The health care fraud, bank/mortgage fraud and securities fraud practitioner should be aware of 18 U.S.C. § 1345, a law which permits the federal government to file a civil action to enjoin the commission or imminent commission of a federal health care offense, bank-mortgage offense, securities offense, and other offenses under Title 18, Chapter 63. Otherwise known as the federal Fraud Injunction Statute, it also authorizes a court to freeze the assets of persons or entities who have obtained property as a result of a past or ongoing federal bank violations, health care violations, securities violations, or other covered federal offenses. This statutory authority to restrain such conduct and to freeze a defendant’s assets is powerful tool in the federal government’s arsenal for combating fraud. Section 1345 has not been widely used by the federal government in the past in connection with its fraud prosecution of health and hospital care, bank-mortgage and securities cases, however, when an action is filed by the government, it can have a tremendous effect on the outcome of such cases. Health and hospital care fraud lawyers, bank and mortgage fraud attorneys, and securities fraud law firms must understand that when a defendant’s assets are frozen, the defendant’s ability to maintain a defense can be fundamentally impaired. The white collar criminal defense attorney should advise his health and hospital care, bank-mortgage and securities clients that parallel civil injunctive proceedings can be brought by federal prosecutors simultaneously with a criminal indictment involving one of the covered offenses.

Section 1345 authorizes the U.S. Attorney General to commence a civil action in any Federal court to enjoin a person from:

• violating or about to violate 18 U.S.C. §§ 287, 1001, 1341-1351, and 371 (involving a conspiracy to defraud the United States or any agency thereof)
• committing or about to commit a banking law violation, or
• committing or about to commit a Federal health care offense.

Section 1345 further provides that the U.S. Attorney General may obtain an injunction (without bond) or restraining order prohibiting a person from alienating, withdrawing, transferring, removing, dissipating, or disposing property obtained as a result of a banking law violation, securities law violation or a federal healthcare offense or property which is traceable to such violation. The court must proceed immediately to a hearing and determination of any such action, and may enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. Generally, a proceeding under Section 1345 is governed by the Federal Rules of Civil Procedure, except when an indictment has been returned against the defendant, in which such case discovery is governed by the Federal Rules of Criminal Procedure.

The government successfully invoked Section 1345 in the federal healthcare fraud case of United States v. Bisig, et al., Civil Action No. 1:00-cv-335-JDT-WTL (S.D.In.). The case was initiated as a qui tam by a Relator, FDSI, which was a private company engaged in the detection and prosecution of false and improper billing practices involving Medicaid. FDSI was hired by the State of Indiana and given access to Indiana’s Medicaid billing database. After investigating co-defendant Home Pharm, FDSI filed a qui tam action in February, 2000, pursuant to the civil False Claims Act, 31 U.S.C. §§ 3729, et seq. The government soon joined FDSI’s investigation of Home Pharm and Ms. Bisig, and, in January, 2001, the United States filed an action under 18 U.S.C. § 1345 to enjoin the ongoing criminal fraud and to freeze the assets of Home Pharm and Peggy and Philip Bisig. In 2002, an indictment was returned against Ms. Bisig and Home Pharm. In March, 2003, a superseding indictment was filed in the criminal prosecution charging Ms. Bisig and/or Home Pharm with four counts of violating 18 U.S.C. § 1347, one count of Unlawful Payment of Kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(2)(A), and one count of mail fraud in violation of 18 U.S.C. § 1341. The superseding indictment also asserted a criminal forfeiture allegation that certain property of Ms. Bisig and Home Pharm was subject to forfeiture to the United States pursuant to 18 U.S.C. § 982(a)(7). Pursuant to her guilty plea agreement, Ms. Bisig agreed to forfeit various pieces of real and personal property that were acquired by her personally during her scheme, as well as the assets of Home Pharm. The United States seized about $265,000 from the injunctive action and recovered about $916,000 in property forfeited in the criminal action. The court held that the relator could participate in the proceeds of the recovered assets because the relator’s rights in the forfeiture proceedings were governed by 31 U.S.C. § 3730(c)(5), which provides that a relator maintains the “same rights” in an alternate proceeding as it would have had in the qui tam proceeding.

A key issue when Section 1345 is invoked is the scope of the assets which may be frozen. Under § 1345(a)(2), the property or proceeds of a fraudulent federal healthcare offense, bank offense or securities offense must be “traceable to such violation” in order to be frozen. United States v. DBB, Inc., 180 F.3d 1277, 1280-1281 (11th Cir. 1999); United States v. Brown, 988 F.2d 658, 664 (6th Cir. 1993); United States v. Fang, 937 F.Supp. 1186, 1194 (D.Md. 1996) (any assets to be frozen must be traceable to the allegedly illicit activity in some way); United States v. Quadro Corp., 916 F.Supp. 613, 619 (E.D.Tex. 1996) (court may only freeze assets which the government has proven to be related to the alleged scheme). Even though the government may seek treble damages against a defendant pursuant to the civil False Claims Act, the amount of treble damages and civil monetary penalties does not determine the amount of assets which may be frozen. Again, only those proceeds which are traceable to the criminal offense may be frozen under the statute. United States v. Sriram, 147 F.Supp.2d 914 (N.D.Il. 2001).

The majority of courts have found that injunctive relief under the statute does not require the court to make a traditional balancing analysis under Rule 65 of the Federal Rules of Civil Procedure. Id. No proof of irreparable harm, inadequacy of other remedies, or balancing of interest is required because the mere fact that the statute was passed implies that violation will necessarily harm the public and should be restrained when necessary. Id. The government need only prove, by a preponderance of the evidence standard, that an offense has occurred. Id. However, other courts have balanced the traditional injunctive relief factors when faced with an action under Section 1345. United States v. Hoffman, 560 F.Supp.2d 772 (D.Minn. 2008). Those factors are (1) the threat of irreparable harm to the movant in the absence of relief, (2) the balance between that harm and the harm that the relief would cause to the other litigants, (3) the likelihood of the movant’s ultimate success on the merits and (4) the public interest, and the movant bears the burden of proof concerning each factor. Id.; United States v. Williams, 476 F.Supp2d 1368 (M.D.Fl. 2007). No single factor is determinative, and the primary question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined. If the threat of irreparable harm to the movant is slight when compared to likely injury to the other party, the movant carries a particularly heavy burden of showing a likelihood of success on the merits. Id.

In the Hoffman case, the government presented evidence of the following facts to the court:

• Beginning in June 2006, the Hoffman defendants created entities to purchase apartment buildings, convert them into condominiums and sell the individual condominiums for sizable profit.

• To finance the venture, the Hoffman defendants and others deceptively obtained mortgages from financial institutions and mortgage lenders in the names of third parties, and the Hoffmans directed the third party buyers to cooperating mortgage brokers to apply for mortgages.

• The subject loan applications contained multiple material false statements, including inflation of the buyers’ income and bank account balances, failure to list other properties being purchased at or near the time of the current property, failure to disclose other mortgages or liabilities and false characterization of the source of down payment provided at closing.

• The Hoffman defendants used this method from January to August 2007 to purchase over 50 properties.

• Generally, the Hoffmans inherited or placed renters in the condominium units, received their rental payments and then paid the rent to third-party buyers to be applied as mortgage payments. The Hoffmans and others routinely diverted portions of such rental payments, often causing the third-party buyers to become delinquent on the mortgage payments.

• The United States believe that the amount traceable to defendants’ fraudulent activities is approximately $5.5 million.

While the court recognized that the appointment of a receiver was an extraordinary remedy, the court determined that it was appropriate at the time. The Hoffman court found that there was a complex financial structure which involved straw buyers and a possible legitimate business coexisting with fraudulent schemes and that a neutral party was necessary to administer the properties due to the potential for rent skimming and foreclosures.

Like other injunctions, the defendant subject to an injunction under Section 1345 is subject to contempt proceedings in the event of a violation of such injunction. United States v. Smith, 502 F.Supp.2d 852 (D.Minn. 2007) (defendant found guilty of criminal contempt for withdrawing money from a bank account that had been frozen under 18 U.S.C. § 1345 and placed under a receivership).

If the defendant prevails in an action filed by the government under the Section 1345, the defendant may be entitled to attorney’s fees and costs under the Equal Access to Justice Act (EAJA). United States v. Cacho-Bonilla, 206 F.Supp.2d 204 (D.P.R. 2002). EAJA allows a court to award costs, fees and other expenses to a prevailing private party in litigation against the United States unless the court finds that the government’s position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). In order to be eligible for a fee award under the EAJA, the defendant must establish (1) that it is the prevailing party; (2) that the government’s position was not substantially justified; and (3) that no special circumstances make an award unjust; and the fee application must be submitted to the court, supported by an itemized statement, within 30 days of the final judgment. Cacho-Bonilla, supra.

Healthcare fraud attorneys, bank and mortgage fraud law firms, and securities fraud lawyers should be cognizant of the government’s authority under the Fraud Injunction Statute. The federal government’s ability to file a civil action to enjoin the commission or imminent commission of federal health care fraud offenses, bank fraud offenses, securities fraud offenses, and other offenses under Chapter 63 of Title 18 of the United States Code, and to freeze a defendant’s assets can dramatically change the course of a case. While Section 1345 has been infrequently used by the federal government in the past, there is a growing recognition by federal prosecutors that prosecutions involving healthcare, bank-mortgage and securities offenses can be more effective when an ancillary action under the Section 1345 is instigated by the government. Health and hospital care lawyers, bank and mortgage attorneys, and securities law firms must understand that when a defendant’s assets are frozen, the defendant’s ability to maintain a defense can be greatly imperiled.

Hospice fraud in South Carolina and the United States is an increasing problem as the number of hospice patients has exploded over the past few years. From 2004 to 2008, the number of patients receiving hospice care in the United States grew almost 40% to nearly 1.5 million, and of the 2.5 million people who died in 2008, nearly one million were hospice patients. The overwhelming majority of people receiving hospice care receive federal benefits from the federal government through the Medicare or Medicaid programs. The health care providers who provide hospice services traditionally enroll in the Medicare and Medicaid programs in order to qualify to receive payments under these government programs for services rendered to Medicare and Medicaid eligible patients.

While most hospice health care organizations provide appropriate and ethical treatment for their hospice patients, because hospice eligibility under Medicare and Medicaid involves clinical judgments which may result in the payments of large sums of money from the federal government, there are tremendous opportunities for fraudulent practices and false billing claims by unscrupulous hospice care providers. As recent federal hospice fraud enforcement actions have demonstrated, the number of health care companies and individuals who are willing to try to defraud the Medicare and Medicaid hospice benefits programs is on the rise.

A recent example of hospice fraud involving a South Carolina hospice is Southern Care, Inc., a hospice company that in 2009 paid $24.7 million to settle an FCA case. The defendant operated hospices in 14 other states, too, including Alabama, Georgia, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Ohio, Pennsylvania, Texas, Virginia and Wisconsin. The alleged frauds were that patients were not eligible for hospice, to wit, were not terminally ill, lack of documentation of terminal illnesses, and that the company marketed to potential patients with the promise of free medications, supplies, and the provision of home health aides. Southern Care also entered into a 5-year Corporate Integrity Agreement with the OIG as part of the settlement. The qui tam relators received almost $5 million.

Understanding the Consequences of Hospice Fraud and Whistleblower Actions

U.S. and South Carolina consumers, including hospice patients and their family members, and health care employees who are employed in the hospice industry, as well as their SC lawyers and attorneys, should familiarize themselves with the basics of the hospice care industry, hospice eligibility under the Medicare and Medicaid programs, and hospice fraud schemes that have developed across the country. Consumers need to protect themselves from unethical hospice providers, and hospice employees need to guard against knowingly or unwittingly participating in health care fraud against the federal government because they may subject themselves to administrative sanctions, including lengthy exclusions from working in an organization which receives federal funds, enormous civil monetary penalties and fines, and criminal sanctions, including incarceration. When a hospice employee discovers fraudulent conduct involving Medicare or Medicaid billings or claims, the employee should not participate in such behavior, and it is imperative that the unlawful conduct be reported to law enforcement and/or regulatory authorities. Not only does reporting such fraudulent Medicare or Medicaid practices shield the hospice employee from exposure to the foregoing administrative, civil and criminal sanctions, but hospice fraud whistleblowers may benefit financially under the reward provisions of the federal False Claims Act, 31 U.S.C. §§ 3729-3732, by bringing false claims suits, also known as qui tam or whistleblower suits, against their employers on behalf of the United States.

Types of Hospice Care Services

Hospice care is a type of health care service for patients who are terminally ill. Hospices also provide support services for the families of terminally ill patients. This care includes physical care and counseling. Hospice care is normally provided by a public agency or private company approved by Medicare and Medicaid. Hospice care is available for all age groups, including children, adults, and the elderly who are in the final stages of life. The purpose of hospice is to provide care for the terminally ill patient and his or her family and not to cure the terminal illness.

If a patient qualifies for hospice care, the patient can receive medical and support services, including nursing care, medical social services, doctor services, counseling, homemaker services, and other types of services. The hospice patient will have a team of doctors, nurses, home health aides, social workers, counselors and trained volunteers to help the patient and his or her family members cope with the symptoms and consequences of the terminal illness. While many hospice patients and their families can receive hospice care in the comfort of their home, if the hospice patient’s condition deteriorates, the patient can be transferred to a hospice facility, hospital, or nursing home to receive hospice care.

Hospice Care Statistics

The number of days that a patient receives hospice care is often referenced as the “length of stay” or “length of service.” The length of service is dependent on a number of different factors, including but not limited to, the type and stage of the disease, the quality of and access to health care providers before the hospice referral, and the timing of the hospice referral. In 2008, the median length of stay for hospice patients was about 21 days, the average length of stay was about 69 days, almost 35% of hospice patients died or were discharged within 7 days of the hospice referral, and only about 12% of hospice patients survived longer than 180 days.

Most hospice care patients receive hospice care in private homes (40%). Other locations where hospice services are provided are nursing homes (22%), residential facilities (6%), hospice inpatient facilities (21%), and acute care hospitals (10%). Hospice patients are generally the elderly, and hospice age group percentages are 34 years or less (1%), 35 – 64 years (16%), 65 – 74 years (16%), 75 – 84 years (29%), and over 85 years (38%). As for the terminal illness resulting in a hospice referral, cancer is the diagnosis for almost 40% of hospice patients, followed by debility unspecified (15%), heart disease (12%), dementia (11%), lung disease (8%), stroke (4%) and kidney disease (3%). Medicare pays the great majority of hospice care expenses (84%), followed by private insurance (8%), Medicaid (5%), charity care (1%) and self pay (1%).

As of 2008, there were approximately 4,700 locations which were providing hospice care in the United States, which represented about a 50% increase over ten years. There were about 3,700 companies and organizations which were providing hospice services in the United States. About half of the hospice care providers in the United States are for-profit organizations, and about half are non-profit organizations.
General Overview of the Medicare and Medicaid Programs

In 1965, Congress established the Medicare Program to provide health insurance for the elderly and disabled. Payments from the Medicare Program arise from the Medicare Trust fund, which is funded by government contributions and through payroll deductions from American workers. The Centers for Medicare and Medicaid Services (CMS), previously known as the Health Care Financing Administration (HCFA), is the federal agency within the United States Department of Health and Human Services (HHS) that administers the Medicare program and works in partnership with state governments to administer Medicaid.

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South Carolina whistleblowers who are employed by a South Carolina state government agency are protected from adverse employment actions when they timely report violations of state or federal laws or regulations or other wrongdoing. South Carolina attorneys, lawyers and law firms who represent SC state government whistleblowers should be aware of the protections afforded to these employees who are fired, demoted, suspended or otherwise subjected to an adverse action in reaction to a report of fraud or other wrongdoing by a public agency or one of its officers or employees. South Carolina whistleblower attorneys, lawyers and law firms should also be aware of the administrative requirements necessary to invoke the protections of the state’s anti-retaliation statute, as well as the relief provisions afforded to such SC whistleblowers. There are also some whistleblower protections for government and private employees who report violations of South Carolina’s occupational safety and health statutes, rules or regulations.

South Carolina’s Whistleblower Protection Act for State Government Employees

South Carolina’s General Assembly enacted legislation called the “Employment Protection for Reports of Violations of State or Federal Law or Regulation” (the “Act”) to protect South Carolina state employees from retaliation or disciplinary actions when they report violations of state or federal laws or regulations or other wrongdoing including fraud and abuse. See South Carolina Code § 8-27-10, et seq. The Act prohibits a South Carolina public body from decreasing the compensation of, or dismissing, suspending or demoting, a state employee based on the employee’s filing of a protected report of wrongdoing with an appropriate authority. S.C. Code § 8-27-20(A). The protected report must be made by the SC whistleblower in good faith and not be a mere technical violation. Id. The Act does not apply to private, non-government employers or employees. S.C. Code § 8-27-50.

A public body under the Act means one of the following South Carolina entities: (A) a department of the State; (B) a state board, commission, committee, agency, or authority; (C) a public or governmental body or political subdivision of the State, including counties, municipalities, school districts, or special purpose or public service districts; (D) an organization, corporation, or agency supported in whole or in part by public funds or expending public funds; or, (E) a quasi-governmental body of the State and its political subdivisions. S.C. Code § 8-27-10(1).

A South Carolina employee under the Act is an employee of any South Carolina public body entity, generally excluding those state executives whose appointment or employment is subject to Senate confirmation. S.C. Code § 8-27-10(2).

An appropriate authority under the Act means either (A) the public body that employs the whistleblower making the protected report, or (B) a federal, state, or local governmental body, agency, or organization having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics, or wrongdoing, including but not limited to, the South Carolina Law Enforcement Division (“SLED”), a County Solicitor’s Office, the State Ethics Commission, the State Auditor, the Legislative Audit Council (the “LAC”), and the Office of Attorney General (the “SCAG”). S.C. Code § 8-27-10(3). When a protected report is made to an entity other than the public body employing the whistleblower making the report, the Act requires that the employing public body be notified as soon as practicable by the entity that received the report. Id.

A SC whistleblower employee’s protected report under the Act is a written document alleging waste or wrongdoing which is made within sixty (60) days of the date the reporting employee first learns of the alleged wrongdoing, and which includes (a) the date of disclosure; (b) the name of the employee making the report; and, (c) the nature of the wrongdoing and the date or range of dates on which the wrongdoing allegedly occurred. S.C. Code § 8-27-10(4).

Pursuant to the Act, a reportable wrongdoing is any action by a public body which results in substantial abuse, misuse, destruction, or loss of substantial public funds or public resources, including allegations that a public employee has intentionally violated federal or state statutory law or regulations or other political subdivision ordinances or regulations or a code of ethics, S.C. Code § 8-27-10(5). A violation which is merely technical or of a de minimus nature is not a “wrongdoing” under the Act. Id.

Rewards for SC Whistleblowers

When a SC state employee blows the whistle on fraudulent or abusive acts or violations of federal, state or local laws, rules or regulations, and the protected report results in savings of public funds for the state of South Carolina, the whistleblower is entitled to a reward or bounty under the Act. However, the reward is extremely limited. The provisions of the Act provide that a SC whistleblower is entitled to the lesser of Two Thousand Dollars ($2,000) or twenty-five percent (25%) of the estimated money saved by the state in the first year of the whistleblowing employee’s report. The South Carolina State Budget and Control Board determines the amount of the monetary reward that is to be paid to the employee who is eligible for the reward as a result of filing a protected report. See S.C. Code § 8-27-20(B). This reward is very meager when compared to the bounty provisions of the federal False Claims Act, 31 U.S.C. §§ 3729-3732 (the “FCA”). The FCA allows a qui tam whistleblower or relator to receive up to 30% of the total amount of the government’s recovery against defendants who have made false and fraudulent claims for payment to the United States. Some recent federal FCA recoveries by the U.S. Department of Justice have exceeded $1 Billion Dollars.

However, the Act does not supersede the State Employee Suggestion Program, and if a whistleblower employee’s agency participates in the State Employee Suggestion Program, then items identified as involving “wrongdoing” must be referred as a suggestion to the program by the employee. A South Carolina government employee is entitled to only one reward either under the Act or under the State Employee Suggestion Program, at the employee’s option. Id.

There are several things you must remember when you are entering into an asbestos mesothelioma lawsuit, but the most important of these is to get a good attorney / lawyer to help you. The right attorney / lawyer for an asbestos mesothelioma lawsuit has two qualities which can help you a lot:

Knowledge – This is the main reason why people hire lawyers. When you get an attorney/lawyer for an asbestos mesothelioma lawsuit, it is because of the fact that you do not have the expertise needed to handle the lawsuit on your own. An attorney/lawyer for an asbestos mesothelioma lawsuit will be familiar with the law in order to best help you win your case. Not many people realize the fact that different lawyers have different specializations. You need to make sure that the attorney/lawyer for an asbestos mesothelioma lawsuit you get actually specializes in that sort of law. Knowledge will help the attorney/lawyer for an asbestos mesothelioma lawsuit in planning a strategy to get you the justice that you need.

Experience – How much experience the attorney/lawyer for an asbestos mesothelioma lawsuit has in handling cases like yours determines just how effective he or she can be in the actual litigation. This is because experience will actually help determine a person’s ability to cope with the things going on around him or her. In other words, a person with more experience in handling asbestos cases have a higher chance of being able to make the right decisions in a similar case. If you want to hire a attorney/lawyer for an asbestos mesothelioma lawsuit, then know that a lot of lawyers make use of what you would call gut instinct in order to win a case. This gut instinct helps a lawyer recognize the various pitfalls that can be set by an opponent during the course of a lawsuit. This gut instinct, however, needs experience in order to be properly sharpened. Given enough experience, any attorney/lawyer for an asbestos mesothelioma lawsuit will be able to win any cases that he or she handles.

A lot of attorneys today are on the lookout for a client to represent so that they can grab a share of the asbestos-litigation pie. This means that looking for an attorney/lawyer for an asbestos mesothelioma lawsuit should be quite easy. Here are some sources you can make use of:

The television – Because of the mass-tort nature of asbestos litigation, most attorney/lawyer for an asbestos mesothelioma lawsuits today attempt to gather clients using any sort of ad media they can use. If you watch the television often, you might encounter a scrolling announcement asking for people who have experienced different symptoms and who have been exposed to asbestos to contact a certain number immediately. Since the television is the most widely-used type of media today, it has a high success rate in terms of attracting new clients. This means that you may be able to learn how to get in touch with an attorney/lawyer for an asbestos mesothelioma lawsuit through watching the television.

The internet – this remains to be one of the best sources of information today. The internet is able to provide people with the information that they need right at their fingertips and at a speed which will astonish even the Flash. You can use the internet to look for the attorney/lawyer for an asbestos mesothelioma lawsuit that you need. Also, you can immediately contact that person through the internet without the need to change into another medium of communication.

Getting an attorney /l awyer for an asbestos mesothelioma lawsuit through the internet does have its risks, though. For one thing, you aren’t really sure about the various claims made by different firms advertising over the internet.

Yellow Pages – If you want to get in touch with any attorney/lawyer for an asbestos mesothelioma lawsuit without first having the privilege of previewing their services, then the phone book is what you need. Some people believe that the phone book is an old and therefore obsolete device better left in the past decade, but it actually pretty much still delivers the information that you need whenever and wherever you need it.

There are, of course, other sources which you can use to gather information needed to contact the attorney/lawyer for an asbestos mesothelioma lawsuit you need. However those mentioned above continue to be the most effective methods of all.