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Potential Defenses in Qui Tam Litigation

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.

 

Confidentiality and Client Records: Understanding CPAs’ Ethical Obligations

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:

Confidentiality

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:

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.

 

Qui Tam Defense: What To Expect During Your Whistleblower Case

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:

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.

 

A Look at the Rule Changes Currently Pending with the North Carolina Medical Board

The NC Rules Review Commission of the North Carolina Medical Board (NCMB) regularly considers and approves changes to the rules that govern the practice of medicine in North Carolina. You can follow the latest developments and review drafts of proposed and final rule changes through the NCMB’s Rule Change Tracker.

Here are some highlights from the NC Rules Review Commission’s most recent activity:

Effective July 1, 2017: Mandatory CME on Controlled Substance Prescriptions

Beginning July 1, 2017, all licensed practitioners and physician assistants who prescribe controlled substances will be required to complete annual continuing medical education (CME) on, “controlled substance prescribing practices, recognizing signs of the abuse or misuse of controlled substances, and controlled substance prescribing for chronic pain management.” Physicians must complete at least three hours of controlled substance CME (from the already-required 60 hours of Category 1 CME); and, for physician assistants, at least two of their mandatory 50 hours of CME must be devoted to the controlled substance-related topics listed above. The revisions affect Rules 21 NCAC 32R .0101 and 21 NCAC 32S .0216.

Physicians holding a residency training license are excluded from the new requirements.

Proposed: Mandatory CME on Controlled Substances Prescriptions for Nurse Practitioners

The NCMB has also proposed a change to Rule 21 NCAC 32M .0107 that would require nurse practitioners who prescribe controlled substances to complete at least one hour of continuing education annually that specifically addresses controlled substance prescription practices and abuse. As currently drafted, the rule change would become effective upon approval.

Proposed: Changes to Prescription Refill Rules for Controlled Substances

Also pending is a change to Rule 21 NCAC 32M .0109 that would change current practices concerning prescription refills. Under the current rule, refills can be issued for a period of up to one year, with the exception that dosage units for controlled substances on Schedules II, IIN, III, IIIN, IV and V are limited to a 30-day supply. The proposed change eliminates both of these qualifications, and simply states that refills for all controlled substances are subject to the Controlled Substance Law and Regulation.

The NCMB’s Disciplinary Authority

It is critical that medical practitioners in North Carolina stay up-to-date on the NCMB’s rule changes. Failure to adhere to the revised rules, even if the failure represents an adherence to previous standards, can lead to professional discipline – up to and including license revocation. While a single, minor rule violation is unlikely to have such dire consequences, multiple violations can lead to enhanced discipline, and violations such as prescription errors resulting from a lack of CME can have severe professional implications as well.

Speak with a Raleigh Professional License Defense Attorney

If you are facing disciplinary action by the NCMB and would like to speak with an attorney about protecting your professional license, contact the Raleigh, NC law offices of Cheshire Parker Schneider & Bryan, PLLC. To schedule a confidential initial consultation with one of our professional license defense attorneys, call (919) 833-3114 or request an appointment online today.

 

Campaign Donation Investigations Likely

Election season has just ended, so investigations into campaign donations are likely to begin.  Politically-active people and companies should be aware that these investigations often result in serious federal criminal charges.

Elections laws are complex, and even perfectly legal conduct can carry the appearance of corruption, particularly when people with business interests donate money to politicians.

Therefore, if you are approached or contacted an investigator about your campaign donations, assume that you are suspected of a serious crime and contact an experienced election law & campaign finance criminal defense lawyer immediately.  Making an unrepresented statement could ruin your future and your livelihood.

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At Cheshire Parker, we have decades of experience representing individuals under investigation for suspected political crimes.  If you have questions or concerns about your donations or other election-related activity, contact us today.

 

 

A Look at Police Mistakes That May Provide a Defense to DWI

Just like individuals who have been arrested for DWI can make mistakes that will harm their defense, arresting officers can make mistakes that will harm the State’s chances of a successful prosecution. In fact, even in cases where individuals who have been arrested have been drinking and driving, police mistakes will often provide defenses that can be used to avoid conviction at trial.

The following are four common examples of police mistakes that can provide defenses to DWI charges in North Carolina:

1. Lack of Reasonable Suspicion to Pull You Over

All police officers are subject to a number of Constitutional standards. One of these standards is that they cannot initiate a traffic stop unless they have reasonable suspicion that someone in the vehicle has been involved in the commission of a crime. If you were pulled over without reasonable suspicion, any evidence that the police obtained as a result of your traffic stop may be inadmissible at trial. Without evidence, the prosecutor’s office will be unable to build a case against you.

Keep in mind, however, that the reasonable suspicion does not have to relate to your drunk driving. If the arresting officer had reason to believe that you committed a different offense and then only discovered that you were intoxicated after pulling you over, you can still be prosecuted for DWI even though the officer lacked reasonable suspicion to stop you for driving while intoxicated.

2. Lack of Probable Cause to Make an Arrest

The Constitution also protects U.S. citizens from being arrested without probable cause. Probable cause is a higher standard than reasonable suspicion, so the police can lack probable cause to make an arrest even after a valid traffic stop. If a reasonable person would not have believed that you were driving while intoxicated, your arrest may have been invalid, and any evidence obtained following your arrest may be inadmissible to prove that you are guilty of DWI.

3. Improper Administration of Field Sobriety Tests (FSTs)

One way that the police can establish probable cause is by administering field sobriety tests (FSTs) after they pull you over. However, only certain FSTs have been scientifically proven to be reliable, and they are only reliable when they are administered appropriately. If the arresting officer used an unreliable test or did not follow the necessary procedures, his or her failure to do so may provide a defense to your DWI.

4. Improper Administration of Breath Test

The same also holds true for breath tests (breathalyzers). There are a number of factors that can contribute to faulty breath test results, and failure to calibrate testing equipment and other issues can taint breath test results as well. If police mistakes resulted in an inaccurate measurement of your blood alcohol content (BAC), the prosecution should not be able to use the tainted results at trial.

Arrested for DWI in Raleigh, NC? Speak with a Lawyer Today

In order to assert these defenses, you will need an experienced Raleigh DWI lawyer on your side. At Cheshire Parker Schneider & Bryan, PLLC, we bring decades of experience to defending clients against drunk driving charges in Raleigh, NC. To learn more about what we can do to protect you, call (919) 833-3114 or request a consultation online today.

 

Steps to Take When Facing a Grievance Filed by the North Carolina Medical Board

As a physician facing disciplinary action from the North Carolina Medical Board, there are steps you should begin taking promptly in order to minimize the consequences to the greatest extent possible. Depending on the severity and extent of the allegations, you could be facing sanctions up to and including revocation of your license – so you need to commit yourself to doing what is necessary to protect your practice.

While each case is unique, the following are all general steps physicians can take to begin preparing their defense when facing a grievance filed by the North Carolina Medical Board:

1. Make Sure You Understand the Allegations

The first step toward building an effective defense strategy is to understand the allegations against you. The notice you received should provide some insights, but you may need help from an attorney to gain a clear understanding of the severity of your present circumstances. The North Carolina Medical Board pursues cases for issues ranging from misrepresentations on license applications to criminal healthcare fraud, and the nature of your case will determine what you need to do to protect yourself.

2. Start Gathering Evidence

Once you know what the case is about, then you can start gathering evidence to aid in your defense. This could include academic records, patient records, billing records or any of a number of other types of documentation. You need to be careful about whose help you solicit during this process, and the best thing you can do is to seek guidance from your attorney.

3. Advise Your Staff to Avoid Mistakes that Could Hinder Your Defense

While you are facing disciplinary action, it is important that you and your staff avoid making mistakes that could jeopardize your defense. This takes on heightened importance if there is a possibility that the allegations involved could also lead to criminal charges. Any ongoing improprieties relating to the grievance should be addressed promptly, and your staff must avoid disposing of emails, records and other evidence that may be relevant to the case.

4. Understand the Possible Consequences of an Unfavorable Resolution

In disciplinary proceedings, the North Carolina Medical Board’s authority ranges from taking no adverse action to annulling or revoking the physician’s license to practice medicine in the state. Similar to understanding the allegations against you, understanding the potential consequences will be critical to constructing your defense. Can you avoid sanctions altogether? Or, should your defense strategy focus on minimizing the consequences of an adverse decision? These are crucial questions that require you to make informed decisions as soon as possible.

5. Hire an Experienced Professional License Defense Attorney

You are entitled to legal representation during your disciplinary proceeding; and, with your professional reputation (and potentially your license) at stake, you cannot afford to try to defend your case on your own. At Cheshire Parker Schneider & Bryan, PLLC, the attorneys in our professional ethics and licensing defense section represent physicians in Raleigh and statewide; and, if necessary, we can take action quickly to help you protect your practice.

Speak with a Professional License Defense Attorney about Your North Carolina Medical Board Grievance

If you are facing a grievance from the North Carolina Medical Board and would like to speak with an attorney about your case, contact Cheshire Parker Schneider & Bryan, PLLC to schedule a confidential initial consultation. You have questions. We have answers. Call (919) 833-3114 or request an appointment online today.

 

What are Some Common Examples of Medicare Fraud?

Following the Department of Justice’s national $900 million Medicare fraud takedown earlier this year, the Department of Justice, the Medicare Fraud Strike Force and other federal law enforcement authorities are continuing to aggressively pursue cases of suspected Medicare fraud. Medical providers and others in the healthcare industry throughout North Carolina are increasingly at risk for becoming targets in federal investigations, with civil and criminal prosecutions having the potential to lead to huge financial liabilities, loss of eligibility for Medicare reimbursement and even time behind bars.

But, what exactly is Medicare fraud? More importantly, what can practitioners in North Carolina do to help protect themselves from facing federal charges?

Common Allegations in Medicare Fraud Investigations

“Medicare fraud” is a broad term that encompasses violations of a number of different federal statutes. Some of the most common examples of Medicare fraud allegations include:

The list goes on and on, and with the enormous complexity of the Medicare regulatory structure and billing system, it is not uncommon for physicians and others to face allegations when they have no knowledge of impropriety. Lack of knowledge can be a key defense in many Medicare fraud investigations, and you will want to promptly discuss your defense options with an experienced attorney.

Protecting Yourself (and Your Practice) in a Medicare Fraud Investigation

If you are facing a Medicare fraud investigation in North Carolina, there are several steps you need to try to take right away. Your goal should be to prevent the investigation from leading to civil or criminal charges, and the best way to do this is to hire an attorney to intervene in the investigation as soon as possible. Your attorney will be able to:

Contact the Raleigh Criminal Defense Attorneys at Cheshire Parker Schneider & Bryan, PLLC

If you would like to speak with an attorney about your Medicare fraud investigation in confidence, contact the Raleigh, NC law offices of Cheshire Parker Schneider & Bryan, PLLC. To schedule an appointment as soon as possible, call (919) 833-3114 or contact us online today.

 

Are You Facing a Federal Investigation for Healthcare Fraud?

In recent years, the Centers for Medicare and Medicaid Services (CMS), the Department of Defense (DOD), the Department of Justice (DOJ) and other federal agencies have intensified their efforts to combat healthcare fraud. Healthcare is a multi-trillion-dollar industry, with a significant portion of that money coming from Medicare, Medicaid, Tricare and other federal government programs.

The federal government’s efforts to combat healthcare fraud range from establishing an elite task force comprised of top agents and prosecutors (the Health Care Fraud Prevention and Enforcement Action Team, or “HEAT”) to using big data to identify anomalies that may be indicative of fraud. Unfortunately, while this reliance on data has saved the federal government billions, it has forced numerous innocent healthcare providers to defend themselves in unwarranted investigations as well.

What Constitutes Healthcare Fraud?

“Healthcare fraud” is a broad term that encompasses a wide range of offenses under a number of different federal laws. Three of the most common forms of healthcare fraud include:

Healthcare fraud can be charged as both a civil and a criminal offense. A finding of civil liability can mean thousands, if not hundreds of thousands or millions of dollars in fines and penalties, while a criminal conviction for healthcare fraud can potentially mean decades of federal incarceration.

When Should You Hire a Healthcare Fraud Defense Attorney?

If you or your business is facing a federal investigation for healthcare fraud in the Raleigh area, it is critical that you speak with a federal criminal defense attorney as soon as possible. You are entitled to legal representation during the government’s investigation, and hiring a lawyer before you get charged can have numerous benefits.

At the top of the list, if the government will not drop the investigation, your attorney will be able to argue that your case should remain civil in nature. Keeping your case civil reduces your potential exposure, and it keeps prison time off of the table.

Learn more about the benefits of hiring a lawyer during your federal healthcare fraud investigation.

Schedule a Confidential Initial Consultation at Cheshire Parker Schneider & Bryan, PLLC

The Raleigh, NC criminal defense attorneys at Cheshire Parker Schneider & Bryan, PLLC have decades of experience representing clients in healthcare and other federal investigations. If you have been contacted by federal agents, received a subpoena or suspect that you may be the target of a federal investigation, call (919) 833-3114 or contact us online to schedule a consultation today.

 

Can Criminal Charges Put Your Professional License at Risk?

As a licensed professional in North Carolina, facing criminal charges can cause significant harm to your reputation, especially if the charges become publicized. But, did you know that, in many instances, facing criminal charges can put your professional license at risk as well?

In many professions requiring licensure, commission of a criminal act is grounds for license suspension or revocation. While the rules governing some professions only provide for discipline in the event that a professional commits a crime that is in some way relevant to his or her practice, these rules are often subject to broad interpretation. As a result, if you are a licensed professional facing criminal charges in North Carolina, you may need to defend yourself on two separate fronts in order to attempt to safeguard your career.

When Criminal Charges May Lead to Professional Discipline

The following are a few, non-exclusive examples of licensing laws and rules in North Carolina that provide for potential discipline when a professional faces criminal charges:

1. North Carolina Rules of Professional Conduct for Lawyers

Under Rule 8.4 (“Misconduct”) of the Rules of Professional Conduct, it is professional misconduct for a lawyer to, “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Under Comment [2] to Rule 8.4, “[o]ffenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice,” may all warrant disciplinary action. Comment [3] makes clear that a conviction is not necessary to establish that a lawyer has committed a criminal act.

2. North Carolina General Statutes Chapter 90, Medicine and Allied Occupations

Under Section 90-14(a) of the North Carolina General Statutes, the North Carolina Medical Board (the “Board”) has the authority to revoke a physician’s license if he or she is convicted, “in any court of a crime involving moral turpitude, or the violation of a law involving the practice of medicine, or a conviction of a felony.”

Pursuant to subsection (c) of Section 90-14, a felony conviction results in automatic revocation of the physician’s license unless (i) the Board decides otherwise, or (ii) the physician submits a request for a hearing within 60 days of receiving notice from the Board.

3. North Carolina General Statutes Chapter 93, Real Estate License Law

Under Section 93A-6(b) of the North Carolina General Statutes, the North Carolina Real Estate Commission has the power to suspect or revoke the license of any licensee who, “has been convicted or has entered a plea of guilty or no contest . . . of any misdemeanor or felony that involves false swearing, misrepresentation, deceit, extortion, theft . . . or any other offense showing professional unfitness or involving moral turpitude.” In addition, to justify suspension or revocation, the offense must, “reasonably affect the licensee’s performance in the real estate business.”

Contact Our Raleigh Professional License and Criminal Defense Attorneys Today

If you are a licensed professional facing criminal charges in the Raleigh area, we encourage you to contact us for a confidential initial consultation. To speak with our professional license and criminal defense attorneys about your case, call (919) 833-3114 or inquire online today.

 


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Cheshire Parker Schneider & Bryan, PLLC 133 Fayetteville Street Suite 500 Raleigh, NC 27601 | Phone: (919) 833-3114 Fax: (919) 832-0739