Covid-19 Healthcare Fraud

By Jarrad Wright
DiMuroGinsberg, PC

In this time of crisis, the federal government, state government and private industry are working on multiple fronts to respond to COVID-19 and to provide essential medical equipment and services to hospitals and those in need. While the pandemic has brought out the best in the vast majority of people, there will always be some that will see the crisis as an opportunity to profit at the expense of others. At present the Department of Justice’s focus has been on responding to the immediate need to prevent hoarding of medical supplies and price gauging. However, in the weeks and months ahead the focus is likely to shift to those that are violating the healthcare statutes through overbilling or fraudulent billing related to COVID-19. This is particularly true if the federal government begins reimbursing or paying the medical expenses of everyone not insured by COVID-19, as the administration has implied.

In recent years, the Justice Department has spent significant resources prosecuting healthcare fraud cases against physicians, hospitals, and the general public related to fraudulent healthcare claims. For example, in December 2019, the District of Kentucky charged ten former National Football League players for allegedly submitting false claims for reimbursement for false medical expenses to the NFL’s health reimbursement account. Similarly, prosecutors have charged a number of doctors and hospitals in recent years with a variety of fraudulent schemes including receiving kickbacks for prescribed medicines, prescribing medicines that were not needed in order to receive increased disbursements, and submitting claims under improper billing codes to increase payments. There are significant criminal and civil penalties at issue in such cases.

On the civil side, the False Claims Act is the primary statute used to collect monies from those that defraud the federal government. Under the Act, persons are liable if they submit a false claim for payment to the federal government and this includes government run or supported healthcare programs such as Medicare, Medicaid and Tricare. The consequences of the False Claims Act are significant and includes paying treble the amount of the government’s damages plus thousands of dollars of penalties per claim. Under the False Claims Act, those who submit fraudulent claims to the government are subject to a civil penalty of between $5,000 and $10,000 for each claim. However, because the Act allows for inflationary adjustments, as of 2016, violators now face penalties of between $10,781.40 and $21,562.80 per claim. Because the penalties are assessed per claim, a scheme over even a short period of time can amount to enormous sums of monies. This is on top of having to pay the governments’ costs for bringing the suit, and for healthcare providers, losing the ability to care for patients on government insurance programs.

On the criminal side, there are a wide variety of criminal healthcare statutes that can apply including the anti-kickback statute, general healthcare fraud laws, wire fraud, and money laundering. The Department of Justice has expended significant resources in recent years in having teams of prosecutors and F.B.I. agents specialize in such cases. The criminal penalties range from reimbursing loses to lengthy prison sentences and criminal forfeitures.

Once the immediate crisis subsides, it is likely that the government’s focus will shift back to whether or not it has been defrauded. DiMuroGinsberg has years of experience involving complex criminal and civil litigation. This includes defending people accused of healthcare fraud and pursuing False Claims Act cases. DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

DGRead 20.04.15

COVID-19 Paid Leave Entitlements Explained; Rocket Docket Update; Copyright and Remote Learning; DG/30 Milestone

Copyright and Remote Learning: A Primer for Remote Learning Instructors

By Cecil Key
DiMuroGinsberg, PC

As we all know, the Covid-19 virus has placed us in unprecedented circumstances. One such circumstance is that many non-educators are finding themselves thrust into the role of teaching students who would normally be gathered in a designated classroom via remote learning, often with no two students – or the instructor – in the same location. Fortunately, the technology available to us in the 21st Century allows this remote learning to be possible at all levels. High-speed internet and videoconferencing platforms provide the means to continue educational activities even as the institutions have been made unavailable. But there is a catch. This 21st Century technology is still subject to the limitations of 20th Century intellectual property laws.

For example, you may have heard that famed author J.K. Rowlings granted permission to allow her renowned Harry Potter books to be read in a remote learning environment without fear of running afoul of her copyrights in the books. To some, this might seem unnecessary – why should copyright law prevent the reading to children when our local and state governments are requiring us to teach remotely? Also, should the copyright laws apply when we’re simply reading as we normally would, just to students in remote locations, or when what we’re reading is a textbook, rather than a novel?

The truth is there are circumstances where the copyright laws may not be an impediment. However, it is complicated, and here’s why.

Copyrights are an exclusive right, meaning that the author of the work has the right to prohibit others from using the work. 17 U.S.C. § 106. The right to exclude extends to copying, displaying and performing the copyrighted work and derivatives of the work “either directly or with the aid of a machine or device.” 17 U.S.C. §§ 102, 106. There are exceptions. For example, by statute, the performance or display of original works cannot be copyright infringement if done so “in the course of face-to-face teaching activities of a nonprofit educational institution.” 17 U.S.C. § 110(1). The same is true for the performance or display of nondramatic literature or music that is transmitted outside the classroom, provided the performance or display is “made by, at the direction of, or under the supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.” 17 U.S.C. § 110(2).

The reading of materials to a class of students as part of a remote learning session is the “performance and display” in the course of teaching activities and, at first blush, appears to be exempt from copyright infringement under these provisions. Consider, however, what is likely to be a common scenario in the current Covid-19 world where the instructor is not a professional educator, the reading of the work is done from the instructor’s home, and each student is in a different physical space, such as his/her home.

Under these circumstances, the remote session is probably not a “classroom or similar place devoted to instruction.” It is also probably not face-to-face. In fact, the entire reason for the remote learning is so that we do not have to be face-to-face. It is also unlikely to be in a place devoted to instruction. This creates a paradox. The remote session is being conducted because the classroom is not available, but the copyright exception arguably does not apply precisely because the session is not in a classroom.

The exemption for transmission outside the classroom, which would solve the conundrum resulting from the classroom being unavailable, probably would not apply either. The exemption is limited to nondramatic literary or musical works. So, Harry Potter would not count. And the performance or display must be (1) by or at the direction of a professional instructor, (2) part of a class session offered as a regular part of systematic mediated instructional activities and (3) offered by a governmental body or accredited nonprofit educational institution. Again, in the scenario above, the instruction is being offered by those who are not normally instructors and is not part of a regular systematic mediated instructional activity offered by an established educational institution. In fact, the remote session is likely being conducted precisely because the regular instructors and established educational institutions are not available. And it’s probably fair to say that this environment is a distinct departure from the regular and systematic educational activity.

Unfortunately, the fact that the remote teaching sessions are the direct result of state and local government orders does not override these results. This very question has been the subject of litigation over the years, and the courts have to date provided no clear answer. This may all seem arcane and Draconian, but the laws are designed to protect an author from having her works distributed without permission from or compensation to her. That is the fundamental purpose of a right to exclude.

There is, however, no need to panic. The copyright statute also has a provision that exempts from copyright infringement activities such as use of the work for “teaching” and “classroom use.” Thus, a remote learning session that is clearly for the purpose of continuing the children’s education while the regular classroom is unavailable, and not for a commercial purpose, would weigh in favor of statutorily exempted “fair use.” See 17 U.S.C. § 107. The reading or display of a factual work would also favor exempting the use as fair use. See id.

What is the difference? The general fair use exceptions are determined according to all the facts and circumstances, meaning establishing fair use can require significant factual development. The specific education exceptions, however, are more straightforward so long as the specific requirements are met.

The best course of action is to try to let the regular teacher or instructor copy, perform or display the copyrighted work to the extent possible. It could also help if a particular spot (e.g., a designated room) is dedicated to the providing and receiving of instruction until the students are allowed to return to the educational institution, and if as little of the work as is possible is copied, performed or displayed, especially if the work is a highly creative one such as a novel or musical work. Finally, the performance or display can be limited to a “normal circle” of family and acquaintances, which is expressly permitted by the copyright statute. See 17 U.S.C. § 101.

For those involved in remote learning, these steps will help minimize copyright concerns as well all do our part to flatten the Covid-19 curve.

Coronavirus Scams—Don’t Be A Victim!

By Billy Ruhling, III
DiMuroGinsberg, PC

The federal stimulus package enacted in response to COVID-19 has gotten a lot of publicity in recent days. It offers a potential lifeline for businesses and families alike in this very troubling time. Unfortunately, no good deed goes unpunished. Along with the stimulus has come a round of scams, bogus offers, and phony charity requests.

As Attorney General Mark Herring recently explained:
“The sad truth is that we continue to see bad actors in Virginia and across the country taking advantage of the fear and uncertainty surrounding COVID-19 and trying to scam money from people.”

As a result, the Virginia Attorney General’s Office has encouraged citizens to remain vigilant regarding offers that seem “too good to be true.”

A few of the scams recently seen in connection with the current COVID-19 crisis are:

Cyber Scams – Emails purportedly sent on behalf of the Centers for Disease Control (CDC) or the World Health Organization (WHO), and other healthcare organizations. Take extra care when opening attachments, clicking links, or responding to unknown sources as these can all be used to exploit individuals by directing traffic to sites where they can provide misinformation or attempt to gain your personal information or finances.

Telephone and Text Message Scams – Robocalls are commonly used by scams. If you get such a call (typically offering COVID-19 treatments and cures or work-from-home schemes) – Hang Up! Similarly, if you get text messages from unknown sources with hyperlinks in them, do not click on these links. They can be used to install malware or otherwise expose you to risk of identity theft and financial exploitation.

Counterfeit Product Offers and Price Gouging – There are currently no known vaccines, pills, medications, or other prescription or over-the-counter products proven to treat or cure the Coronavirus. The same applies to “home test kits” for COVID-19 – the FDA has not approved any such kit. You should ignore offers to purchase any of these products.

We have all seen how much demand exists for common household products (household disinfectants, hand sanitizers, toilet paper, etc.). Before purchasing any of these products, particularly online, make sure you research the seller – only complete your purchase if everything checks out.

If you believe someone is price gouging in your area, contact the Attorney General’s Consumer Protection Section.

Phony Charities & Donation Requests – While the better part of humanity can often be seen during times of crisis, they also breed opportunists looking to take advantage of your kindness. Be cautious when approached to make donations to causes with which you are not personally familiar – particularly through crowdfunding sites. Only give to charities and fundraisers you can confirm are reliable and legitimate. You can quickly and easily verify a charity’s registration with the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs (OCRP) at (804) 786-1343, or by searching OCRP’s Charitable organization database online.

Following are a few basic tips to keep in mind:

  • The Offer Seems Too Good to be True—If it seems too good to be true, it almost certainly is. Examples include money left to you from an unknown relative, being awarded a loan or grant for which you did not apply, winning a lottery you did not enter and being selected to receive a share in funds in return for using your bank account.
  • Requests for Fees or Payment in Advance—Scammers will want advance payments or fees to clear the funds or complete their offer. It might not be clear what the fees are for, but the scammer will tell you they have to be paid or the money can’t be released. They might suggest they are only trying to help you out and the fees are a small sum compared to what you will be receiving. Never pay fees or taxes in advance.
  • Pressure—Scammers will often put pressure on their victims and urge them to pay immediately or lose the opportunity, or may even threaten them with legal consequences or disconnected utilities unless a payment is sent right away. A genuine business or government entity will not pressure you to act immediately.
  • Know who you are dealing with—Technology has made it easy for scammers to disguise or spoof their telephone number or create a website that looks very legitimate. Do an online search for the company name and website and look for consumer reviews. If you cannot find a seller’s physical address (not a P.O. Box) and phone number it should be a red flag. It is best to do business with websites you know and trust. If you buy items through an online auction, consider using a payment option that provides protection, like a credit card.
  • They Want Private Information—Many scams involve getting hold of your bank account details. Scams involving identity theft also seek personal information. A common scenario is an email supposedly from a bank asking you to click on a link to confirm your bank details and password. Banks generally don’t do this, but if you think the email has really come from your bank, pick up the phone and confirm with them. Never click on links or attachments in emails from people you don’t know or you risk your computer becoming infected by viruses, trojans, or other malware.
  • Untraceable Payment Method—Scammers prefer payment methods that are untraceable, such as wiring money through Western Union or other services. Be very suspicious of demands for wire transfers or cash payments. Never wire money to someone you do not know.
  • Grammatical Errors or Poor Production Values—Scammers may be clever, but they are not always careful and English may not be their first language. Their grammatical errors can give them away. If the correspondence you receive is full of errors, low-resolution images, or unsophisticated formatting, be very suspicious.
  • Suspicious Email Domains and Web Addresses—Look carefully at email addresses and domain names. Businesses rarely use free email services like Hotmail, AOL, Yahoo, or Gmail. Even if the business seems legitimate, do some research to make sure they have readily available contact information and have not scammed others.
  • Suspicious or No Addresses—Scammers do not want their victims to know where they live. If there is no physical address and your contacts won’t give you one, it’s a sure bet you’re being scammed. If there is a physical address, check it out using the Internet or Google Earth and see if it’s a real address.
  • Request for Access to Your Computer—A common scam is a phone call from someone claiming to be a technician who has detected problems with your computer and would like to fix them for you free. Never give anyone remote access to your computer.

If you think you may be a victim of a scam, contact the attorneys at DiMuroGinsberg at 703-684-4333 or you can reach out directly to the Consumer Protection Section:

DGRead 20.04.01

Remote Office: What’s Your Plan?; Rocket Docket Update; Help Me Force Majeure…You’re My Only Hope!; Compassionate Release; Social Distancing—an Oxymoron; DG/30 Milestone

Seeking Compassion for Those That Society Forgets

by Zachary Deubler
DiMuroGinsberg, PC
After an eight-day jury trial in December 2017, the defendant was found guilty on thirty-one counts related to money laundering and wire fraud. He was sentenced to a total of 96 months imprisonment, followed by three years of supervised release.

Shortly after his sentencing in January 2017, but before his incarceration for his underlying conviction, the defendant suffered a grand mal seizure. A subsequent CT scan showed a mass in the right temporal lobe of his brain, and a later MRI showed an infiltrative mass-like lesion suggestive of glioblastoma multiforme (GBM). That same January, the defendant underwent subtotal tumor resection which postponed his incarceration.

A postoperative MRI showed that the bulk of the tumor had been removed, though some residual tumor was still seen in scans. After his surgery and his initial round of radiation therapy, the defendant self-reported to the Bureau of Prisons to begin his sentence. Subsequent tumor pathology conducted in prison showed that mass was consistent with a high-grade (WHO Grade III) GBM.

In July 2018, the prison’s doctors evaluated the defendant and projected that he had less than 18 months to live.

That’s when DiMuroGinsberg began its hard-fought battle to obtain a compassionate release for this dying prisoner. On December 21, 2018, the President signed the First Step Act of 2018 into law. Among other reforms, the First Step Act amended 18 U.S.C. § 3582 to permit defendants to file their own motions for compassionate release when, among other requirements, there are extraordinary and compelling reasons to warrant the reduction of the prisoner’s sentence to time served. Among the accepted “extraordinary and compelling reasons” to justify a reduction in sentence is the diagnosis of a terminal illness, such as brain cancer.

Though a defendant might qualify under the First Step Act for a reduction in sentence, the defendant must nevertheless prove that they are deserving of such a reduction; by no means is the diagnosis of a terminal illness grounds for an automatic reduction in sentence. As was the case here, the government often fights the release of those who seek compassionate release under the new First Step Act.

The type of cancer the our client suffered from tends to present mild symptoms—headaches, mild seizures, and fatigue—until the very end life where the patient can suffer from a sudden and sharp decline in health. This presents its own obstacles in convincing a court that a particular defendant is sick enough to warrant a reduction in their sentence, when at first glance they appear to be fine. Though the defendant’s symptoms in this particular case were initially mild, his health deteriorated while in prison; an MRI in August 2019 showed an enhancing mass, and an MRI in November 2019 showed a new brain mass. Given his disease progression, the prisoner’s oncologist took him off the standard chemotherapy regimen and placed him on different drug regiment in a last-ditch attempt to stave off the cancer—it was still a fight to get the release.

In February 2020, the defendant was found unconscious on his cell floor by his cellmate, suffering from yet another grand-mal seizure. After the defendant was brought to the prison’s urgent care center, he continued to suffer from uncontrollable seizures that did not respond to anti-seizure medication.  When he was partially stabilized the prison’s medical staff transferred him to a local hospital’s ICU where he was subsequently intubated and placed in a medically induced coma surrounded by prison guards and cut off from all non-approved contact.

This sudden progression of his illness was enough to finally secure a reduction in his sentence. The defendant subsequently died several days later in the hospital ICU. It was March 4, 2020.
Even though DiMuroGinsberg is pleased to have secured his release, which enabled his family to see him in his final days, we are reminded of those still suffering in our nation’s prisons who are unable to spend their final moment surrounded by those who care for them.

DiMuroGinsberg received an Outstanding Achievement Award from the Washington Lawyers’ Committee for the work we did on this compassionate release case. This was done pro bono by DimuroGinsberg’s Nina Ginsberg and Zachary Deubler in conjunction with the FAMM (Families Against Mandatory Minimums), Washington Lawyers’ Committee, NACDL Compassionate Release Clearinghouse.