Earlier this month, U.S. Attorney General Jeff Sessions announced that the federal government would be implementing a new pilot program designed to target fraud and abuse involving prescription opioid medications. The Department of Justice’s (DOJ) new Opioid Fraud and Abuse Detection Unit will initially target twelve regions around the country, including Central North Carolina.
According to a press release issued by the DOJ:
“[T]he new Opioid Fraud and Abuse Detection Unit will focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to this prescription opioid epidemic. . . . [The DOJ] will fund twelve experienced Assistant United States Attorneys for a three year term to focus solely on investigating and prosecuting health care fraud related to prescription opioids, including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes.”
Federal Health Care Fraud and Opioid Prescriptions
Also according to the press release, the DOJ intends to target two specific forms of prescription drug fraud involving opioid medications: (i) physicians issuing illegal opioid prescriptions for profit, and (ii) pharmacists dispensing opioid medications pursuant to fraudulent prescriptions. The prosecutors on the Opioid Fraud and Abuse Detection Unit will be relying data analytics and working with agents from the Drug Enforcement Agency (DEA), the Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS) and local law enforcement to identify targets for investigation. Healthcare providers and pharmacists found responsible for illegally distributing opioid medications can face severe civil and criminal penalties, including: fines, damages, loss of government program eligibility, and even federal incarceration.
Some of the most-commonly-prescribed opioid medications include:
Factors the Opioid Fraud and Abuse Detection Unit will consider in deciding whether to prosecute providers include: “which physicians are writing opioid prescriptions at a rate that far exceeds their peers; how many of a doctor’s patients died within 60 days of an opioid prescription; the average age of the patients receiving these prescriptions; pharmacies that are dispensing disproportionately large amounts of opioids; and regional hot spots for opioid issues.”
Federal Efforts to Be Supplemented by New North Carolina Prescription Pain Killer Law
In June, North Carolina Governor Roy Cooper signed the Strengthen Opioid Misuse Prevention Act (the “STOP Act”) into law. The STOP Act establishes new limits on opioid prescriptions and enhances the reporting requirements for physicians who prescribe opioids in the state. The law also creates new obligations for pharmacies, hospices and other providers, and imposes civil penalties for certain reporting violations. In addition, physicians can risk losing their medical licenses if they fail to report violations of the new law.
Contact Cheshire Parker Schneider & Bryan, PLLC
The health care fraud and drug crime attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced legal representation for providers facing audits, investigations and prosecution. If your business or practice is being targeted by state or federal law enforcement, call (919) 833-3114 or contact us online to speak with a lawyer in our Raleigh, NC offices today.
Each quarter, the North Carolina State Bar (“NC Bar”) publishes its most-recent disciplinary actions against attorneys licensed in the state. Here is a summary of some of the most noteworthy actions from Spring 2017:
The NC Bar’s Disciplinary Hearing Commission (DHC) disbarred four attorneys during the quarter. Three of the disbarments were based, at least in part, on misappropriation of clients’ entrusted funds. All three of the disbarred attorneys had been in practice for at least 30 years. In one case, the attorney had misappropriated well in excess of $80,000 from multiple clients. In the other two, the misappropriated amounts were smaller, but the attorneys were also found to have mismanaged and misrepresented the handling of their client trust accounts, including intentionally misidentifying the source of trust funds.
In the fourth disbarment action, the attorney consented to resignation of his law license while facing an investigation for sending sexually-suggestive emails and engaging in sexual relations with immigration clients who were “especially vulnerable.”
Ten North Carolina-barred attorneys received suspensions and stayed suspensions from the DHC during the spring. The grounds for suspension included:
- Failing to maintain client communications and participate in the NC Bar’s fee dispute resolution program.
- Failing to perform quarterly trust account reconciliations, failing to return funds mistakenly wired from an unknown source, and improperly disbursing client deposits held in trust.
- Submitting a document bearing a false signature to the NC Bar’s Grievance Committee.
- Failing to communicate with clients and making inaccurate statements to a client about work purportedly performed.
- Failing to adequately supervise the attorney’s assistant (who misappropriated clients’ trust deposits) and adequately monitor the firm’s trust account.
- Practicing law on a suspended license and neglecting a client’s case.
- Engaging in conduct prejudicial to the administration of justice by making “frivolous claims and misleading statements” during the representation of criminal defendants. The misleading statements included falsely telling one Assistant District Attorney (ADA) that another had promised amnesty for crimes committed prior to the subject offense, and “impl[ying] to the court that [the ADA] had agreed not to prosecute [her client]” for earlier offenses.
3. Censures and Reprimands
Six attorneys received censures and/or reprimands during the quarter. The grounds for discipline included making misrepresentations to the court, practicing on a suspended license, failing to take action as appointed appellate counsel for indigent clients, charging excessive fees, failing to communicate with clients, failing to make timely filings on behalf of clients, and failure to timely comply with the Grievance Committee’s requests.
Representation for Attorneys Facing Disciplinary Action in Raleigh, NC
The lawyers in Cheshire Parker Schneider & Bryan, PLLC’s professional license defense practice represent attorneys who are facing disciplinary action by the NC Bar. If you have received a Letter of Notice from the Grievance Committee, we can help you assess your situation and seek to protect your license. To speak with an attorney at our Raleigh, NC offices in confidence, please call (919) 833-3114 or inquire online today.
Cheshire Parker Raleigh Family Law Attorneys named 2017 Top 100 North Carolina Super Lawyers and Rising Star
Family Law Attorneys John Parker and Kimberly Bryan were also named 2017 Top 100 North Carolina Super Lawyers.
CPSB is pleased to announce that Family Law Attorney Amy Britt has been named 2017 North Carolina Rising Star, six years in a row.
Congratulations to this years recipients!
Some noteworthy changes to the professional ethics and conduct rules for Certified Public Accountants (CPAs) in North Carolina went into effect on May 1, 2017. The amended rules include the following:
1. 21 NCAC 08N .0203 Discreditable Conduct Prohibited
Rule .0203 prohibits CPAs from engaging in conduct that is “discreditable to the accounting profession.” Under the revised rule, listed examples of “discreditable conduct” now include:
- acts that reflect adversely on the CPA’s honesty, integrity, trustworthiness, good moral character, or fitness as a CPA;
- stating or implying an ability to improperly influence a governmental agency or official;
- failing to comply with any order issued by the Board;
- failing to fulfill the terms of a peer review engagement contract;
- misrepresentation in reporting CPE credits;
- entering into any settlement or other resolution of a dispute that purports to keep its contents confidential from the Board; or
- failing to participate in a peer review program pursuant to 21 NCAC 08M .0105.
Failure to participate in a peer review program is an addition from the previous version of the rules.
2. 21 NCAC 08N .0208 Reporting Convictions, Judgments, and Disciplinary Actions
Section (c) of Rule .0208 has been revised to clarify the conditions under which a CPA must notify the State Board of certified Public Accountant Examiners (the “Board”) of a settlement with a client or firmer client. The revised language states:
“A CPA shall notify the Board within 30 days of any written settlement in which a client or former client releases the CPA from liability that is grounded upon an allegation of professional negligence; gross negligence; dishonesty; fraud; misrepresentation; incompetence; or violation of any federal, state, or local law, regardless of whether the client or former client has filed a civil suit or criminal charge.”
3. 21 NCAC 08N .0305 Retention of Client Records
The revisions effective May 1 include substantial changes to Rule .0305, which governs the retention of client records. The changes affect CPAs’ obligations with respect to the delivery or return of work product, and also acknowledge that state and federal regulations may impose obligations to deliver work papers to clients even when such obligations are not imposed by the Board. The revisions also clarify that CPAs may charge fees for their time spent in retrieving copies of work papers at a client’s request (in addition to charging any copying costs incurred). CPAs are not required to convert records into electronic format; however, “[i]f the client requests records in a specific format and the records are available in such format within the CPA’s custody and control, the client’s request should be honored.”
Contact the Raleigh CPA License Defense Attorneys at Cheshire Parker
The professional license defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced representation for CPAs facing disciplinary action in North Carolina. To speak with an attorney at our offices in Raleigh, please call (919) 833-3114 or request a consultation online today.
The Stark Law and Anti-Kickback Statute are federal laws that impose civil and criminal penalties for a wide range of practices in the context of providing Medicare and Medicaid-reimbursed health care services. While these statutes are extraordinarily complex, much of their focus is on prohibiting transactions that result in referral fees and other forms of compensation being paid out of federal health care benefit programs. This includes payments made in connection with “self-referrals,” where a physician refers a patient to a health care provider in which he or she owns a financial interest or maintains a financial relationship.
Federal law enforcement and health care agencies such as the Department of Justice (DOJ) and the Department of Health and Human Services’ Office of Inspector General (OIG) have taken a strong stance against Stark Law and Anti-Kickback Statute violations. With the potential for penalties including civil fines, loss of Medicare and Medicaid eligibility, and even federal imprisonment, any health care provider facing an investigation or audit under these statutes must take its situation very seriously. An investigation does not have to lead to a conviction, or even federal charges. Providers accused of paying or receiving unlawful compensation will often have several defenses available.
Safe Harbors and Exceptions in Stark Law and Anti-Kickback Statute Investigations
While the Stark Law and the Anti-Kickback Statute contain broad prohibitions, they both also include numerous safe harbors and exceptions that physicians and other providers can use to insulate themselves from liability. These provisions include (but are not limited to):
- Bona Fide Employment Exception – Under the Stark Law, physicians who are in a “bona fide employment relationship” are entitled make referrals to their employers and receive fair-market-value compensation for their services, provided that their compensation is in no way tied to client referrals.
- Personal Service Contract Exception – Under the Stark Law, physicians can receive compensation through contractual “personal service arrangements,” provided that their compensation is in no way tied to referrals and certain other conditions are satisfied.
- Nominal Non-Monetary Compensation Exception – The Stark Law also includes an exception for nominal non-monetary compensation paid to a physician who provides referrals, once again provided that the compensation and referral relationship are unrelated.
- Anti–Kickback Exceptions – The Anti-Kickback Statute contains an employment exception similar to the Stark Law exception discussed above, and includes various other exceptions that apply to service and prescription drug discounts, payments to purchasing agents, and risk-sharing arrangements.
- Anti–Kickback Safe Harbors – The Anti-Kickback Statute includes “safe harbor” provisions that establish guidelines for lawful compensation relationships. When these guidelines are followed, a payment will not trigger liability even if it otherwise constitutes a violation of the statute. Safe harbors exist for facility and equipment leases, certain types of investments, personal services contracts, practice sales, referral services, discount and group purchasing programs, and a variety of other contractual relationships.
Raleigh Federal Criminal Defense Attorneys for Physicians and Health Care Providers
If your business or practice is facing a federal investigation or health care contractor audit, we can help. Our attorneys bring decades of experience to representing clients accused of federal health care law violations in North Carolina. To get started with a confidential initial consultation, please call (919) 833-3114 or submit our online contact form today.
If you have been arrested for driving while impaired (DWI), understanding your situation is important, and it can also be extremely complicated. In North Carolina, DWI cases are far more complex than most people realize, and both state law and the U.S. Constitution will play critical roles in establishing your defense.
To understand your rights, you first need to learn the basic terminology. Here is a summary of some of the key legal terms that will play a role in your DWI case:
After a DWI arrest in North Carolina, the first court date is called an arraignment. Arraignments happen quickly, usually within a few days of the arrest. At the arraignment, you will appear before a judge who will read the charges against you, and you will have the opportunity to state whether you intend to represent yourself, hire legal counsel or request a court-appointed attorney. You are also entitled to have legal representation at the arraignment, and hiring a lawyer at this early stage can help mitigate any potential consequences of your arrest.
Field Sobriety Tests
Field sobriety tests (FSTs) are physical examinations that police officers perform in order to attempt to discern whether a driver is intoxicated. There are three “standardized” tests that will most often be used: the horizontal gaze nystagmus (HGN) test, the one-leg stand test, and the walk-and-turn test. While you are not legally required to take the FSTs, if you do, your results can be used against you in your DWI case.
Under North Carolina law, all drivers give their “implied consent” to submit to a breath or blood test when the police have reasonable grounds to believe that they have been driving under the influence of alcohol. If you violate the implied consent law (i.e. by refusing to take a Breathalyzer test):
- The prosecution may be able to use your refusal against you in your DWI case, and
- You can face an additional charge (and additional penalties) as a result of your refusal.
Motion to Suppress
In many cases, the prosecution will attempt to introduce evidence that is legally inadmissible. There are several reasons why evidence may be inadmissible, including lack of relevance, undue prejudice and having been obtained in violation of Constitutional standards. When the prosecution attempts to introduce inadmissible evidence, your attorney can seek to keep it out of your case by filing a motion to suppress.
While some DWI cases go all the way through trial, prosecutors and defense attorneys commonly negotiate plea agreements out of court. If a plea agreement is the best option in your case, your attorney will help you understand the consequences of both accepting the plea and going to court so that you can make an informed decision.
Probable cause is the legal standard that applies to DWI arrests. Under the Fourth Amendment to the U.S. Constitution, the police cannot make an arrest in the absence of probable cause. Lack of probable cause is justification to have any evidence obtained after your arrest excluded from your case.
Reasonable suspicion is the legal standard that applies to traffic stops (note that being stopped does not equate to being arrested). Similar to lack of probable cause, lack of reasonable suspicion can be grounds to file a motion to have any subsequently-obtained evidence suppressed at trial.
Speak with a Raleigh DWI Lawyer in Confidence
The criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide aggressive legal representation for individuals facing DWI charges in North Carolina. To speak with an attorney about your case in confidence, call (919) 833-3114 or request a consultation online today.
Whether your goal is to save on expenses or maintain as much personal freedom as possible (or, as is perhaps most common, a combination of both), operating a virtual law office (VLO) has grown into a viable option within the legal profession. These days, more lawyers are spending the majority of their time working from home, having less direct contact with clients, and relying heavily – if not exclusively – on the Internet in all aspects of their practice.
While virtual law offices are subject to the same ethical requirements as more-traditional law firms, practicing in a VLO raises some unique ethical considerations as well. For example:
1. VLOs and UPL
Thanks to the Internet, a home-based solo practitioner can reach a worldwide audience with the click of a button. While this can be a good thing for demonstrating your competence and capabilities (i.e. through blog articles, third-party publications and other forms of content marketing), it also raises some potential concerns about the unauthorized practice of law (UPL).
With regard to issues of UPL, North Carolina’s Rules of Professional Conduct (the “Rules”) not only address attorneys licensed in the state, but also those licensed in other jurisdictions who are targeting in-state residents and businesses. Other states have similar rules as well. As a result, the North Carolina State Bar advised in a 2006 Formal Ethics Opinion that, “a prudent lawyer may want to research other jurisdictions’ restrictions on advertising and cross-border practice to ensure compliance before aggressively marketing and providing legal services via the internet.”
2. Convenience vs. Competence and Conflict Avoidance
Another potential concern for virtual lawyers touches on one of the most-basic rules of ethical practice: providing competent representation to the client. When communications take place over email, in chats and text messages, and through standardized questionnaires and forms, it is possible for both the lawyer’s and the client’s (or prospective client’s) intent to get lost in translation. While operating a virtual practice gives lawyers the freedom to be available 24/7 (or not), it also raises the risk that the quality of the representation will be inherently impaired.
The same issues also raise potential concerns regarding conflict checks. Identifying potential conflicts often requires an in-depth discussion so that the lawyer can gain a clear understanding of the prospect’s business or personal circumstances. In many cases, prospective clients will need to be educated on the issue of conflicts in general as well. Without adequate communication, lawyers may find it difficult to be confident that they are complying with the Rules’ conflict-of-interest requirements.
3. Electronic Records and Confidentiality
While there are now numerous service providers that offer online document storage specifically designed for VLOs and other law firms, the recent Yahoo data breach and other high-profile cases show that data security remains a significant concern. Internet-based law firms must not only make sure that their file storage systems meet the necessary standards, but that their email applications and other communication tools sufficiently protect their clients’ confidential information.
Contact Cheshire Parker Schneider & Bryan, PLLC
Cheshire Parker Schneider & Bryan, PLLC is a law firm with offices in Raleigh, NC that represents attorneys in matters involving ethical issues and professional license defense. If you have questions about establishing a virtual law office, or if you are facing an ethical issue in your practice, call (919) 833-3114 or contact us online for a confidential consultation.
For companies facing qui tam lawsuits in North Carolina, building a sound defense strategy is critical to minimizing the potential for government intervention and financial liability. Qui tam cases involve lawsuits filed by private citizens (called “relators”) on behalf of the government; and, once a suit has been filed, the government has a responsibility to investigate and make a determination as to whether to get involved. By taking an aggressive approach to qui tam defense, companies can often influence this determination, and ideally convince both the government and the relator that further litigation is unwarranted.
Qui Tam Defense: Pre- and Post-Intervention Strategies
While it only takes a basic allegation of fraud under the federal False Claims Act for a relator to initiate a qui tam lawsuit, far more is required – both substantively and procedurally – for the lawsuit to move past the initial pleading stages and ultimately lead to a finding of liability. Proving liability under the False Claims Act is a difficult task, and companies accused of government contract fraud, Medicare fraud and other violations will often have numerous defenses available.
Some of the more-common defenses in qui tam litigation under the False Claims Act include:
1. Procedural Deficiencies
As with all types of federal litigation, relators in qui tam actions must comply (and often strictly comply) with the Federal Rules of Civil Procedure (FRCP). Relators should not be given a “pass” on technical and procedural deficiencies, and challenging these deficiencies at the outset of the litigation can often – at the very least – slow down the process and begin raising questions about the relator’s case for the government’s attorneys.
2. Failure to File an Adequate Disclosure Statement
Along with the Complaint (the document filed in federal court to initiate the qui tam lawsuit), the relator must also submit a disclosure statement to the Department of Justice. This statement must include, “substantially all material evidence and information the [relator] possesses.” While the disclosure statement is not initially made available to the defendant, issues later discovered may provide grounds to seek dismissal of the case.
3. Insufficient Allegations to Support Liability
In order to establish liability under the False Claims Act, the relator’s allegations and evidence must support a finding of a certain level of intent. Generally speaking, submitting an inaccurate invoice or claim for payment to the government does not, standing alone, rise to the level of federal fraud.
In order to succeed in qui tam litigation, the relator and the government must typically be able to prove, at a minimum, that the defendant should have known about the false claim. As a result, even in cases involving legitimate allegations of false claims, defendants will often be able to present countervailing evidence to avoid False Claims Act liability.
Contact Cheshire Parker Schneider & Bryan, PLLC in Raleigh, NC
The federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC provide experienced and strategic legal representation for companies facing qui tam lawsuits in North Carolina. To speak with one of our attorneys about your case, please call (919) 833-3114 or contact us online today.
All certified public accountants (CPAs) in North Carolina are subject to Subchapter 08N of the North Carolina Administrative Code, which is entitled “Professional Ethics and Conduct.” This subchapter establishes the rules that govern all CPAs and accounting practices in the state, including those relating to confidentiality and client records.
While there are several provisions of Subchapter o8N that either directly or indirectly address confidentiality and client records, the two primary sections devoted to these topics are:
- 21 NCAC 08N .0205 Confidentiality
- 21 NCAC 08N .0305 Retention of Client Records
Under 21 NCAC 08N .0205, CPAs in North Carolina owe a strict duty of confidentiality to their clients:
“A CPA shall not disclose any confidential information obtained in the course of . . . a professional engagement except with the consent of the . . . client.”
While there are a number of exceptions to this rule, they are all narrowly limited, and they only apply in certain discrete circumstances where disclosure is required by law or rule. For example, disclosure of confidential client information is allowed without consent if required by court order or subpoena, or if requested in connection with an enforcement action by the State Board of Certified Public Accountant Examiners (the “State Board”).
Retention of Client Records
Under 21 NCAC 08N .0305, North Carolina CPAs owe a number of duties with regard to the retention and return of client records. Generally speaking, a CPA must return a client’s records “in his or her possession . . . after a demand is made for their return.” The rule further makes clear that “records shall be returned upon demand,” unless a reasonable delay is necessary to retrieve a closed file or extract work papers that are subject to retention under the rule.
With regard to work papers, CPAs in North Carolina have a general obligation to retain them for at least five years (or longer if required by law). All retained records remain subject to the confidentiality obligations in 21 NCAC 08N .0205. However, if certain work papers “contain data that should be reflected in the client’s books and records but . . . have not been duplicated therein,” then those work papers must be provided to the client upon request as well. As examples of work papers to which clients may be entitled, 21 NCAC 08N .0305 lists:
- Worksheets in lieu of original entry
- Worksheets in lieu of general or subsidiary ledgers
- Adjusting and closing journal entries and supporting details not included in the client’s journal entry
- Consolidating and combining journal entries, worksheets and supporting details used to arrive at final figures included in financial statements, tax returns and other final products
Speak with a Raleigh Professional License Defense Attorney in Confidence
If you are facing licensing action due to an alleged breach of confidentiality or failure to appropriately dispose of client records, the professional license defense attorneys at Cheshire Parker Schneider & Bryan, PLLC can defend you in your State Board proceeding. To discuss your situation in confidence, call our Raleigh, NC law offices at (919) 833-3114 or request a consultation online today.
Under the federal False Claims Act, there are two primary ways that the Department of Justice (DOJ) can initiate a civil claim for reimbursement and other penalties. The first is through a government-initiated investigation. The Federal Bureau of Investigation (FBI), the Department of Health and Human Services (DHHS) and numerous other agencies investigate individuals and businesses for submitting false and fraudulent claims to the government; and, based upon the evidence uncovered during these investigations, the DOJ can either file a civil lawsuit under the False Claims Act or press criminal charges.
The second way that individuals and businesses can face liability under the False Claims Act is through a citizen-initiated action pursuant the law’s whistleblower provisions. This is known as a “qui tam” lawsuit, and it has both important similarities and differences to government-initiated enforcement litigation.
Overview of the Qui Tam Litigation Process
The following is an overview of the primary steps involved in a qui tam case under the federal False Claims Act:
- A Whistleblower Files a Complaint – A qui tam action starts with the filing of a whistleblower complaint. While whistleblowers are frequently current or former employees, any member of the public who has information about a violation of the False Claims Act can initiate a civil action. The whistleblower (referred to as a “relator”) is generally entitled to remain anonymous during the government’s ensuing investigation.
- The Government Assesses the Whistleblower’s Claim – Once a relator files a qui tam complaint, the government will assess the allegations in order to determine whether an investigation is warranted. This investigation may involve prosecutors from the DOJ, agents from the FBI and investigators from any other agencies affected by the alleged fraud (such as DHHS in Medicare fraud investigations).
- The Government Decides Whether to Intervene – Based upon the results of the investigation, the government will either intervene in the litigation or decline to take further action. As a result, it is critical to have legal representation during the investigation. Note, however, that the relator can continue to pursue the case independently even if the government concludes that further action is unwarranted.
- Settlement Negotiations and Trial – Like non-government civil litigation, False Claims Act cases can (and often do) settle. Settling is typically the quickest, least-costly and least-disruptive way to resolve a qui tam However, if settlement is not a viable option, you may need to take your case to trial—in which case the litigation will proceed similar to other types of federal claims.
The civil penalties in qui tam cases under the False Claims Act can be severe. The maximum penalties under the law include payment of three times the government’s losses (“treble” damages) plus fines of up to $11,000 per false claim. What constitutes an individual “false claim” is construed narrowly, and defendants in qui tam actions can often face hundreds of thousands – if not millions – of dollars in civil liability.
Schedule a Confidential Consultation at Cheshire Parker Schneider & Bryan, PLLC
If you or your company has been named in a qui tam lawsuit, it is critical that you hire an attorney to intervene in the government’s investigation as soon as possible. To schedule an initial consultation with the Raleigh federal criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC, call (919) 833-3114 or contact us online today.