Archives for October 2014

What is Lost in the Wait for Immigration Reform?

Opportunities, Time, Money and Lives Lost Waiting for Immigration Reforms

The answer seems obvious:  for those caught up waiting for changes in U.S. immigration policies, there has been lost opportunity, lost financial gain, and lost lives. However, the matter of immigration reform is actually quite complex. On October 22, 2013, the Immigration Policy Center released a report titled The Cost of Doing Nothing. The policy group was clearly unhappy with Congress’ failure to act on immigration reform legislation. The report expresses resentment and disappointment with the “enforcement only” approach to immigration that has caused many human tragedies and wasted millions of taxpayers’ money. As the report indicates, the full economic potential of unrecognized immigrants as taxpayers, workers, entrepreneurs, and consumers continues to be squandered because there is no path for them to obtain legal status.

waiting = lost timeNo one says the government shouldn’t enforce our immigration laws and properly screen people coming into the United States. But if proposed legislation offering hope and a solution for the millions of undocumented immigrants already here had been viewed with the urgency it deserves, it would have not only helped a large but silent population but also been a major step towards strengthening society while at the same time expanding the public coffers.

The Immigration Policy Center’s report is worth a read. Not only have taxpayers lost lost millions of dollars over the years, but families have been broken and lives lost in what has become a black eye to our country’s long history of inclusion and openness.

The U.S. immigration system was last overhauled in 1986. Much has changed in this nearly 30 year span, yet our immigration policies have not kept up as societies become globalized. How can millions in spending on immigration enforcement be accounted for when the number of unauthorized immigrants in the country has tripled to approximately 11 million and continues to rise?

And that’s just the tip of the iceberg. The following statistics are enlightening:

  • At least 240 immigrant deaths occur every year at U.S. borders. Every year from 2005 to 2012 has seen at least 350 deaths, with the highest number being 463 in 2012.
  • The US Border Patrol budget has multiplied tenfold from 1993 to 2012.

The Atlanta, Georgia law firm of Brownstein & Nguyen has helped thousands of foreign citizens over the last 20 years. Individuals have found support in obtaining visas to come and live in the United States. Tien G. Nguyen, a founding lawyer with the firm, has the necessary expertise to help individuals and families with their visa needs. She has assisted with cases involving visas and green cardscitizenship and naturalization, and removal/deportation. Contact our Atlanta, Georgia immigration law attorneys if you, a family member or someone you know needs expert advice or representation in immigration law, do not hesitate to call for a free consultation.

 

Why are Medical Costs so High?

If you have ever found yourself sifting through medical bills that seem overwhelming, you are not alone. This is frequently true when trying to make sense of the costs associated with an emergency room visit. After all, no one plans a visit to an emergency room.

medical billsWhen faced with expenses that seem unreasonable, it is important to consider factors that might offer some sort of explanation as to why medical costs are so high. A blog in the Washington Post discussed a recent Rand Corporation study exploring the purported relationship between healthcare costs and medical malpractice.

Is there a connection between healthcare costs and medical malpractice?

The theory behind medical malpractice or “tort reform,” advanced in recent years by the insurance industry and special interest groups, is that physicians order unnecessary tests to protect themselves from the risks associated with medical malpractice. This is sometimes referred to as “defensive medicine.” The theory begs the question:  are all diagnostic tests ordered in emergency care medically necessary? The question is admittedly complicated, given the urgent nature of medical care provided in emergency rooms. Medical personnel must be able to rule out certain causes of symptoms for patients that they may not have a complete medical history of. Still, the question remains whether all tests are required for care, or if some (or many) tests are performed only to protect doctors from lawsuits.

The New England Journal of Medicine recently published an article regarding the Rand study, titled The Effect of Malpractice Reform on Emergency Department Care. The study compared costs associated with emergency patient care in states that have passed laws making it more difficult for patients to sue their doctors for negligence, compared to states without similar laws. The results of the study show that strict medical malpractice laws have made little difference in the spiraling cost of medical care. The study therefore goes a long way towards debunking the theory that the fear of lawsuits is the driving force behind rising healthcare costs.

While some individuals battle with a sea of bills, others are left sifting through a sea of research and data to determine how care has become so expensive. While defensive medicine may not play a role, perhaps more important is the connection with healthcare billing fraud. More information can be found regarding fraudulent billing of Medicaid and Medicare in the Primer on Whistleblowing in Healthcare , co-authored by Brownstein & Nguyen attorney Jay Brownstein. If you suspect that your medical expenses are unreasonable as a result of billing fraud or overbilling, contact our trusted Atlanta attorneys for a consultation about healthcare whistleblowing. Brownstein & Nguyen’s Georgia lawyers are experienced in handling complex litigation matters and have represented and consulted with clients in whistleblower cases.

The Sound of Music and Real Life Immigration

The Sound of Music is not only considered one of the best musicals of all time – it is also one of the most famous stories of one family’s struggle to leave oppression behind for a chance at freedom and a new life in the United States. The movie hit the silver screen in 1965, and grossed over 280 million dollars. While this beloved family classic leaves many viewers singing and humming the catchy tunes, it may not be an entirely factual account of the Von Trapp family’s story (the move is loosely based on “The Story of the Trapp Family Singers” written by Maria von Trapp, the character played by Julie Andrews).

Family MemoriesFor a deeper look into the facts about the von Trapps, there is an excellent article in the National Archives publication, Prologue Magazine. The article, The Real Story of the von Trapp Family, identifies many of the truths that were not accurately captured for the Hollywood version of the story. Those differences aside, we do know that the von Trapp family left Austria to escape the Nazi regime and made the journey to the United States in search of a better life.

The National Archives holds U.S. court and Immigration and Naturalization Service documents relating to the von Trapp’s family pursuit of citizenship in this country. Those original documents might offer a glimpse into how complex and involved the process of becoming a United States citizen was in the past. But this also remains true today, as citizenship involves a complicated process fraught with the possibility of making costly mistakes. It can be so complicated that, in many cases, having qualified legal assistance at your side is essential to the success or failure of a citizenship application.

While the von Trapp family story is true, the reality of becoming a legal permanent resident or citizen of the United States is not as quaint or care-free as it might appear in the movies. Brownstein & Nguyen has represented thousands of individuals and their families seeking to make the United States their permanent home. Knowledge of complicated immigration laws and how to correctly navigate the maze of paperwork and procedures while avoiding pitfalls in the process of obtaining green cards, temporary visas, citizenship or permanent residence is something our Atlanta immigration attorneys have decades of experience in. Our Atlanta law firm is here to help make your dreams become a reality. Contact our offices at 770-458-9060 or fill out our Case Evaluation form today so that we can help you achieve the American dream.

When a Volkswagon Beetle is Half a Billion Dollars

Start-up and small businesses are the life-blood of our struggling economy in Atlanta and nationwide. Whether financed through sweat equity or angel investors, it is easy to bump into someone pursuing their dream of owning a business. Often, that dream involves a partnership with someone who shares the same vision of small business ownership.

While there are many upsides to start-ups (in some cases millions of them), there are always considerable risks. Risk taking can be healthy when it comes to starting a business adventure in Atlanta. Growth and achievement do not happen without risk. However, it is important to be proactive in planning for and mitigating risks at the beginning. No one should start a business venture with someone else, even a family member, without a written agreement about how to handle future disputes and problems without destroying the business.

While an idea may grow into a business plan, and that initial shared dream may spring from friendship (or family ties), business partnerships often turn ugly. When partnerships are formed, there must be shared vision of what the overall direction of the business is and how to get there. Equally important, should a disagreement or business failure occur in the future, it is important to have built-in options for partners before the problem develops.

Volkswagon BeetleTake Domino’s Pizza for instance. In 1960 Thomas (Tom) Monaghan and his brother James borrowed $900 to purchase a pizza store. In 1961 James decided to trade his half of the business for a Volkswagon Beetle. Perhaps at the time this seemed like a wise move. However, after Tom Monaghan steered Domino’s into a household name, in 1998 he chose to retire and sold the company for $1 billion. Probably the worst investment decision James ever made was taking a Volkswagon Beetle for his stake in a business that would eventually be worth half a billion dollars!

While the Monaghan brothers didn’t have a family feud over money, one can easily see how it could happen. To avoid major financial and legal headaches, proper documentation must be planned and signed in advance of a business divorce, business dissolution, or business break-ups. Surely, all partners would want to make sure that they are fairly compensated for their time, sweat equity and capital investments, that their legal rights and obligations are clearly defined, and if necessary that the assets of a business are fairly divided.

With over 20 years of experience handling business litigation cases in Atlanta, the Atlanta business dispute attorneys at Brownstein & Nguyen are more than qualified to handle your situation. Brownstein & Nguyen offers their experience and expertise with all business law cases. Contact our law offices today for a consultation regarding your business problem or needs.

Immigration Removal & Post-Conviction Relief

Criminal convictions, no matter how old, can be problematic for those seeking relief under U.S. immigration laws. Many criminal offenses charged as misdemeanors under state law are considered an “aggravated felony” for immigration purposes. Non-citizen immigrants, or “aliens,” charged by the government as having one or more aggravated felony convictions may be deemed “removable” and put into removal or deportation proceedings. Often, the way in which a sentence was written triggers removability under the Immigration & Naturalization Act (INA).

immigration arrestIn 2010, the U.S. Supreme Court held that the Sixth Amendment requires that a defendant in a criminal proceeding be correctly advised of the immigration consequences of a guilty plea. Padilla v. Kentucky, 559 U.S. 346. The actual advice given varies with the particular circumstances of each case. However, following Padilla the Georgia Supreme Court ruled recently that where “the law is clear and deportation is mandatory…an attorney has a duty to accurately advise his client of that fact.” Encarnacion v. State (Sept. 22, 2014). The failure to do can present a claim of ineffective assistance of counsel – a potential ground for overturning a conviction based on a guilty plea.

For an immigrant facing removal based on a criminal conviction or guilty plea, there are several possible avenues of post-conviction relief. If the person pled guilty without adequate advice from counsel concerning immigration consequences (as in Mr. Encarnacion’s case), grounds may exist to seek to overturn the conviction through a habeas corpus petition filed with the state court. For the best chance of success, a habeas petition should be prepared and filed by an attorney experienced in post-conviction relief matters.

If a misdemeanor conviction is considered an aggravated felony under the INA due solely to the way the sentence was written, post-conviction relief in the form of sentence correction or clarification could be available. The attorney representing a person needing such relief would first obtain a complete copy of the court’s file in the criminal case, and then file a motion for clarification to ensure that the sentence intended by the court and actually completed by the defendant did not meet the criteria for an aggravated felony under immigration law. Often, relief from the sentencing court can be obtained by counsel first seeking the consent of the state’s prosecuting attorney’s office.

Finally, if neither of these avenues for relief is available one could petition for a pardon if the legal requirements for doing so are met. In Georgia, to apply for a pardon a defendant must have (1) completed all sentence(s) imposed at least five years prior to applying, including the payment of all fines, (2) lived a law-abiding life since the completion of the sentence(s), and (3) have no pending charges. Again, someone seeking relief in the form of a pardon is well-advised to seek the help of qualified and experienced legal counsel.

The Atlanta GA immigration attorneys at Brownstein & Nguyen have over 20 years of experience in immigration law, including representing clients in removal proceedings and seeking post-conviction relief for those who qualify. If you or a loved one is currently facing removal based on a prior criminal conviction, contact us today for help.

End of Life Care, Dreams, and Wishes

Joseph Andrey whispered his wish, “I want to go home, to my books and my music,” to his daughter and power of attorney Maureen Stefanides. Caught in a never-ending cycle, his wish to live and die peacefully at home was seemingly disregarded by a for-profit system that is understaffed, too rigid, and unsympathetic to last wishes. As much as Ms. Stefanides fought to honor her father’s wishes to go home, she was was never able to free him from the constant carousel of trips to the hospital followed by discharges to nursing homes and rehabilitation facilities.

These trips to the hospital and stays in nursing homes exposed Mr. Andrey to healthcare-associated infections and poor care, causing his health to further decline. With the infections and worsening medical condition, he was less qualified to recieve the home care that his daughter so desperately sought for him. So, Mr. Audrey continued on the circular journey from hospital to nursing home and back to the hospital again.

Nursing Home CareThe case of Joseph Andrey is not entirely unique. The elder care and abuse attorneys at Brownstein & Nguyen have represented and advised clients dealing with end-of-life care issues such as those faced by Mr. Andrey and his daughter. The firm has helped those fighting the system to allow elderly loved ones to die in the peace of their own homes – the last bit of dignity and humanity they can be granted.

How can a system recognize and fulfill the individual needs of aging patients if facilities are over-run, understaffed, and ultimately motivated by profits? When it comes to end of life care, sometimes hurdles are in place that don’t seem to make sense. In Mr. Audrey’s case, he was allowed to return home twice but each time the home health agency responsible for his care terminated services, deciding his case was too costly and frequent hospital stays deprived caregivers of steady income. A merry-go-round of profit-driven nursing homes that only paid the highest reimbursements for the first 100 days after admission were the only alternative.

As life expectancy rates increase and quality of life challenges are faced with certainty by so many, how will your family deal with end of life issues like those Joseph Audrey and his daughter faced? At Brownstein & Nguyen, we do not claim to have all of the answers to the heartbreaking sagas that unfold for so many families. But we do take the time to listen and understand each individual situation, and if possible help fight for the healthcare rights and dignity of elder patients – including those nearing their end. If you are caught in a healthcare system trap, feeling powerless even with power of attorney rights, perhaps fighting to keep your loved ones at home to properly oversee their end of life care, contact Atlanta attorneys Brownstein & Nguyen.

Blowing the Whistle in Court

WhistleblowerThe vast majority of physicians and other health care providers endeavor to provide services and bill for them in an ethical, legal manner. Trust is at the core of the federal government’s provider reimbursement scheme under Medicare and other federal health programs. The federal government relies upon health care providers submitting accurate and truthful claims. The fact that some health care providers have exploited federal health programs for illegal economic gain has resulted in laws intended to combat fraud and abuse, improve patient care and protect tax payer money. Currently, there is a strong push in federal law enforcement to aggressively enforce federal fraud and abuse laws.[1]

The Federal False Claims Act, 31 U.S.C. §§ 3729-3733 (FCA), makes it illegal for health care providers to submit claims for payment to Medicare that the provider knows, or should know, are false or fraudulent. The FCA contains a whistleblower provision that authorizes a private citizen or “relator” to file a lawsuit on behalf of the federal government, and entitles relators to a percentage of any recovery.  FCA whistleblower cases often assert violations of other federal fraud and abuse laws, such as the Anti-Kickback Statute, 42 U.S.C. § 1320a–7b (AKS), the Physician Self-Referral Law, 42 U.S.C. 1395nn (Stark Law), the Exclusion Authorities, 42 U.S.C. § 1320a-7, and the Civil Monetary Penalties Law, 42 U.S. Code § 1320a–7a (CMPL).

For relators, “blowing the whistle” becomes more than an abstract notion when it comes time to “plead,” or state, the claim in court. Assuming a claim has legal merit, getting it right in court is what determines success or failure. Following the law in reporting alleged wrongdoing is essential, including procedural law dictating how to properly plead a case. Rule 9(b) of the Federal Rules of Civil Procedure requires that “[t]he whistle must be blown not only loudly, but with Rule 9(b) particularity in the Complaint before the courts will listen.”[2] The concept of “particularity” is important to a federal whistleblower’s opportunity for success. This means is that a whistleblower complaint must state “facts as to time, place, and substance” of the alleged wrongdoing, and that “an actual false claim for payment [was] made to the Government.”[3]

A whistleblower must allege not only a fraudulent scheme but also that the fraud resulted in the submission of false claims to the government. If the complaint fails to include details of the presentment of actual false claims, the case, even if meritorious, could be dismissed at the outset. It’s not enough to plead with particularity the circumstances establishing the elements of an alleged scheme to defraud; rather, the whistleblower must “meet the minimum pleading requirements for the actual presentment of any false claims.”[4] A qui tam complaint that fails to do so is subject to dismissal. The rationale behind this strict pleading requirement is that a trial court should be satisfied from the complaint that there is a “sufficient indicia of reliability to support the assertion that the defendants submitted false claims.”[5]

Take, for example, a Medicare whistleblower case filed against a company providing medical testing services to long-term care facilities. The complaint alleged in detail six fraudulent schemes to defraud the federal government with unauthorized, unnecessary or excessive medical tests. However, the suit was dismissed because the relator failed to provide sufficient factual details regarding the presentment of actual claims to the government.[6] In another healthcare qui tam case, the 11th Circuit appeals court affirmed a dismissal because the whistleblower failed to identify amounts and dates of charges submitted to the government.

As a practical matter, whistleblowers with direct knowledge of fraudulent conduct often lack access to specific evidence of the submission of false claims. Recognizing such evidence is typically in the defendant’s exclusive possession, courts often look to other factors in determining if there is “sufficient indicia of reliability” to allow a case to proceed. One important factor is the nature and extent of a relator’s personal knowledge. For example, a professional employee with knowledge of how the healthcare services she provided to patients were billed by her employer may be viewed as sufficiently credible to overcome a lack of detailed knowledge about the submission of individual claims.[7]

The rule requiring whistleblowers to plead federal qui tam cases with particularity serves an important purpose of alerting defendants to the precise misconduct they are charged with, and protecting against unsupported charges of fraud. Due to this and other procedural rules, however, it is paramount for potential whistleblowers to seek legal advice about whether and how to blow the whistle in court.

About the authors

Jay Brownstein and Kevin Little are experienced litigators who often represent parties in complex disputes pending in state and federal courts and before administrative agencies, including whistleblower matters. To learn about the authors, please visit their websites at www.bnlawatlanta.com and www.ksllawfirm.com, or email them at jdb@bnlawga.com or kevin@ksllawfirm.com.

[1] In addition to record civil recoveries in healthcare fraud cases alone (over $12 billion from 2009–2013), a multi-agency task force called the Health Care Fraud Prevention and Enforcement Action Team (HEAT) has led to a 75% increase in criminal prosecutions of Medicare fraud from 2008 to 2011 alone. Since 2007, HEAT’s Medicare Fraud Strike Force has brought criminal charges against over 1,400 defendants accused of collectively falsely billing Medicare more than $4.8 billion.

[2] U.S. v. McInteer, MD, et al., 470 3d 1350, 1357 (11th Cir. 2006)(“McInteer”).

[3] McInteer, supra at 1357.

[4] McInteer, supra, at 1358.

[5] McInteer, supra, at 1358.

[6] U.S. ex rel. Clauseen v. Lab. Corp. of Am., 290 F.3d 1301 (11th Cir. 2002).

[7] U.S. v. R&F Properties of Lake County, Inc., 433 F.3d 1349, 1360 (11th Cir. 2005)(nurse practitioner’s knowledge that services were billed “incident to” physician services sufficient for pleading purposes).