Medicare Fraud In Alabama May 3, 2012
Posted by jefhenninger in News.Tags: Fraud, Insurance Fraud, Medicaid fraud
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A federal grand jury indictment accuses, Dr. Dinana K. McCutcheon of 96 counts of medicare fraud, where the doctor allegedly submitted bills to insurance providers and medicare for up to $1.3 million in fraudulent claims.
New York State Leads Medicaid Fraud Cases In The US March 29, 2012
Posted by jefhenninger in News.Tags: Fraud, Insurance Fraud, Medicaid fraud
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Annual data shows that the state of new York is leading the pack when it comes to Medicaid fraud and lawsuits. The data comes from the HHS Office of the Inspector General.
Co-Owner of Defunct Mercer County Mental Health Clinic Pleads Guilty to Medicaid Fraud January 27, 2010
Posted by jefhenninger in News.Tags: Medicaid fraud
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Acting Attorney General Paula T. Dow and Division of Criminal Justice Director Stephen J. Taylor announced that a co-owner of a Trenton mental health clinic pleaded guilty today for his role in a conspiracy to fraudulently over-bill the Medicaid program by more than $160,000.
According to Acting Insurance Fraud Prosecutor Riza Dagli, Osvaldo Morales Sr., 61, of Bronx, N.Y., a co-owner of the now-defunct Chambers Mental Health Clinic LLC, pleaded guilty to third-degree Medicaid fraud before Superior Court Judge Edward M. Neafsey in Mercer County. The charge was contained in a Nov. 13, 2007 state grand jury indictment. The state recommended that Morales serve a probationary sentence.
Morales’s co-defendants – Pedro Acosta, 64, of Queens, N.Y., a co-owner of Chambers Mental Health Clinic LLC and Arnold Jacques, M.D., 60, of Jackson, the former medical director of the clinic, a medical doctor who practices as a psychiatrist – were also charged in the Nov. 13, 2007 state grand jury indictment. Acosta pleaded guilty to second-degree health care claims fraud and is awaiting sentencing. The case against Jacques is pending. A co-owner of the clinic, Bernardo Estambul, 61, of New York, N.Y., pleaded guilty to an accusation charging him with Medicaid fraud. Estambul was sentenced to three years probation and ordered to pay $10,044 in fines and restitution. Estambul was also barred from participating in the Medicaid program for five years.
In pleading guilty, Morales, who operated Chambers Mental Health Clinic in Trenton, admitted that between January 2004 and November 2005, he fraudulently over-billed the Medicaid program.
Morales, Estambul and Acosta caused Medicaid claims to be billed under Jacques’ Medicaid provider number even though Jacques did not provide the counseling services billed. In addition, Morales, Estambul and Acosta billed Medicaid for longer counseling sessions than those that were actually provided. Medicaid pays a higher rate for longer counseling sessions and for counseling services provided by a medical doctor as opposed to counselors who did not have licenses. It is charged that the defendants allegedly fraudulently billed the Medicaid program for more than $160,000 to which they were not entitled.
Major Victory in Medicaid Kickback Case October 21, 2009
Posted by jefhenninger in My Cases.Tags: Medicaid fraud
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While this case is not over yet, today was a major victory for me as the case would have been shut down forever if I lost this appeal. Instead, I won it hands down. Now, it looks like we will have to gear up for a trial in the Spring of next year.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2453-08T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
EDWARD ACQUAYE,
Defendant-Respondent.
________________________________________
Argued October 5, 2009
Before Judges Rodríguez and Yannotti.
On appeal from an interlocutory order of the
Superior Court of New Jersey, Law Division,
Middlesex County, Indictment No. 06-01-
00143.
Lisa Sarnoff Gochman, Deputy Attorney
General, argued the cause for appellant
(Anne Milgram, Attorney General, attorney;
Alvina Seto, Deputy Attorney General, of
counsel and on the brief).
Jef Henninger, argued the cause for
respondent (Mr. Henninger, on the brief).
PER CURIAM
We granted leave to the State to appeal from the
interlocutory order granting defendant Edward Acquaye’s petition
October 21, 2009
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A-2453-08T4
for post-conviction relief (PCR), vacating defendant’s
conviction based on a guilty plea. We affirm.
These are the salient facts. In June 2006, defendant
pleaded guilty to third degree Medicaid fraud, N.J.S.A. 30:4D-
17(c). This charge stemmed from defendant’s acceptance of
kickbacks from Michael Stavitski, the owner of Belmar Pharmacy,
in return for defendant steering the prescriptions of all the
residents of his residential healthcare facility, Lincoln Rest
Center in Jamesburg, to Belmar Pharmacy. These prescriptions
were paid by Medicaid pursuant to the New Jersey Medical
Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5.
In exchange, the State agreed to recommend a non-custodial term
conditioned on the payment of $1500 in restitution and a $1000
fine and to recommend “that defendant does not lose [his]
license to provide [nursing/rest home] care.”
At the plea hearing, defendant acknowledged reviewing and
understanding the plea form, which he signed and initialed at
every page. Before accepting the plea, the judge informed
defendant that the State’s promise to recommend that he be able
to retain his New Jersey State license to operate Lincoln Rest
Center was not guaranteed because the licensing authorities were
independent agencies and not bound by the State’s
recommendation. The judge said, “I don’t think anyone can
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A-2453-08T4
guarantee or promise you[] that you’re not going to lose your
license. You understand that[,] right?” Defendant replied,
“Yes.” Defendant then gave an adequate factual basis for his
guilty plea. The judge accepted the plea. Instead of imposing
a probationary term, the judge suspended imposition of the
sentence for five years with the condition that defendant pay
$1500 in restitution and a $1000 fine.
Three weeks after this disposition, the United States
Department of Health and Human Services, Office of Inspector
General (OIG), advised defendant that, as a result of this
conviction, he would be excluded from participation in all
federally-funded healthcare programs for a period of five years
pursuant to 42 U.S.C. § 1320a-7(a). The letter informed
defendant that he had thirty days from the date of the letter to
“submit any information and supporting documentation [he]
want[ed] the OIG to consider before it [made] a final
determination regarding [his] exclusion.” A subsequent letter
informed defendant that he was excluded from participating in
any healthcare programming which receives federal funding.
Defendant was advised of his right to a hearing to appeal his
exclusion. Defendant did not request a hearing.
The OIG also notified the New Jersey Division of Medical
Assistance and Health Services (Division) of this exclusion.
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A-2453-08T4
The Division then notified defendant that, as a consequence of
OIG’s decision, he was excluded from participating in any
healthcare program receiving federal funding for five years.
Defendant and his wife, Freda Acquaye, a fifty percent owner and
Chief Operating Officer of Lincoln Rest Center, decided to
voluntarily close the facility and surrender its license.
Defendant filed this PCR petition, arguing that the State
and the court failed to inform him of his automatic exclusion
from participating in Medicaid programming and all federallyfunded
healthcare programs pursuant to 42 U.S.C. § 1320a-7(a).
Defendant asked the court to vacate his plea on the ground that
the plea was unknowing and involuntary as a result of the
State’s failure to inform him of the automatic exclusion.
The same judge who accepted the plea and sentenced
defendant heard oral arguments. The judge determined that there
was not a meeting of the minds between defendant and the State
regarding the terms of the plea agreement. The judge ruled
preliminarily that failure to inform defendant that he would not
be able to participate in federally-funded healthcare programs
would render defendant’s previous decision to enter the plea an
uninformed one. The judge gave the parties a September 19, 2008
deadline to resolve the matter or, in the alternative, to
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A-2453-08T4
proceed with an evidentiary hearing to determine what the
understanding was between the parties.
On October 16, 2008, the judge held an evidentiary hearing.
At this hearing, both defendant and the Deputy Attorney General
who appeared at the plea hearing testified. In a supplemental
brief, another Deputy Attorney General certified that the State
contacted OIG and spoke to Joanne Francis, an OIG
representative, to inquire if defendant had requested any
appeals or hearings after receiving the letter of exclusion.
Francis replied that defendant filed a response to the OIG
letter, but made no request for a hearing.
The judge granted defendant’s PCR petition, finding that
defendant’s guilty plea was not entered knowingly, voluntarily,
or intelligently because the State’s promise to recommend that
defendant not lose his New Jersey license to operate a rest home
implied, according to the judge, that defendant had a chance of
continuing to operate Lincoln Rest Center. However, because
defendant’s debarment from federally-funded healthcare programs
was a mandatory result of the guilty plea, continued operation
of the business was “practically impossible.” Finally, the
judge reasoned that “the mandatory nature of said debarment is
inconsistent with the [plea recommendation.]”
On appeal, the State contends:
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A-2453-08T4
THE TRIAL COURT ERRED IN FINDING THAT THE
STATE WAS REQUIRED TO INFORM DEFENDANT OF
THE COLLATERAL ISSUE OF HIS FEDERAL
EXCLUSION FROM PARTICIPATING IN FEDERALLY
FUNDED HEALTHCARE PROGRAMMING RENDERING HIS
PLEA INVOLVEMENT AND UNKNOWING.
In a supplemental letter brief, the State contends that:
THE TRIAL COURT ERRED IN GRANTING [PCR];
DEFENDANT’S GUILTY PLEA SHOULD STAND BECAUSE
HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL
WHEN HIS ATTORNEY INFORMED HIM ABOUT THE
PENAL CONSEQUENCES OF HIS GUILTY PLEA AND
DEFENDANT WAS NOT MISINFORMED REGARDING ANY
PENAL CONSEQUENCE.
We disagree with the State’s arguments and affirm.
We begin our analysis with a restatement of governing
principles. A defendant seeking to withdraw a plea after
sentencing, pursuant to Rule 3:21-1, must show that he or she is
prejudiced by enforcement of the agreement, i.e., that knowledge
of the consequences would have made a difference in his or her
decision to plead. State v. Johnson, 182 N.J. 232, 241-42
(2005); State v. McQuaid, 147 N.J. 464, 495-96 (1997); State v.
Kiett, 121 N.J. 483, 490 (1990); State v. Howard, 110 N.J. 113,
123 (1988).
It is fundamental to the practice of plea bargaining that
the guilty plea must be made voluntarily, knowingly, and
intelligently. Id. at 122 (citing State v. Taylor, 80 N.J. 353,
362 (1979)). For that reason, in accepting a plea of guilty,
the trial court should question defendant under oath to
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A-2453-08T4
determine that the plea is made with an understanding of “‘the
nature of the charge and the consequences of the plea.'” State
v. Kovack, 91 N.J. 476, 484 (1982) (quoting R. 3:9-2
awareness of penal consequences may result in the vacating of a
sentence imposed pursuant to a plea agreement. State v.
Johnson, supra, 182 N.J. at 236-37. “The right of the defendant
to be informed of the consequences of his plea, however, extends
only to those consequences that are ‘direct,’ or ‘penal,’ but
not to those that are ‘collateral.'” State v. Howard, supra,
110 N.J. at 122 (citing State v. Heitzman, 209 N.J. Super. 617,
622 (App. Div. 1986), aff’d o.b., 107 N.J. 603 (1987)).
However, these authorities apply to situations where the
defendant is not informed of a consequence.
A defendant also has the right not to be “misinformed . . .
as to a material element of a plea negotiation, which [he] has
relied thereon in entering his plea.” State v. Nichols, 71 N.J.
358, 361 (1976). Defendant’s “reasonable expectations,”
grounded in the terms of the plea agreement, must be fulfilled.
State v. Marzolf, 79 N.J. 167, 183 (1979) (citing State v.
Thomas, 61 N.J. 314, 322 (1972)). Thus, “misinformation about a
collateral consequence may vitiate a guilty plea if the
1). Lack of
1
was added, effective September 1, 2004.
8
The requirement that defendant’s plea colloquy be under oathA-2453-08T4
consequence is a material element of the plea.” State v.
Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citing
State v. Howard, supra, 110 N.J. at 122).
Therefore, in the context of defendant’s misinformation,
the distinction between direct or collateral consequences is not
significant. Rather, the focus is on defendant’s expectation
and the inaccurate information conveyed by the plea agreement.
For that reason, this case does not turn on whether defendant’s
exclusion from participating in federally-funded healthcare
programs is a penal or collateral consequence of the plea.
Clearly, such exclusion is a collateral consequence. See
Manocchio v. Kusserow, 961 F.2d 1539, 1543 (11th Cir. 1992)
(holding that debarment pursuant to 42 U.S.C. § 1302a-7 is
remedial in nature and not punitive).
Here, the judge found that the State’s failure to
accurately inform defendant that his subsequent exclusion from
participation in federally-funded healthcare programs rendered
the guilty plea unknowing and involuntary. We agree.
We emphasize that neither the State nor the trial court
were required to alert defendant to the federal exclusion prior
to the entry of his guilty plea. The primary responsibility to
determine this consequence was on defendant, who anticipated the
possibility of losing his ability to operate Lincoln Rest
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A-2453-08T4
Center. There would not be a reversal here if the State had
simply recommended a non-custodial sentence. However, the State
went further and promised to recommend that defendant’s license
to operate a rest home facility not be suspended. Clearly, the
State had no control over the New Jersey or federal licensing
bodies. But, by making the recommendation that it did, the
State conveyed erroneous information that federal exclusion was
not mandatory. The promise was illusory, and would never be
accepted by the licensing body. Moreover, the minsinformation
went to a consequence which was a material element of the plea
agreement from defendant’s perspective. Not losing the ability
to operate Lincoln Rest Center was defendant’s primary concern.
As stated above, the State’s recommendation had the capacity to
mislead defendant. The disclaimers at the plea hearing did not
resolve this misinformation.
Therefore, we agree with the judge that defendant’s plea
was not a knowing one. The order vacating the conviction is
affirmed and the matter is remanded for trial.
Affirmed.
Clients escape Medicaid Fraud charges in New York September 22, 2009
Posted by tsclaw2209 in My Cases.Tags: Medicaid fraud
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Today was a great day as I worked out another great result for some really nice clients. My clients, a husband and wife, applied for Medicaid in New York a few years ago. Problem was, they indicated that they didn’t own any property when, in fact, they owned property in New Jersey.
About a month or so ago, they received a letter from the New York City Human Resources Administration that indicated that they were the subjects of a Medicaid Fraud investigation. As they already had the deed for the house, it didn’t look good on paper. However, the clients had a good explanation but I knew that words wouldn’t cut it.
Even though my client’s owned the house on paper, their children were the defacto owners of the house as they lived there while the clients lived in New York. The children paid for everything associated with the house and did not pay rent to the parents. In order to make this go as easy as possible, I spent weeks working with the clients to get the documentation necessary to show that all of this was true.
I also spoke to the investigator ahead of time and worked much out with him. As a result, when I showed up for the interview with the clients, everything went really smooth. I was expecting the worse but it was great. The investigators were happy that I had copies of all of the documents for them which they brought to their supervisor.
Once criminal charges were off the table, we worked on a payment plan for the money that they owe since they were not eligible for Medicaid. I worked out a 14 year, no-interest payment plan. In addition, I shaved thousands off of the total amount that they owed. In the settlement agreement, New York State agreed not to prosecute my client or take any other action against them.
It goes without saying that the clients were very, very happy. If you are under investigation for Medicaid fraud in either New York or New Jersey, call me today.
Red Bank, NJ Dentist Marc Weber Charged With Fraud June 15, 2009
Posted by tsclaw2209 in News.Tags: Attorney, Crime, Fraud, health care claims fraud, Lawyer, Medicaid fraud, New Jersey, News, Red Bank, theft by deception, theft of identity
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Marc Weber of Red Bank, a licensed dentist, his office manager, Jennifer Barbers, of Manalapan, and Weber’s dental practice, Whitehouse Dental Office, P.A. (d/b/a Weber Dental Associates), located on Broad Street in Red Bank were charged with second-degree conspiracy and second-degree health care claims fraud, as well as Medicaid fraud, theft by deception, theft by unlawful taking, and theft of identity, all in the third-degree.
There are two sets of allegations here. According to the press release, the first set of charges allege that:
between Jan. 1, 2004, and June 30, 2008, Weber and Barbers, who are now married to each other, stole more than $3,565 from Medicaid for services that were never rendered and/or completed. According to the indictment, Weber and Barbers regularly instructed another employee who handled the billing for the dental practice, to submit claims to Medicaid for pre-approved work prior to the completion of the pre-approved work. Barbers instructed the same employee to submit claims to Medicaid for a patient’s entire treatment plan on the patient’s first office visit, even if the patient did not return to the office to complete the treatment. She also allegedly instructed an employee to bill Medicaid for crowns and dentures on the patient’s initial visit rather than when or if the work was completed.
That part is not too bad from a defense perspective. Clearly there is an issue with an employee who is not charged. Thus, it will be difficult to prove that this was not just a disgrunteled employee acting on her own. Furthermore, the dollar amount is rather low. If this was it, I would not be worried.
The second part of the case is more serious. It alleges that:
Barbers allegedly convinced patients to take out loans for dental procedures using specific loan providers, even when the procedures were covered by insurance. She then allegedly processed the loans without the patients’ authorization, and collected payments from the loan providers even if the patients decided not to have the dental work performed. As a result of Barbers’ alleged actions, the patients were responsible for paying back the loans. According to the indictment, Barbers obtained the identifying information of three patients from the loan applications and assumed the identity of those patients in order to obtain the proceeds of the loans. It is alleged that Weber, Barbers and the dental practice fraudulently collected almost $30,000 from the proceeds of these loans.
This sounds bad, but the good thing is that it was only three people. I am sure there is more to this story. However, everything here is on the line so I hope they have great attorneys. I would want to interview these patients right away. Their testimony will go a long way in determining what happens with the case. If there are other patients that are similarly situated but not part of the case, I would interview them as well.
Press release is here.