posted on October 6, 2014 by

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.

Filed Under: All Postings, General News, Immigration, Immigration Law
posted on September 3, 2014 by

Medical Care Issues for Elderly Hospital Patients

You have an aging parent, spouse or loved one who you fear is no longer capable of making decisions about their own healthcare. You planned ahead and obtained a healthcare power of attorney so you can legally act on their behalf and make decisions for them when the time comes. But the last thing you anticipated is bad or negligent hospital care and fighting for your loved one’s rights to receive the best possible care. Unfortunately, this is an all-too-common scenario.

Hospital BedAs we age, we eventually lose mobility, physical capabilities and mental capacity. Whether these things occur separately and gradually as part of the natural aging process, or suddenly and in tandem due to illness or trauma – at some point we all become incapacitated. When that happens, we are at our most vulnerable and particularly in need of significant care and assistance. Unfortunately, not all healthcare facilities and providers are equally suited to care for incapacitated elderly patients. This is especially true of hospitals and acute care facilities that are traditionally geared toward the short-term treatment of illnesses and injuries. Once patients reach a certain level of medical improvement, it is expected they will leave to the hospital to convalesce at home or be transferred to a skilled nursing, rehabilitation or other facility.

Elderly patients who are hospitalized – whether from a fall, heart issue or other health problem requiring urgent care – are at risk of a debilitating, and sometimes fatal, decline in physical and mental health. Such a decline can create a difficult set of circumstances not only for the patient and family, but for also the treating facility. Many hospitals are not structured or staffed to provide long-term care for incapacitated patients needing daily assistance to survive. This can include, for example, immobile patients who require frequent turning and repositioning to prevent skin breakdown and bedsores or decubitus.

When elder patients become physically or mentally compromised to the point of needing full-time assistance, hospitals are required to provide adequate care until the patient can be transferred to a more appropriate facility. Unfortunately, long-term care facilities such as nursing homes and rehabilitation centers are not required to accept patients, and many will reject patients depending on their condition. This problem can put aging patients and their families at odds with hospitals, which may be unable to provide adequate care necessary to ensure the patients’ well-being and comfort.

So, what can you do if your parent, spouse or loved one is in this situation? Here are a few suggestions, based on personal and professional experience.

  1. Seek open communication with doctors and staff. It is critically important to consult and openly communicate with your love one’s treating physicians, nurses, and other staff members (for example, social workers or patient care coordinators) so you can have a complete understanding of the medical facts and their opinions concerning the patient’s condition(s), prognosis and treatment. Ask as many questions as necessary to help gain such an understanding. Learn what care options are available for your loved one, given their condition. You might consider keeping a journal and taking detailed notes of your conversations with physicians and hospital staff, so later you can recall who said what.
  2. Work to resolve disagreements concerning care amicably. If a dispute arises concerning the appropriate care or best course of action for your loved one, seek to resolve it by working cooperatively with physicians and hospital staff. If possible, try to craft a solution that is in the patient’s best interests and also satisfies the goals of the family and hospital. Keep in mind that healthcare providers and agents (family members with power of attorney) must always act in the patient’s best interests, and that professional providers’ views of what that might be in a given case may differ from those of the patient’s family.
  3. Address concerns with hospital administration. If you are unable to adequately resolve concerns or reach consensus on the best course of action and care for your loved one, ask to meet with a hospital administrator. Before meeting, you may wish to first provide a detailed outline of the situation in a memo or letter (the journal you kept will come in handy). Work to keep the meeting constructive and focused on achieving a resolution that best meets the needs of the patient, family and hospital. Be sure that appropriate individuals attend the meeting, including a decision-maker for the hospital and possibly a treating physician or other medical professional knowledgeable about your loved one’s condition.
  4. Contact an elder care attorney. If all else fails, consider contacting a qualified elder care attorney for consultation and possible representation. Such an attorney can assess the legal circumstances and provide advice about the best course of action to achieve the family’s goals. The attorney can also intercede on the family’s behalf and seek a resolution with hospital officials, both by making written requests and also by communicating with the hospital or legal counsel. Finally, as a last resort, the attorney can petition a court for relief on an emergency basis, if warranted by the circumstances. Courts may use their extraordinary equitable powers to order certain actions be taken on behalf of the family and patient.

If you are experiencing poor or inadequate hospital care for an elderly patient, or find yourself in a dispute over proper care for an aging parent, spouse or loved one, contact the elder care and medical malpractice attorneys at Brownstein & Nguyen. Our Atlanta lawyers have years of experience fighting for the healthcare and legal rights of the elderly and their families.

Filed Under: All Postings, Elder Care/Malpractice, General News
posted on July 16, 2014 by

Healthcare Whistleblower Claims Based on Self-Referral Arrangements

In an effort to improve and maintain integrity in our healthcare system, Congress passed the Stark Law (also known as the Efforts in Patient Referrals Act) and Anti-Kickback Statute (AKS). These laws, modified over the years, and regulations enacted under them prohibit certain referral arrangements and payments, or kickbacks, for the referral of designated health services (DHS).

When receiving medical care, patients expect doctors to uphold the ideal of the hippocratic oath and to make treatment decisions based solely on a determination of the patient’s best interests. Unfortunately, some doctors and healthcare providers violate the public trust by engaging in illegal referral or kickback schemes motivated by profit, not the well-being of patients. The Stark Law and Anti-Kickback Statute exist to prevent and punish such arrangements. These laws not only protect patients, but under the False Claims Act they allow the government (through qui tam lawsuits filed by private citizens) to recover taxpayer dollars unjustly received by healthcare providers who choose to abuse the system.Whistleblowing

A recent example of a healthcare whistleblower lawsuit involving the very type of abuses the Stark Law and AKS were designed to address is the case of U.S. ex rel. Baklid-Kunz v. Halifax Hospital Medical Center and Halifax Staffing, Inc. In that case, filed in 2009 by Halifax Hospital’s former director of physician services, the hospital was accused of improperly compensating medical oncologists and neurosurgeons for referring patients to the hospital for procedures. The government sought to recover over $34 million in fraudulent Medicare claims it claimed resulted from an unlawful compensation plan where doctors received bonuses based on the profits of the hospital’s medical oncology department. With treble damages and substantial civil penalties under Stark Law, the total award against the hospital could have topped $1 billion. In March 2014, on the eve of trial, the hospital agreed to pay $85 million to settle the case. Daniel Levinson, Inspector General for the U.S. Department of Health and Human Services, commented that “[p]atients deserve to know that recommendations are based on sound medical practice, not illegal financial relationships between providers.”

Whistleblowing in the healthcare field and claims based on self-referral arrangements are explored more in-depth in Healthcare Whistleblower Claims Based on Self-Referral Arrangements, an article co-authored by Atlanta attorneys Jay Brownstein and Kevin Little. In it, the authors describe the important role the Stark Law and Anti-Kickback Statute play in maintaining the integrity of our healthcare system.

If you have questions or concerns about healthcare whistleblowing, contact Brownstein & Nguyen today for a consultation.

Filed Under: All Postings, Billing Fraud, Featured, Healthcare Fraud, Whistleblower Claims
posted on June 5, 2014 by

The Affordable Care Act and Whistleblower Lawsuits

Qui Tam Whistleblower ClaimsThe stated goal of the Affordable Care Act (ACA), also known as “Obamacare,” is to make healthcare affordable for the general public. With healthcare spending in the U.S in 2013 totaling $3 billion dollars, and projected to rise 6% annually, one can understand that healthcare costs are quite burdensome for individuals, families, and businesses.

While the ACA as a whole has received much media attention, one important aspect of the act has not. This portion of the law involves the enhancement of the False Claims Act (FCA) by which qui tam or whistleblower lawsuits are brought by individuals. These lawsuits bring fraudulent billing and other false claims in the healthcare industry to light. The FCA enables the government, with the help of private whistleblowers, to recover significant dollars that were fraudulently claimed as healthcare expenses. In 2013, some $2.6 billion was recovered from healthcare fraud cases.

While qui tam or whistleblower cases may be risky, whistleblowers do have an incentive to come forward with information regarding false claims and fraud against the government. Whistleblowers can receive 15-30% of what the government is able to recover as a result of a qui tam or whistleblower lawsuit. In 2013, FCA whistleblowers received $345 in incentive awards. This financial incentive is necessary to encourage private individuals to come forward, often at great personal sacrifice and expense, with information that helps taxpayers recoup billions of dollars lost annually to healthcare fraud, and to help ensure that fraud is minimized in these cases.

For more information regarding false claims and other fraudulent conduct the FCA prohibits healthcare facilities, providers, and drug manufacturers from engaging in, take a look at the The Affordable Care Act and Qui Tam Whistleblower Claims. This concise article, co-authored by Atlanta attorney Jay Brownstein, is quite informative on the topic.

Filed Under: All Postings, Billing Fraud, Featured, General News, Healthcare Costs, Healthcare Fraud, Whistleblower Claims
posted on May 16, 2014 by

Bedsore Prevention and Awareness

Pressure ulcers or decubitus ulcers, commonly referred to as bedsores, are serious and sometimes fatal injuries typically afflicting the elderly, bedridden and wheelchair populations including stroke victims, paralysis and dementia patients. Most bedsores occur in hospital or nursing home settings. With proper care and prevention, however, the risk of bedsores and resulting complications can be greatly reduced, if not eliminated, for at-risk patients.

High risk population for bedsoresWhat is a pressure ulcer or bedsore?

A pressure ulcer or bedsore is as an area of unrelieved pressure in a defined area, usually over a bony prominence (such as the tailbone, ankle or elbow), resulting in ischemia, cell death, and tissue necrosis. Essentially, the pressure prevents blood from getting to the tissue, which breaks down and eventually dies. Once a bedsore develops, depending upon age, nutrition and other medical factors, the skin may not heal and a life-threatening systemic infection can result. Risk factors for pressure ulcers include inactivity, immobility, diabetes, advanced age, impaired cognition, and bowel or bladder incontinence.

Pressure ulcers are classified and treated according to clinical “stage” based on certain criteria. Assigning a pressure ulcer stage is based on visual inspection to determine the extent of tissue destruction and wound depth. Pressure ulcer staging also requires an understanding of the anatomy of skin and underlying tissues. In stage I, the skin is not broken but is red or discolored without fading thirty (30) minutes after pressure is removed. By stage II, the topmost layer of skin is broken, creating a shallow, open, painful sore.  A stage III pressure ulcer is a full-thickness skin loss involving damage or necrosis of the underlying tissue that may extend down to, but not through, muscle or bone. Drainage may or may not be present in stage II and stage III pressure ulcers. Stage IV describes a pressure ulcer involving extensive destruction of tissue with tissue necrosis or damage to muscle, bone, or supporting structures. Usually, dead tissue and drainage are present in stage IV pressure ulcers.

According to the National Quality Forum, a non-partisan consortium of healthcare professionals and organizations, stage III and IV and unstageable pressure ulcers that develop after admission to a facility are considered Serious Reportable Events (SRE) that are preventable and should never occur. Unfortunately, bedridden, wheelchair bound and other at-risk patients don’t always receive the necessary care to prevent pressure ulcers. All too often, infected pressure ulcers lead to systems failures and ultimately death for at-risk patients at hospitals, nursing homes, acute and long-term care facilities. According to the National Pressure Ulcer Advisory Panel, a non-profit devoted to the prevention and care of pressure ulcers, each year approximately 2.5 million patients are treated for pressure ulcers in U.S. acute care facilities and as many as 60,000 U.S. hospital patients die each year from pressure ulcer complications.

Causes and prevention of bedsores

Pressure ulcers or bedsores are commonly caused by a combination of four factors: pressure, shearing forces, friction and moisture. The key to prevention is pressure reduction.

Good skin care begins with an initial risk assessment and the creation of a skin care plan specifically tailored to the patient’s condition and setting. Prevention of skin breakdown, pressure ulcers and tissue or blood infections is an essential aspect of care. Upon admission to a hospital, acute care or other facility, patients should be evaluated by a physician, qualified nurse of other medical professional for the risk of skin breakdown taking into account numerous variables and risk factors. Thereafter, regular skin assessments should be performed on a regular basis (daily in an acute care setting), especially if a skin problem is suspected or has been observed. Initial and periodic assessments should contain accurate measurements of the length, width, and depth of a wound. Drainage type, color and odor, and the color of wound tissue should be noted, as well as staging of the wound.

At a minimum, patients identified as at-risk for skin breakdown should be repositioned at least every two (2) hours. However, regular repositioning may not be enough for patients at higher risk levels or if a pressure ulcer has already formed. A pressure-reducing surface like a foam or inflatable mattress cushion should be used for those patients. To minimize the risk of skin breakdown from shearing forces, the head of the bed should be maintained at the lowest degree of elevation necessary based on medical conditions and other factors. Friction injuries may be reduced by the use of protective dressings and barriers. Pressure ulcers must be kept clean, dry and protected from sources of contamination such as feces and urine. This typically requires frequent cleaning of the patient and changing of the wound dressing.

What to look for?

Pressure ulcers can develop quickly – within days or even hours – depending on a patient’s condition and setting. The most common site where pressure ulcers occur in bedridden patients is the buttocks area, over the tailbone. Because of this, developing bedsores may be difficult to detect for family members not involved in the daily care of a patient. There are, however, certain observable factors and symptoms might indicate the presence of a bedsore warranting further examination and treatment. They can include:

  • lengthy period of immobility
  • generalized or local discomfort or pain when not being moved or touched
  • generalized or local discomfort or pain when being repositioned, turned, or moved
  • foul odor from of undetermined origin
  • evidence of lack of proper turning or re-positioning
  • poor hydration and/or nutrition
  • lack of proper hygiene and cleaning of incontinent patients

What to do?

If you suspect that a family member or loved one is at-risk or suffering from a bedsore, you should immediately notify the healthcare professionals in charge of their care. Proactive oversight and management of your loved one’s care is the best way to ensure they are receiving the proper care.

If your loved one is the victim of negligent care resulting in a pressure ulcer or decubitus, contact the experienced Atlanta Georgia elder care, bedsore and medical malpractice attorneys at Brownstein & Nguyen today for a free consultation. We handle cases involving preventable bedsores and the serious health complications and deaths that result. We’ll confidentially review the case, and discuss your legal rights with you.

Filed Under: All Postings, Elder Care/Malpractice, Healthcare Costs, Personal Injury, Preventable Infections
posted on February 20, 2013 by

Deferred Action for Childhood Arrivals

On June 15, 2012, President Obama announced that the Department of Homeland Security would defer the removal of certain undocumented youth for two years. Eligible applicants would also receive employment authorization during the two year period.  The Department of Homeland Security began accepting applications on August 15, 2012. For more details concerning this program, click here.

To be eligible for this program, you must:

  • Have been born on or after June 16, 1981.
  • Have come to the United States before your sixteenth birthday.
  • Have continuously lived in the U.S. since June 15, 2007.
  • Have been present in the U.S. on June 15, 2012, and on every day since August 15, 2012
  • Not have lawful immigration status. To meet this requirement (1) you must have entered the U.S. without papers before June 15, 2012, or, if you entered lawfully, your lawful immigration status must have expired as of June 15, 2012; and (2) you must not have lawful immigration status at the time of your application.
  • Be at least 15 years old. If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may request deferred action even if you are not yet 15 years old.
  • Have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, be an honorably discharged veteran of the Coast Guard or U.S. armed forces, or “be in school” on the date that you submit your deferred action application. See below for more information about meeting the “be in school” requirement.
  • Have not been convicted of a felony offense. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.
  • Have not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses. Click here for more information about offenses that may disqualify you.
  • Not pose a threat to national security or public safety. (DHS is still defining what these terms mean but has indicated that they include gang membership, participation in criminal activities, or participation in activities that threaten the U.S.)
  • Pass a background check.

Deferred action is only temporary, and does not lead to lawful permanent residence or U.S. citizenship.

If you think that you may qualify for this program, contact us.  We have successfully applied for this type of benefit and obtained approval for clients as quickly as 2 months.  It is very important that you discuss your case with a qualified attorney before applying.

Filed Under: All Postings, Immigration, Immigration Law