Author Archives: Sean Garza

• posted: May 06, 2019
• Janie Ratliff
• Healthcare Law
• investigation,  licenses,  patient billings,  prescriptions

Counterintuitive as it seems, it is possible to commit fraud without actual intent. If you and your staff lack careful billing and oversight processes, you could come under investigation for Medicare/Medicaid fraud.

If you bill for 30 patients on a given day but you actually only saw 20, the 10 phantom patient billings are patently fraudulent. But even a simple mistake or oversight, such as a billing clerk including a procedure code for a patient who didn’t receive that service, can be suspect. This could happen if your staff is accustomed to billing certain codes together and they assume you provided the same services to a particular patient when, in fact, you didn’t.

Another common issue is lapsed licenses. If you have a medical provider in your office — such as a doctor, nurse or technician — they should not be working during any lapse in their license, even as short as a day. Insurance companies routinely check license information during claims processing, and such a finding would tarnish billing to all your patients for that day, including those on Medicare and Medicaid. Regulators consider billed services by an unlicensed provider as services that never happened.

Similarly, if you operate a practice but are not present or readily available while certain patients are being treated, billing for those services could be deemed fraudulent because they lacked supervision.

Prescription billing is another area fraught with risk. If you billed for a prescription that the patient never received, it could be deemed fraudulent. To avoid inadvertent billing, have a system in place to flag billed prescriptions that were never picked up.

Physicians sometimes find themselves on the wrong side of the law due to financial arrangements that could be considered kickbacks or self-referrals, such as having a financial interest in another practice to which patients are referred. Even giving small gifts to patients could get you in trouble if the gifts are deemed a reward for continuing to use your services.

With the high risk of fraud investigations arising from inadvertent mistakes, it makes sense to work with a skilled lawyer to devise a compliance plan. If you have concerns about an aspect of managing your practice, contact a knowledgeable healthcare attorney at Hemmer DeFrank Wessels, PLLC.

 

• posted: May 13, 2019
• Janie Ratliff
• Business Law
• medical practice,  Medical records law in Kentucky,  records storage

Written By: Janie Ratliff-Sweeney

The time has come to close a chapter and move on from your medical practice. But closing down a physician’s office doesn’t just involve business concerns like notifying personnel or selling equipment. Doctors must also worry about the fate of their patient records.

If you are a Kentucky doctor closing your practice, be sure to notify patients and offer to send copies of their records to another physician of their own choosing. The Kentucky Medical Association recommends notifying patients 60 to 90 days before you close your practice.

For patients who do not opt to have their records sent to a successor physician, records should be retained for storage with a custodian, who may be another physician or a commercial service. An experienced attorney can draft a custodial agreement, which should include such details as:

• the length of time records should be retained
• a requirement that you and your patients may continue to access records
• a requirement to notify the closing practice if the custodian’s contact information changes
• any fees associated with record maintenance
• compliance with state and federal regulations pertaining to patients’ records

How long records should be retained depends on several factors. According to American Medical Association ethics guidelines, physicians have an obligation to retain patient records “which may reasonably be of value to a patient.”

For practical reasons, records should be kept for at least as long as the limitations period for medical malpractice claims. Kentucky’s statute of repose says that a medical malpractice lawsuit must be filed within five years of the date a negligent act or omission is said to have occurred.

Doctors participating in Medicare and in Kentucky’s Medicaid program must retain records for five years from the date of a patient’s discharge.

For patients who don‘t respond to the notification that your practice is closing, a second notice should be sent toward the end of the 90 days, informing them of the storage location of their records or, in the case of records older than five years, that the records will be destroyed.

Compliance with the Health Insurance Portability and Accountability Act is critical as well. HIPAA’s patient privacy protections apply to storage — and destruction — of records. For older records that need to be destroyed, consider contracting a records destruction service to properly destroy paper or other media (such as CDs and flash drives) to ensure patient data remains protected.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

• posted: Dec. 02, 2019
• Todd McMurtry
• Defamation

Dear Friend of Nicholas Sandmann:

I wanted to let you know that the Fidelis Center for Law and Policy has agreed to raise money to help Nicholas and his family cover the costs associated with bringing lawsuits against the mainstream media outlets such as the Washington Post, CNN, and NBC Universal.  These costs include hiring experts, paying the costs to discover written and electronic records, the cost to take depositions, and travel costs.  The money raised in this campaign, net of expenses, will go directly to pay only costs.  My co-counsel, Lin Wood, and I are not paid by these funds. So, the money you contributed goes directly to reducing the Sandmann family’s costs.

Thank you for your support of Nicholas Sandmann and his family.

Sincerely,

Todd McMurtry

Legal Counsel for Nicholas Sandmann

 

• posted: Dec. 15, 2019
• Todd McMurtry
• Business Law
• cyberattacks,  cybersecurity,  doxing,  internet security,  social media

An aggravated consumer, industry rival, former employee or another person who is upset with your company may try to exact revenge by use of “doxing” — the practice of gathering a person or entity’s personal information and publishing it online. This may include sensitive information about the finances, health, residence, political affiliation, family and private lives of executives and employees at targeted organizations. Whether performed by an experienced hacker or an amateur sleuth, doxing can take a serious toll on a company, leaving it and its employees vulnerable to embarrassment and possible financial injury.

Doxing is distinguishable from defamation, which is the publication of false information about a person or entity. The danger from doxing is that the information released is true but sensitive. Unfortunately, there is a wealth of data that can be legally obtained online by clever searchers.

Fortunately, there are ways to help prevent hackers from finding the information they want. Cyber security professionals recommend the following actions:

• Provide digital security training for employees — Create standard protocols for Internet activity and teach information-protection practices to employees. This helps prevent the release of information that should remain private.
• Limit what is shared on social media — People with bad intentions can latch onto one detail your employee posts online and use it to uncover much more about the person’s life. Changing social media privacy settings can limit access to identifying data points — like addresses, employers, schools and email addresses — making it harder to track you on other platforms.
• Use encryption tools — A hacker who accesses someone’s computer system may obtain important data and metadata from documents like Word, Excel and Powerpoint files. Documents and communications should be encrypted to keep their contents virtually inaccessible to anyone except the intended recipient.
• Use strong passwords and vary them — Passwords are the keys to your data online, yet many users favor simple passwords that are easy to remember and, worse, include identifying information. Security experts recommend long passwords with a mix of numbers, symbols and upper- and lower-case letters. Also, use different ones for different accounts.
• Update computer security — Internet firewall and antivirus software should be frequently updated. New versions are issued frequently to keep ahead of hackers that learn to exploit security weaknesses and mine hard drives for data.

Doxing may warrant civil legal action or criminal charges, depending on the type of information released, the means used to acquire the information, the intent of the publisher and the reputation damage or other harm inflicted.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

• posted: Jan. 02, 2020
• Stephanie Wittmann
• Uncategorized

Hemmer DeFrank Wessels PLLC is pleased to announce Kyle M. Winslow has been elected to partnership effective January 1, 2020.

A member of the firm’s litigation practice group, Kyle concentrates his practice on representing individuals and businesses in complex business disputes, business divorce, and plaintiffs’ defamation matters.

Outside of the firm, Kyle was appointed in 2018 by the Governor of the Commonwealth of Kentucky to the Executive Branch Ethics Commission.  He recently completed a three-year term as a board member of the Northern Kentucky Bar Association.  Kyle is licensed in state and federal courts in Kentucky, and Ohio, and Indiana, and received his J.D. from the University of Cincinnati College of Law.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

• posted: Feb. 15, 2021
• J. Will Huber
• Business Law
• central authority,  hague convention,  serve,  service-of-process

Correct service of process is a basic and vital part of initiating a lawsuit. In American jurisprudence, courts need to know that defendants have received actual notice of the existence of lawsuits filed against them. Service of process on a foreign person or entity can be complicated but must be completed properly or the plaintiff risks having the suit dismissed.

The United States is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. The purpose of the Hague Convention is to formalize serving lawsuit papers and other documents in a timely and simple manner to ensure that foreign persons or entities sued in another country receive actual notice of legal actions against them.

Under the Hague Convention, signatories designate a “central authority” to accept documents to be served on persons or entities in that country who are named as defendants. The central authority then effects service on those parties according to local law and provides proof of service to the plaintiffs.

It is important for plaintiffs and their business lawyers who are suing foreign persons or entities in the United States to be aware of the service-of-process laws in the country where the named defendants are situated. Under Alternative A of the Hague Convention, parties may directly serve documents by mail on other parties to the suit if permitted by the country where the defendant lives. If a country does not permit direct service by mail, the serving party must serve legal documents through the central authority. In some countries, the central authority requires that the legal documents to be served are in that country’s official language.

If the country in which a defendant resides is not party to the Hague Convention, Kentucky law permits service of process through registered mail.

Another way to effect service of process on a foreign entity is to serve that entity’s registered agent in the United States. If there is no registered agent, the foreign entity’s subsidiary may be served if it is an actual or apparent agent of the corporate parent and the corporate parent exercises dominion or control over the subsidiary.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

• posted: Dec. 07, 2017
• Kyle M. Winslow
• Uncategorized

Written By: Kyle M. Winslow

Today, appearance of lawyers on a pro hac vice basis is more common than ever.  Our law firm serves as local counsel for out-of-state attorneys in a variety of litigation cases.  Additionally, we often work with local counsel who serve our clients in other jurisdictions.  Because of the time-sensitive nature of litigation, this article seeks to simplify the pro hac vice procedure in Kentucky state and federal courts.

Admission to practice before a Kentucky state court

Out-of-state lawyers who are not licensed to practice law in the Commonwealth of Kentucky and seek to appear before a Kentucky court must comply with Kentucky’s pro hac vice rule, Supreme Court Rule (“SCR”) 3.030.

First, the attorney seeking admission must submit a pro hac vice certification form through the Kentucky Bar Association (“KBA”).  This form can be found here. At the same time, the KBA requires a per case/per attorney fee in the amount of $310, plus an administrative processing fee of $10.85.

Second, the party wishing for counsel to appear pro hac vice must file a motion requesting permission for its out-of-state lawyer to appear in the case.  While SCR 3.030 does not explicitly state that a motion is required, it implies as much. SCR 3.030(2) (“No motion for permission to practice…shall be granted without submission…of a certification from the Kentucky Bar Association of receipt of this fee”) (emphasis added).  The motion must contain specific information to ensure compliance with SCR 3.030.  Prudent attorneys typically attach an affidavit with the following statements from the attorney seeking pro hac vice admission:

• The lawyer subjects himself or herself to the jurisdiction and rules of the Supreme Court of Kentucky.
• The lawyer paid the one-time per case fee required by SCR 3.030. The motion or the affidavit must attach a certification from the KBA of receipt of this fee.  The receipt is in the form of an invoice sent from the KBA.
• The lawyer has engaged a member of the KBA as co-counsel.
• The Kentucky attorney serving as co-counsel will attend all trials and will be present at any other times when required by the court.

In addition to the above, the party seeking admission of an out-of-state lawyer should also review the applicable local rules to determine if any additional requirements exist.

Admission to practice in Kentucky federal courts

Joint Local Rule 83.2 governs pro hac vice admission in Kentucky federal courts.

Local Rule 83.2 also requires a party wishing for counsel to appear pro hac vice to file a motion.  The attorney seeking admission must also pay a pro hac vice admission fee in the amount of $125 to the Clerk of Court.  Unlike the state-court requirements, a lawyer seeking pro hac vice admission does not need to pay the one-time case fee imposed by the KBA for state-court cases.  Additionally, the federal fee is paid when you submit the motion through the court’s electronic filing system.  Accordingly, fee payment and filing of the motion can be completed in one process.

Like the state-court motion, a motion for pro hac vice admission must include specific information.  An affidavit should be attached to the motion with the following statements from the attorney seeking pro hac vice admission:

• Identification of each bar in which the attorney is a member. Additionally, the attorney must attach a certificate of good standing issued by the highest court of the state in which the attorney is a resident.  The certificate of good standing must be issued no more than ninety (90) days before the filing of the motion.
• Whether the attorney is currently or has ever been disbarred, suspended from practice, or subject to other disciplinary action by any court, state, territory, or the District of Columbia.
• That the attorney consents to be subject to the jurisdiction and rules of the Kentucky Supreme Court governing professional conduct.
• Identification of the method of training completed by the attorney before the use of the Court’s electronic filing system. For those attorneys who have been trained on the federal electronic filing system, we simply state that the attorney “has been trained on the use of the CM/ECF systems by the other federal courts in which he has been admitted to practice and has a working familiarity with CM/ECF systems employed by the federal courts.”

A party’s compliance with the above requirements should pave the way to pro hac vice admission.  It bears mentioning, however, that judges require strict compliance with the admission requirements.  In fact, at a recent “cattle-call” docket, the author of this article observed a judge deny multiple pro hac vice motions for failure to attach the KBA receipt.  Additionally, this office has seen federal judges deny opposing parties motions for pro hac vice admission for failure to attach the requisite certificate of good standing.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; mickey@finneylawfirm.isoc.net; 513.797.2850.

 

• posted: Oct. 19, 2017
• Janie Ratliff
• Uncategorized

Written By: Janie Ratliff-Sweeney

True Story:  I recently met with a client who had a disgruntled ex-employee file a complaint with the Office of Civil Rights (the enforcement arm of the HIPAA Privacy and Security Rules) alleging violations of the HIPAA Privacy Rules by the client.  The client had experienced an inadvertent disclosure of protected health information (PHI) more than a year prior to the ex-employee’s filing of the OCR complaint.  The specific facts about the inadvertent disclosure of the PHI are not particularly unusual or sexy – an email containing the PHI of several patients was sent in error to the wrong email address.  These types of inadvertent disclosures are bound to happen.  Once the client learned of the email incident, it took what it considered appropriate action at the time and then filed away the incident to gather dust.  Unfortunately, the ex-employee too had filed away the incident – only to blow off the dust and resurrect it in a complaint filed with the OCR.  According to the OCR inquiry letter received by the client, the ex-employee alleged the client had not acted in compliance with HIPAA in its response to the email incident.  The OCR inquiry letter also contained the usual “data request” portion which required the client to submit to the OCR copies of its written policies and procedures related to safeguarding PHI, breaches, notifications of breaches, and the like.  So, the client not only faced defending its actions arising out of an incident from more than a year prior; the client had to also provide copies of its written policies and procedures.  After filing its response to the OCR, the client now sits and waits for its actions and documents to be judged by the OCR.  If the OCR judges the actions and/or documents of the client are not adequate or violated HIPAA, on to the next step:  the levying of fines.  But, regardless as to whether the client’s actions were HIPAA compliant, the client expended valuable resources (time and money) in drafting a response to the OCR and in gathering its documents.

Fines: “Fines schmines!” you say.  “Cost of doing business!” you say.  Right?  Wrong.

Have you paid attention to the fines the OCR has doled out recently?  Ranging from hundreds of thousands of dollars to millions of dollars.  During March of 2016, the OCR levied more than $5 million dollars in one week!  Levied for things ranging from lost laptops to IT system hacks.  Depending on the facts and circumstances of the violation, fines can climb upwards of nearly $56,000 per violation.  Do you want to be the physician or practice/facility administrator trying to split hairs with the OCR as to what constitutes “one” violation when an email is inadvertently sent to the wrong addressee and the email contains the PHI of 100 patients?  If that’s “one” violation (and depending on the facts and circumstances), that may be a check for $56,000.  Phew!  If it’s 100 violations… well… you do the math.

That check to the OCR contains hard earned dollars that will not otherwise be available for distribution to the owners or employees of your practice or facility, or to pay any of your practice’s or facility’s anticipated expenses.  Of course, that amount does not include the cost of hiring a health care attorney conversant in the HIPAA Privacy Rules.  Such expertise is vital in any dealings with the OCR or when viewing your practice’s or facility’s compliance with HIPAA.

Let’s Test your HIPAA IQ – Query me the following:  Would you know what steps are required to be taken upon the discovery of an inadvertent disclosure of PHI?  Do you know what is involved with a HIPAA-complaint “risk assessment”?  Do you know whether notices must be sent to patients following an inadvertent disclosure of PHI?  If so, do you know what the requirements are as to the form and substance of such notices?  Do you know the time frame in which a practice must investigate and take action following its knowledge of an inadvertent disclosure of PHI?  When was the last time your employees received HIPAA initial training or re-fresher training?

If your answer to any of the above is “no” or “I don’t know”, you are subjecting your practice or facility to large fines – sticking your head in the sand will not solve the problem.  Taking on the “it won’t happen to me” attitude will also not solve the problem.  The reality is that OCR is ramping up enforcement actions and it is levying fines at will.

STUFF Happens – Humans are Human:  Human error.  It is rampant.  No matter how much training you conduct and no matter how many policies and procedures you have in place – stuff happens.  People make mistakes.

As such, it is prudent to understand what you need to do when a staff member in your practice or facility makes a mistake and sends that email to the wrong person.  It is prudent to have in place appropriate safeguards to prevent human error – but the fact of the matter is that it is impossible to wave a wand and suddenly make every single employee perfect and without error.

Stuff happens.

Be prepared.

Educate yourself.

Know what you are obligated to do when the PHI is inadvertently disclosed.  Know whether a breach has occurred.  Know what you have to do if a breach has occurred.  Know what a patient notification letter is required to contain.  Know the time frame within which a patient notice must be sent.  Know whether you have to notify the OCR immediately or at the end of the year.  Know whether you must notify the media.

As the FRAM man once said – “you can pay me now or pay me later”.  When it comes to HIPAA compliance, a little prevention on the front end will certainly minimize or eliminate fines on the back end.

Janie M. Ratliff-Sweeney is a health care lawyer.  You can reach Ms. Ratliff-Sweeney at (859) 344-1188 or jratliff@hemmerlaw.com.