SYLLABUS. HEALTH CARE FRAUD AND ABUSE LAW H 582 (3 Credits) Winter, 2018 Mondays, Wednesdays 10:30-12:00

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1 SYLLABUS HEALTH CARE FRAUD AND ABUSE LAW H 582 (3 Credits) Winter, 2018 Mondays, Wednesdays 10:30-12:00 R. TIMOTHY CRANDELL (253) RTCrandell@comcast.net Office Hours by Appointment Course Description: This course will explore how fraud pervades the health care industry. You will learn techniques used in prosecuting and defending allegations of fraud. We will study criminal and civil investigative techniques, prosecutorial methods, and defense strategies. As you can see by the course outline below, this course will familiarize you with essential tools, concepts, and techniques used in the assigned cases. As a balance to criminal prosecution, we will spend time learning about civil enforcement, both by regulatory agencies and by means of civil qui tam actions, to complete your understanding of the legal remedies for health care fraud. We also will examine patient abuse and insufficient services in long term care facilities as a corollary to fraudulent billing. Learning Objectives: The course is designed with the following objectives in mind: *Identification of the risk of investigation, prosecution, sentencing and attendant collateral consequences to a health care client who has come under the scrutiny of federal and state authorities. *Identification of federal and state authorities engaged in investigation and prosecution of health care fraud and abuse. *Familiarity with federal and state statutes and regulations governing both the criminal and civil processes involved. *Identification of the varieties of fraud in the health care delivery system. *Development of a theory of prosecution based on applicable laws as applied to specific facts, and development of the defense case aimed at deconstructing the prosecution s case. *Understanding the role of prosecutorial discretion from both a prosecution and defense perspective, and the role negotiation plays in case resolution. *Identification of issues involving abuse of vulnerable patients in long-term care facilities. Required Materials: There will be no course textbook. This course is taught through the use of selected case law and required readings focusing on the topic of health care fraud and abuse. You are expected to read all material marked by an asterisk. The unmarked material is recommended reading that will provide you with a fuller understanding of each topic under discussion. 1

2 Class Format: I expect the assigned required readings to be read and digested in preparation for class. There will be some lecture, but I anticipate a good deal of discussion and problem solving among class members. Exam and Grades: Your grade in this course will be determined by a final exam and your class participation. Conscientious participation may raise your final exam grade by one third of a step. Expected length of the closed exam is three hours. The final exam is currently scheduled for March 14 at 1:00 p.m. You are responsible for reviewing the exam schedule to determine if there are any changes. The exam schedule for this quarter is posted at Course Evaluation: Course evaluations are open online during the last week of classes. Class time will be made available on March 7 for filling out the evaluation. Please bring a laptop or mobile device to class on this date to participate in the evaluation. Cell Phones: Please mute your cell phones during class. The Law School s primary policy on exams, paper and use of computers is set out here:. Guests and Visitors: Guests and visitors are welcome. Law School Attendance Policy Under changes to ABA Accreditation Standard 304, adopted in August 2004, a law school shall require regular and punctual class attendance. At any time after the fifth week of a course (halfway through a summer session course), a student who has been determined by the instructor to have attended fewer than 80 percent of the class sessions in any course will be required to drop the course from his or her registration upon the instructor s so indicating to the Academic Services Office. An instructor may also impose stricter attendance standards or other sanctions for nonattendance, including lowering of a grade, provided that students are informed at the start of the course of the instructor s attendance rules and possible sanctions. Your grade will be reduced after three absences for any reason. Access and Accommodation Your experience in this class is important to me. If you have already established accommodations with Disability Resources for Students (DRS), please communicate your approved accommodations to me at your earliest convenience so we can discuss your needs in this course. If you have not yet established services through DRS, but have a temporary health condition or permanent disability that requires accommodations (conditions include but not limited to; mental health, attention-related, learning, vision, hearing, physical or health impacts), you are welcome to contact DRS at or uwdrs@uw.edu or disability@uw.edu. DRS offers resources 2

3 and coordinates reasonable accommodations for students with disabilities and/or temporary health conditions. Reasonable accommodations are established through an interactive process between you, your instructor(s) and DRS. It is the policy and practice of the University of Washington to create inclusive and accessible learning environments consistent with federal and state law. Calendar of Classes and Assignments: January 3, 2018 I. Introduction and Overview of Course Lecture II. Tools of Investigation Scope of Search/Probable Cause *People v. Hepner, 21 Cal. App. 4 th 761, 26 Cal. Rptr. 2d 417 (Cal. App. 2 Dist. 1994) Act of Production *Grand Jury v. Kuriansky, 69 N.Y. 2d 232, 505 N.E. 2d 925, 513 N.Y.S. 2d 399, cert. denied, 482 U.S. 929 (1987) January 8, 2018 Fifth Amendment Privilege * In re A. V. Jellen, 521 F.Supp 251(N.D. W.Va. 1981) People v. Ahmad, 126 Misc. 2d 410, 482 N.Y.S. 2d 958 (1984) Description of Items to be Seized * United States v. Hughes, 823 F.Supp. 593 (N.D. Ind. 1993) Scope of Grand Jury Subpoenas *In re August, 1993 Regular Grand Jury, 854 F.Supp. 1392, reconsideration denied, 854 F.Supp (S.D. Ind. 1994) Disclosure of Grand Jury Materials *Matter of Special March, 1981 Grand Jury, 753 F.2d 575 (7 th Cir. 1985) Special Inquiry Proceedings * Chapter RCW January 10, 2018 Administrative Subpoenas *Seymour v. Dept. of Health, 152 Wn. App. 156, 216 P.2d 1039 (2009) *HIPAA Subpoena, 18 U.S.C

4 * In re: Subpoena Duces Tecum, 228 F.3d 341 (4 th Cir., 2000) Civil Investigative Demand *31 U.S.C. 3733; RCW Seizure By Private Citizen/Employee *Commonwealth v. Dubin, 399 Pa. Super. 100, 581 A.2d 944 (1990), appeal denied, 588 A.2d 912 (1991) Consent People v. Del Gizzo, 594 N.Y.S. 2d 583 (Sup. 1993) *United States v. Moon, 513 F.3d 527 (6 th Cir. 2008) Plain View *United States v. Abdallah, 2007 WL (S.D. Tex.) (Not reported) III. Common Defense Strategies Statute of Limitations *United States v. Mermelstein, 487 F.Supp.2d 242 (E.D. N.Y. 2007) Mistake *People v. American Medical Centers of Mich., 118 Mich. App. 135, 324 N.W.2d 782 (1982), cert. denied, 464 U.S (1983) January 17, 2018 Entrapment *United States v. Levin, 973 F.2d 463 (6 th Cir. 1992) Confrontation Clause *United States v. Morgan, 505 F.3d 332 (5 th Cir. 2007) IV. Varieties of Fraud in the Health Care System Services Not Rendered *United States v. O Brien, 14 F.3d 703 (1 st Cir. 1994) State v. Williams, 179 Wisc.2d 80, 505 N.W.2d 468 (1993) Billing For More Extensive Services Than Rendered *United States v. Krizek, 859 F.Supp. 5 (D.D.C. 1994) 4

5 January 22, 2018 Fragmenting *Mecca v. Dowling, 620 N.Y.S.2d 584 (A.D. 3 Dept. 1994), appeal denied, 85 N.Y.2d 809, 628 N.Y.S.2d 52, 651 N.E.2d 920 (1995) Medically Unnecessary Services *United States v. Khan, 53 F.3d 507 (2d Cir. 1995) * United States v. McLean, 715 F.3d 129 (4 th Cir.2013) Quackery *United States v. Keller, 784 F.2d 1296 (6th Cir. 1986) Kickbacks and Self Referrals *United States v. Lipkis, 770 F.2d 1447 (9 th Cir. 1985) *United States v. Prince, 627 F. Supp. 2d 863 (W.D. Tenn. 2008) January 24, 2018 V. Use of Investigative Tools in Development of Medical Fraud Investigation and Prosecution Lecture and Discussion VI. Laws Commonly Employed in Health Care Prosecutions State Statutes: *RCW 9A , RCW , RCW , RCW , RCW , RCW 9A January 29, 2018 Federal Statutes: * 18 USC 1347, 18 USC 287, 18 USC 1001, 18 USC 1341, 18 USC 1343, 42 USC 1320a-7b, 18 USC 371, 18 USC 1956, 18 USC 1518 VII. Developing a Theory of Prosecution Knowledge/Willfullness *United States v. Laughlin, 26 F.3d 1523 (10 th Cir.), cert. dnied, 115 S.Ct. 428 (1994) *United States v. O Brien, 14 F.3d 703 (1 st Cir. 1994) January 31, 2018 *Ratzlaf v. United States, 510 U.S. 135 (1994) 5

6 *United States v. Jain, 93 F.3d 436 (8 th Cir. 1996) Reckless Indifference and Conscious Avoidance *United States v. Erickson, 75 F.3d 470 (9 th Cir. 1996) *United States v. Prince, 2008 WL (W.D. Tenn.)(Not reported) Constructive Knowledge *In re Wayne County Prosecutor, 121 Mich. App. 798, 329 N.W.2d 510 (1982) *State v. Quinn, 43 Wn. App. 696, 719 P.2d 936 (1986) February 5, 2018 Intent *State v. Williams, 179 Wis. 2d 80, 505 N.W.2d 468 (1993) *State v. Romero, 574 So. 2d 330 (1990) Good Faith *State v. Ager, 128 Wash. 2d 85 (1995) *State v. Harris, 154 Wn. App. 87, 224 P.2d 830 (2010) (Quinn-Britnall dissent only) Materiality *United States v. White, 27 F.3d 1531 (11 th Cir. 1994) Obstructing United States v. Hoffman-Vaile, 586 F.3d 1335 (11 th Cir. 2009) February 7, 2018 VIII. Medical Fraud Prosecution from a Defense Perspective: Guest Lecture February 12, 2018 IX. Pretrial Challenges 1994) Doctor/Patient Privilege *In re August,1993 Regular Grand Jury (Clinic Subpoena), 854 F.Supp (S.D.Ind. 6

7 *In re August, 1993 Regular Grand Jury(Hospital Subpoena), 854 F.Supp (S.D. Ind. 1994) * Duplicity *United States v. Sadlier, 649 F. Supp (D. Mass. 1986) Multiplicity *United States v. Diaz, 2008 WL (S.D. Fla.)(Not reported) Literal Truth *United States v. Isaacs, 539 F.2d 686 (9 th Cir. 1976) February 14, 2018 Void for Vagueness, *Healthscript v. State, 770 N.E.2d 810 (2002) Discussion of the Health Insurance Portability and Accountability Act (HIPAA) and applicability to criminal prosecution. United States v. Zhou, 678 F.3d 1110 (9 th Cir. 2012) February 21, 2018 X. Conduct of Trial Guest lecture on federal prosecution of health care crimes. February 26, 2018 Chronology of a prosecution: Lecture XI. Sentencing and Restitution *RCW 9.94A.760 *RCW *State v. Wiens, 77 Wn. App. 651 (1995) February 28, 2018 XII. Collateral Consequences Exclusion *Harkonen v. Sebelius, 2013 WL (N.D. Cal) 7

8 Kahn v. Inspector General, 848 F.Supp. 432 (S.D.N.Y. 1994) *42 CFR , 42 USC 1320a-7 Civil Monetary Penalties Law (CMPL) *42 USC 1320a-7a *Chapman v. United States v. Dept. of Health and Human Services, 821 F.2d 523 (10 th Cir. 1987) March 5, 2018 Guest lecture from state Office of Attorney General on state civil false claims act. Civil False Claims: Overview, federal and state *United States ex rel Fry v. Health Alliance, 2008 WL (S.D. Ohio) (Not reported) *United States v. Rogan, 459 F.Supp.2d 692(N.D. Ill. 2006); United States v. Rogan, 517 F.3d 449 (7 th Cir. 2008) United States v. Halper, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L. Ed. 2d 450 (1997) March 7, 2018 Forfeiture * United States v, Boesen, 473 F.Supp.2d 932 (S.D. Iowa, 2007) Licensure *RCW *Hardee v. State, 172 W.2d 1, 256 P.3d 339 (2011) Patient abuse in long term care facilities. XIII. Emerging Trends in Health Care Law: Lecture and review Materials on 2016 federal health care fraud Take Down. Evaluations (in class) 8

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