client will likely be admitted against him/her in a parallel administrative proceeding.

National Practitioner’s Data Bank

Any adverse licensing, credentialing, or administrative (DEA, CMS, etc.) action taken against a HCP must be reported to the National Practitioner’s Data Bank (NPDB) within 15 days.¹  Negative information on the NPDB has the ability to ruin a HCP’s career.  Often, a HCP with even one negative report can find it difficult to gain or maintain staff privileges, become excluded from billing large insurance companies and Medicare, and face subsequent State licensing actions.  HCPs must exhaust every remedy to prevent damaging information from being disseminated to the NPDB.

Reports to the National Practitioner Data Bank are permanent, but may be appealed through a dispute process.  The subject of the report may also file a statement explaining the report.  Initially, NPDB disputes must be taken up with the reporting entity because the NPDB will not handle disputes regarding the substance of a NPDB report.  If the reporting entity fails to change the report after a request, the HCP may request review of the report by the Secretary of HHS.  The Secretary reviews reports only for accuracy of the factual information and to ensure that the information was required to be reported.

The NPDB dispute review process is highly technical and requires the knowledge and skill of an experienced health law attorney.  HCPs should be cautioned from filing disputes on their own with the Secretary of HHS because after an initial dispute is filed, the subject is unlikely to be granted a second review.

Collateral Consequences are Vast and Numerous

In addition to the issues outlined above, there are a myriad of other Collateral Consequences that a HCP must be concerned with, such as DEA registration sanctions, civil monetary penalties, Medicare and Medicaid enrollment, Health Insurance Carrier conditions of participation issues, Medicare Audits, and others.  Depending on the type of conviction, HCPs may find themselves in numerous other parallel administrative proceedings to protect their livelihoods.  Unfortunately, the vast majority of HCPs are not aware of the reporting requirements and deadlines imposed by the various State and Federal statutes that they must adhere to.  As a result, a HCP charged with a crime may voluntarily surrender his/her DEA registration, fail to appeal a Medicare Exclusion, default on an Administrative Complaint, or fail to report a conviction, and therefore lose board certification all because they were ill equipped with proper advice regarding their duties as a HCP.

Conclusion

As should now be clear, representing doctors and other HCPs is both challenging and complicated, often requiring experience and extensive knowledge.  For a HCP, a misdemeanor or felony conviction often carries with it the potential of many dire consequences.  A physician may find herself/himself charged with defending numerous parallel administrative/regulatory proceedings arising out of a single criminal conviction (DEA, State Licensing Board, OIG exclusion, and board certification).  Consequently, it is a good idea to consult with an experienced health law attorney into the defense team when representing HCPs to ensure that both the client and the attorney take the appropriate steps to mitigate the damaging impact of a criminal conviction.

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.

Endnote

1. See, 45 CFR Part 60 and 42 U.S.C. 11101 et. seq.

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