White Collar Defense

White Collar
Defense

At FIDJ, we represent businesses and individuals facing serious allegations of fraud, regulatory violations, and financial crimes. Whether responding to warning letters, defending grand jury targets, or navigating complex investigations by federal agencies like the DOJ, FDA, or FTC, our attorneys bring a deep understanding of highly regulated industries and criminal law to every case. When your reputation, liberty, and livelihood are on the line, we act swiftly, strategically, and with purpose.

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Practices > White Collar Defense

White Collar Defense

FIDJ provides comprehensive representation to highly regulated businesses, and in many cases, these businesses have entered complex disputes with state or federal governments requiring the intervention of competent counsel. These disputes can take many forms. In some cases, the government has sent correspondence to a regulated business advising the business that it has failed in some material way to comply with federal law. In many of these cases, such as those which begin with Cease and Desist Letters issued by state banking regulators and Warning Letters issued by the FDA, the issuing agency posts the correspondence on the internet, and the firm is then asked to respond with the utmost sensitivity and urgency. In other cases, the Federal Trade Commission (FTC) or the Department of Justice may announce itself to a regulated entity by issuing a Civil Investigative Demand (CID) or other formal demand for information, and in these cases, the firm is requested by its clients to determine what, exactly, is being investigated and why, and to work with the government in limiting the scope of the investigation so that it does not unduly burden the client’s business.

FIDJ also represents clients which are the subjects and targets of grand jury investigations. In these cases, the violation of law which the government believes to have occurred is normally of a very significant nature, and typically the government believes that the regulated entity violated the law with specific intent and in a manner that injured members of the public or the government itself.

When a client is the subject or target of a grand jury investigation, Mr. Ittleman is often retained for purposes of determining what is being investigated and how to most effectively minimize the potential fallout of the investigation. In these cases, Mr. Ittleman is required to develop a thorough understanding of the client’s business and the governing laws and regulations, and a good working relationship with the federal government and counsel to the other parties under investigation.

In many cases, both civil and criminal, litigation against the federal government is unavoidable, and the firm has been retained to serve as counsel in many such lawsuits. On the one hand, civil litigation may follow the government’s issuance of a warning letter, CID or cease and desist letter, where the government and regulated party cannot settle their dispute outside of court along mutually acceptable terms and especially where the regulated entity does not believe that it is subject to the agency’s jurisdiction. In these cases, the firm is often asked to sue the federal government in federal court in an effort to have the government’s conduct declared to be unlawful, and in other cases, the firm is called in for representation when the government has filed suit seeking to have the regulated entity’s conduct permanently enjoined. Litigating civil actions against the federal government requires the firm to possess a strong working knowledge of constitutional law, administrative law, and the rules governing litigation in federal court.

On the other hand, in the most extreme cases, a grand jury has returned an indictment alleging that a party under investigation has violated federal law in some material way, and the party then finds itself named as a defendant in a criminal case. In these circumstances, the firm is retained for purposes of challenging the grand jury’s indictment and vigorously defending clients in court. The firm has represented a host of defendants in federal criminal cases nationwide.

The white collar criminal defense attorneys at FIDJ have extensive experience defending clients accused of committing criminal tax violations, including tax evasion, tax fraud, false returns, tax conspiracies, willful failure to file tax returns, and willful failure to pay taxes. Prior to entering private practice, the firm’s managing partner, Mitchell S. Fuerst, Esq., worked as a trial attorney with the Internal Revenue Service’s Office of Chief Counsel in Chicago, and prosecuted numerous criminal tax cases to verdict. Since that time, Mr. Fuerst has worked in private practice and has led the firm’s criminal tax lawyers in their defense of clients charged with committing criminal tax violations.

Our criminal tax lawyers work closely with the firm’s transactional and regulatory attorneys, and bring a comprehensive understanding of their clients’ businesses to each of their criminal tax cases.

Indeed, a thorough understanding of each client’s business is mandatory in order to litigate about a client’s tax return (or lack thereof) in both civil and criminal settings. This comprehensive understanding of our clients’ businesses also helps us understand that, in virtually every case, our clients’ best interests are served when we help them avoid criminal indictment altogether. In order to do so, we directly engage with the IRS and appropriate U.S. attorneys with the aim of having the government decline criminal prosecution. Our hard-earned reputation for integrity and aggressiveness among federal prosecutors has allowed us to avoid indictments for our clients on numerous occasions.

However, in some cases, criminal indictments are unavoidable, either because a grand jury has returned an indictment before we have been retained, or because the bare facts of the case warrant criminal charges. In these cases, FIDJ’s criminal tax attorneys have the criminal litigation and tax experience necessary to obtain acquittals and favorable plea deals for our clients.

If you or your business has been accused of committing a criminal tax violation, we urge you to take immediate steps to retain competent counsel and get to work on developing your defense. You may contact our white collar criminal defense attorneys at any time by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have represented clients facing allegations of money laundering violations in a variety of contexts. Indeed, given the way Congress has written the federal money laundering laws, very few money laundering cases are the same, and the white collar criminal lawyers who handle money laundering cases must bring their knowledge of a host of laws and industries into every money laundering case they handle. FIDJ’s white collar criminal lawyers are uniquely suited to do so.

First, the federal money laundering statute, 18 U.S.C. § 1956(a), provides as follows:

(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(A) (i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under state or federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than 20 years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.

Clearly, the federal money laundering statute is a serious one which can lead to lengthy terms of incarceration and hefty fines. However, often overlooked in the public discussion of money laundering are the innumerable ways that the money laundering statute can be violated. Indeed, further down in the statute, Congress has created an exceptionally broad definition of “specified unlawful activity” – i.e. the criminal offenses the proceeds of which form the basis of a money laundering violation – so that virtually every crime imaginable can lead to a money laundering conviction; see 18 U.S.C. § 1956(c)(7). While money laundering is most often associated with drug trafficking convictions, money laundering offenses can also be associated with offenses such as bank fraud, wire fraud, mail fraud, healthcare fraud, bribery, smuggling, export violations, and dozens of others.

Thus, in order to defend against allegations of money laundering, white collar criminal defense attorneys must not only be skilled in the courtroom, they must also have an in-depth, sophisticated understanding of their clients’ businesses and business practices. Moreover, given the huge number of ways in which money laundering crimes can be committed, lawyers defending money laundering cases must be able to apply their knowledge of money laundering laws across industries, and may never see the same money laundering violation twice. Furthermore, particularly with respect to highly regulated businesses like healthcare providers and money services businesses, the lines separating criminal and lawful acts can often be blurry and subject to multiple interpretations. Money laundering attorneys must therefore be careful to never paint with too broad a brush: What violates the law in one industry may be commonplace in another, and every detail of the client’s business must be understood in context of the industry in which the client operates.

The white collar criminal defense attorneys at FIDJ bring a deep, sophisticated understanding of their clients’ businesses to every case that comes into the office. The firm’s unique foundation – offering comprehensive representation to highly regulated businesses – defends against money laundering allegations in a broad spectrum of industries. We take care to understand our clients, their businesses, criminal law, anti-money laundering law, and the various laws governing our clients’ businesses, as all of this is critical when defending against money laundering allegations, and we give every client the time and attention they deserve.

If you have been charged with or are under investigation for a money laundering violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of mail fraud and wire fraud, which are two of the most commonly used criminal statutes employed by prosecutors when indicting defendants in white collar criminal cases.

The mail fraud and wire fraud statutes, 18 USC § 1341 and 18 USC 1343, respectively, criminalize similar conduct. In short, the mail fraud statute criminalizes the act of using the United States Postal Service (or any private commercial interstate mail carrier, such as UPS or FedEx), during the course of a scheme to defraud, which typically involves a continuing series of intentional acts designed to defraud someone by attaining something of value through fraudulent or false promises, representations, or by intentionally parodying some future act.

The wire fraud statute is similar, but criminalizes the use of “wire, radio, or television communication in interstate or foreign commerce” for the purposes of executing a scheme to defraud or to obtain money by false or fraudulent pretenses. Wire fraud and mail fraud violations are both punishable by up to 20 years in prison and steep monetary fines.

In order to successfully prosecute a mail fraud or wire fraud case in court, the government must prove beyond a reasonable doubt that the defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. However, the government need not prove that the scheme to defraud was successful. Instead, the government has successfully prosecuted mail fraud and wire fraud cases based simply on the fact that the defendant’s “communications were reasonably calculated to deceive persons of ordinary prudence and comprehension.” Conversely, the government is required to prove that the defendants’ statements were material, which means that they had the natural tendency to influence or be capable of influencing the person to whom they were addressed. Convictions may also lie where the defendant attempted to defraud another, aided or abetted a scheme to defraud, or participated in a conspiracy to defraud.

Defending against allegations of mail fraud and wire fraud is hard work, but the white collar criminal defense attorneys at FIDJ have extensive experience doing so.Especially when defending clients operating in highly regulated industries, it is critical that white collar criminal defense attorney develop a thorough understanding of the client’s business. Indeed, it is the details of the client’s business – including the business itself, the industry in which the business operates, and the regulatory climate – which are oftentimes front and center in mail fraud and wire fraud prosecutions. Understanding these details is critical when mounting a defense.

Rarely do two businesses operate in the exact same way. Likewise, even businesses operating in the same or similar industries may describe themselves in completely different ways, and raise capital for themselves based upon varying representations. At the same time, mail fraud and wire fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against mail fraud and wire fraud prosecutions, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with convictions. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for mail fraud or wire fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of healthcare fraud of virtually every variety, including those involving private insurance companies, Medicare, Medicaid and Tricare.

In order to defend against an allegation of healthcare fraud, a white collar criminal defense attorney must bring to the case a sophisticated understanding of his client’s business, as well as the subtle distinctions which separate certain regulated businesses from others. In the case of healthcare fraud, which is an umbrella term covering a host of regulated businesses and schemes to defraud, the white collar criminal defense attorney must not only understand how home health agencies, skilled nursing facilities, doctors offices, pharmacies and durable medical equipment companies operate, he or she must also understand how each of those companies are compensated for those services.

Fortunately, FIDJ boasts a full service white collar criminal defense and healthcare practice. We represent a wide range of skilled nursing facilities, home health agencies, and other healthcare providers, and we assist them with day to day legal issues, audits, and reimbursement issues.

This experience not only allows us to communicate with the government when called upon to do so in administrative settings, but also to defend against grand jury investigations and criminal prosecutions. We are never overwhelmed by prescriptions, censuses, medical records, or internal memorandums, because we see those documents and appreciate their legal significance on a daily basis as part of our practice.

Rarely do healthcare providers operate in the exact same way. Likewise, the various branches of state and federal governments regulating healthcare providers have inconsistent requirements and apply them inconsistently. At the same time, healthcare fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against a healthcare fraud prosecution, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with a conviction. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for healthcare fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at Fuerst Ittleman David & Joseph have been retained to represent clients facing allegations of bank fraud violations in a variety of contexts.

First, the firm has represented numerous clients facing allegations of bank fraud in violation of 18 U.S.C. § 1344, which criminalize complex schemes to defraud banks and other financial institutions. Today, § 1344 has become a hugely popular tool for the government in white collar criminal cases, especially in the wake of the global financial crisis. In order to successfully prosecute a bank fraud violation under § 1344, the government must prove each of the following elements beyond a reasonable doubt:

  1. There was a scheme to defraud a bank or other financial institution [or] to obtain moneys, funds, credits, assets, securities, or other property owned by, or in the custody or control of, a bank or other financial institution by means of false or fraudulent pretenses, representations or promises; and
  2. The defendant knowingly executed the scheme; and
  3. The defendant acted with the intent to defraud; and
  4. The scheme involved a materially false or fraudulent pretense, representation, or promise

The firm has also represented clients facing allegations of bank fraud in violation of 18 U.S.C. § 1014, which was designed to criminalize a less outwardly sinister variety of criminal conduct than § 1344. To obtain a conviction under § 1014, the government must prove first that the defendant made a false statement or report, and second, that it was done so for the purpose of influencing in any way the action of [a described financial institution] upon any application…. Unlike § 1344, the government need not prove that the false statement was material.

Like the bank fraud statute, § 1014 carries a maximum fine of $1,000,000 and a maximum prison term of 30 years. However, unlike the bank fraud statute, in recent years, we have seen § 1014 increasingly applied in cases where the bank suffers no financial loss, and the only financial service obtained by the defendant is a checking account. While the issue seems simple, § 1014 cases often involve highly complex facts and circumstances, not necessarily about the misstatements made to the banks, but rather about the general circumstances in which the bank and customer find themselves.

If you or your business has been accused of violating either of these federal bank fraud statutes, we urge you to take immediate steps to retain competent counsel and get to work on developing your defense. You may contact our white collar criminal defense attorneys at any time by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 351 provides that drugs and devices will be deemed to be adulterated if they “consist in whole or part of any filthy, putrid or decomposed substance,” or if they have been prepared, packed or held in facilities which fail to comply with the standards set forth by federal law and regulation for FDA regulated drugs and devices.

Federal laws and regulations set forth with painstaking detail the applicable cleanliness standards for foods, drugs, medical devices, biologics and tobacco products, and our FDA practice group advises our clients regarding these standards on a daily basis.

Sometimes, however, FDA believes that an adulteration violation was committed intentionally, and in those cases, the FDA will pursue the violation criminally. Not surprisingly, the FDCA makes clear that the consequences of criminal adulteration violations are severe. As an example, 21 USC § 333(b)(7) provides that “any person that knowingly and intentionally taints a drug such that the drug is adulterated…and has a reasonable probability of causing serious adverse health consequences or death to humans or animals shall be imprisoned for not more than 20 years or fined not more than $1,000,000, or both.”

Clearly, criminal adulteration violations are serious and must be taken seriously. Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the manufacturing of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal adulteration violation, contact us now for a free consultation.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 352(f) provides that a drug will be deemed to be misbranded unless its labeling contains adequate directions for use, which typically requires the directions to allow a layperson to use the drug safely and for the purposes for which it was intended.

As with adulteration cases, the FDA can pursue misbranding cases criminally, and the consequences can be severe, especially when the FDA believes that the violation was committed with the intent to defraud or mislead. We routinely see criminal misbranding charges filed in cases involving unapproved new drugs, as well as those involving drugs which have been imported into the United States from other countries, including Canada.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the labeling of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal misbranding violation, contact us now for a free consultation.

The FDA can, and oftentimes does, prosecute cases criminally even when it does not believe that the violation was committed intentionally. Even though such violations may only be pursued as misdemeanors, the prosecution itself – as well as its collateral consequences – can be life altering, and the targets of these prosecutions should take them as seriously as felony prosecutions.

The Park Doctrine, which is named after a 1975 Supreme Court case called United States v. Park, provides that a “responsible corporate official” can be held liable for a first-time misdemeanor (and possible subsequent felony) under the FDCA without proof of intent or negligence, and even if the official did not have any actual knowledge of, or participation in, the specific offense.

Misdemeanor prosecution under the Act can be a valuable enforcement tool. Once a person has been convicted of an FDCA misdemeanor, any subsequent violation becomes a felony, even without proof that the defendant acted with the intent to defraud or mislead. Additionally, in many cases, a misdemeanor Park Doctrine conviction has served as the basis for debarment by FDA, meaning that the responsible corporate official was excluded from any participation in federal health care programs for as many as 12 years.

In addition to the individual’s position in the company and whether he or she had the authority to prevent or correct the violation, the FDA will also consider, when determining whether to bring a Park Doctrine indictment, the following list of relevant factors:

  1. Whether the violation involves actual or potential harm to the public;
  2. Whether the violation is obvious;
  3. Whether the violation reflects a pattern of illegal behavior and/or failure to heed prior warnings;
  4. Whether the violation is widespread;
  5. Whether the violation is serious;
  6. The quality of the legal and factual support for the proposed prosecution; and
  7. Whether the proposed prosecution is a prudent use of agency resources.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the operation of FDA-regulated companies, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a misdemeanor Park Doctrine violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

18 U.S.C. § 1960 proscribes the operation of an unlicensed money transmitting business, and provides that a five year prison sentence can attach to any such violation. Although simple on the surface, the federal government has employed this statute in a wide variety of settings leading to serious consequences for defendants facing allegations that they operated unlicensed money transmitting businesses.

18 U.S.C. § 1960 can be violated in three distinct ways. First, one can operate an unlicensed money transmitting business and thus violate the statute by operating a money transmitting business “without an appropriate money transmitting license in a state where such operation is punishable as a misdemeanor or a felony under state law…” Second, one can operate an unlicensed money transmitting business and thus violate the statute by failing to register the business with FinCEN as required by 31 U.S.C. § 5330. Finally, one can operate an unlicensed money transmitting business and thus violate the statute by processing “funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to promote or support unlawful activity.” So, in the third scenario, a defendant can be convicted of operating an unlicensed money transmitting business even if it was adequately licensed.

It is also critical to note that, in most cases, § 1960 is not a specific intent statute. As part of the Patriot Act, Congress amended § 1960(b)(1)(A) to provide that a defendant can be convicted of operating an unlicensed money transmitting business “whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable.” This makes the unlicensed money transmitting business statute an attractive one for prosecutors, as Congress has freed them of the obligation to prove beyond a reasonable doubt what was on the defendant’s mind at the time the act at issue in the case was committed.

The white collar criminal defense attorneys at FIDJ bring a unique perspective to their defense of cases involving allegations that clients operated unlicensed money transmitting businesses.

First, the firm is a correspondent member of the National Money Transmitters Association and a frequent sponsor of the International Money Transfer Conferences. Second, the firm’s lawyers are frequently called upon to lecture to domestic and international money transfer organizations regarding the laws governing money transmitters, and is widely viewed as a thought leader on the subject. Third, the firm’s lawyers are frequently retained by domestic and international financial institutions to give legal advice regarding whether they are money transmitting businesses and, if so, what registration and licensing requirements apply to their business. The firm also has extensive experience advising financial institutions regarding their anti-money laundering obligations, and has extensive experience litigating those issues in both civil and criminal cases. As such, even in cases where the government need not prove that a defendant intentionally violated the § 1960 statute, the firm is uniquely equipped to litigate the complex issue of whether the defendant operated a money transmitting business, licensed or otherwise.

If you have been charged with or are under investigation for operating an unlicensed money transmitting business, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience representing their clients in a wide variety of forfeiture cases at the state and federal level. FIDJ’s white collar lawyers bring their thorough understanding of criminal law and procedure, civil procedure, constitutional law and the rules of evidence into every forfeiture matter they handle, leading to highly competent representation and excellent results for our clients.

At the federal level, asset forfeiture law has two primary branches: criminal forfeiture and civil forfeiture. While both branches contain the word forfeiture, they are different and typically involve different proceedings and legal issues.

Criminal asset forfeiture is the more straightforward of the two varieties of forfeitures, and typically involves contraband, ill-gotten gains and instrumentalities which the government has seized as part of a criminal case. Examples of criminal forfeiture matters would be the litigation that ensues when the government seizes a house where drugs have been unlawfully manufactured, or the money held in a bank account of an unlicensed money transmitting business. In these cases, the criminal defendant will often waive his right to litigate the forfeiture portion of his criminal case, but third party owners of that property who have not been charged with a crime will often choose to litigate against the government to recover their property.

FIDJ has significant experience filing and pursuing claims on behalf of such innocent third parties. The other variety of forfeiture action is civil asset forfeiture, which many times involves law enforcement seizing property on mere suspicion of a crime, and then requiring the owner to prove the property’s innocence. In these cases, the lawsuit is pursued in rem (filed against the seized property) on the theory that it facilitated a crime and is thus forfeitable to the government. Unlike criminal forfeiture cases, the government may pursue a civil forfeiture action against a piece of property without necessarily pursuing a criminal case against an actual person. Litigating such cases can be highly difficult because the government’s burden is so low: the government can seize property for forfeiture because the property is alleged to have facilitated a crime, even if the crime itself is never proven, and even if no person is ever prosecuted.

We have also handled forfeiture cases at the state level, most notably in cases where the South Florida Money Laundering Strike Force has facilitated money or property said to be the proceeds of a criminal act. The South Florida Money Laundering Strike Force – which is organized by the Miami-Dade State Attorney’s Office and includes 17 South Florida police departments – supports its activities in large part by seizing and forfeiting the proceeds of allegedly unlawful activity, making civil forfeiture cases at the state level in Florida critically important.

In all forfeiture cases, lawyers must have a well-rounded understanding of the applicable law, including criminal law, constitutional law, civil procedure, and the rules of evidence. The white collar criminal defense attorneys at FIDJ bring a well-rounded understanding of the law to every case they handle, making the firm one of Florida’s leading asset forfeiture law firms.

If you need assistance pursuing a claim in a civil or criminal forfeiture action at the state or federal level, contact us for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

In addition to its full service white collar criminal defense practice, FIDJ handles a wide range of criminal appellate matters. Joseph A. DiRuzzo, III of FIDJ is one of only sixty lawyers in the State of Florida to be certified by the Florid Bar Board of Legal Specialization as an expert in the field of Criminal Appellate Litigation, meaning that he has met the Florida Bar’s rigorous certification qualifications and has undergone peer review for competence and professionalism in Criminal Appellate Law.

A Unique Area of Practice and Specialized Support for Trial Counsel

Our criminal appellate practice supports the criminal trial practice of our firm and the trial practices of criminal defense attorneys outside of our firm.

Our criminal appeals lawyers boast a well-rounded understanding of constitutional law, criminal procedure, appellate procedure, rules of evidence, and sentencing guidelines, and the firm’s understanding of these critical issues reveals itself in high quality legal briefs, oral arguments, and excellent results in high stakes cases.

Our criminal appeals attorneys have provided trial counsel with support in a wide range of criminal cases including criminal tax, bankruptcy fraud, securities fraud, bribery, and money laundering, and routinely confront complex cases involving Fourth Amendment violations, Title III wiretaps, criminal forfeiture and restitution, U.S. Sentencing Guideline errors, collateral attacks, and writs of habeas corpus.

In addition to FIDJ’s own work as trial counsel in complex white collar criminal cases, our expertise in litigating appeals of criminal convictions allows us to provide valuable support to trial counsel from other firms as well. Our team of skilled criminal appeals lawyers assists trial counsel, researching complex issues for presentation to the trial court ensuring that every appealable issue is properly preserved for appellate review. We work with trial counsel in drafting:

  1. motions to dismiss,
  2. motions to suppress,
  3. motions in limine,
  4. motions for judgment of acquittal,
  5. jury instructions, voir dire questions, and
  6. motions for new trial.

We also work with trial counsel to ensure the prosecution does not improperly use race, nationality, religion, gender, sexual orientation, or any other impermissible criteria that violate the client’s right to equal protection under the Fifth and Fourteenth Amendments (e.g. Batson challenges and reverse Batson challenges). In the heat of battle it is easy for trial counsel to be overwhelmed and overlook critical issues to preserve for appeal. We buttress trial counsel to ensure the client is provided with effective assistance of counsel.

If you or a loved one have been convicted and are seeking counsel for representation in an upcoming appeal, or if you (or trial counsel) would like for us to assist in trial level litigation, you can contact us for a free consultation at contact@fidjlaw.com or (305) 350-5690.

Practices > Anti-Money Laundering

Anti-Money Laundering

FIDJ’s Anti-Money Laundering practice covers a wide range of businesses and legal issues. Primarily, our AML attorneys advise domestic and international financial institutions regarding their anti-money laundering requirements as set forth by the Bank Secrecy Act and individual state laws. This advice can be delivered in a variety of forms, but typically involves explaining how the individual institution is defined by federal law, and then teaching the institution regarding its unique federally mandated compliance requirements. However, our clients often have more wide-ranging legal needs. Accordingly, our AML lawyers routinely assist clients in matters involving commercial litigation, white collar criminal defense, regulatory enforcement actions, and commercial transactions, as well as IRS-BSA audits, OFAC licensing issues, grand jury investigations, state investigations, criminal and civil litigation, and commercial transactions. Our anti-money laundering practice recognizes that regulatory compliance must at all times remain at the forefront of every financial institution’s attention, and regardless of the specific legal matter we are asked to address for our financial institution clients, we must also keep our focus on compliance.

In addition to advising banks, credit unions and money services businesses regarding their anti-money laundering obligations, our anti-money laundering attorneys have also advised casinos, pawnbrokers, vehicle and yacht sellers, art dealers, diamond and gold dealers, investment brokers, insurance companies, and real estate companies, as all of these companies have been deemed to be “financial institutions” under United States law. In addition to working closely with our clients so as to render the most precise possible anti-money laundering advice, we also have strategic relationships with third party anti-money laundering consultants to assist in the preparation of our clients’ anti-money laundering programs.

While anti-money laundering programs are critical, they must be narrowly tailored to protect against the unique money laundering and terrorist financing risks posed by the individual financial institution, and they must actually be implemented. Additionally, financial institution employees must be included as part of the program and given instructions regarding how to report suspicious activity. Finally, anti-money laundering programs must be strong enough to withstand not only internal and external reviews, but the scrutiny of federal and state regulators, which may have overlapping jurisdiction over the financial institution and both routinely audit for compliance with the federal and state money laundering laws. We work closely with a wide range of financial institutions on all of these important anti-money laundering issues.

FIDJ’s Anti-Money Laundering Compliance team is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist and frequently lectures to domestic and international audiences on a wide range of anti-money laundering issues.

If you have any questions related to your anti-money laundering compliance obligations, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Practices > Money Services Businesses

Money Services Businesses

“Money Services Business” (MSB) is an umbrella term covering a wide variety of businesses, including money transmitters, check cashers, dealers in foreign exchange (formerly known as currency exchangers and currency dealers), sellers and providers of prepaid access, and issuers, sellers and redeemers of money orders and travelers checks. MSBs are typically required to register with FinCEN and become licensed in the individual states, depending upon the nature of the MSB’s business and the state or states in which it operates, services customers, or has bank accounts. The MSB lawyers at FIDJ are knowledgeable of these requirements and can provide critical assistance on a wide array of legal and regulatory matters, including:

  • State licensing issues, including license applications and legal opinions regarding state licensing laws;
  • State and federal compliance audits, including IRS/BSA examinations;
  • State and federal enforcement actions, including those seeking to impose fines and revoke licenses;
  • OFAC licensing issues;
  • Anti-money laundering and Bank Secrecy Act compliance;
  • Law enforcement and Grand Jury subpoenas and investigations;
  • White collar criminal defense;
  • Corporate transactions;
  • Commercial litigation

Depending upon the nature of the MSB’s business and the state or states in which it operates, services customers, or has bank accounts, MSBs may have burdensome state law requirements which are sometimes vague and inconsistent, but are not to be overlooked as failure to comply with them can lead to devastating consequences. Not only can MSBs be barred from operating in states where they operate, but as an example, money transmitters (and their individual operators) can be criminally prosecuted for operating in a state without a license, regardless of their innocent intent.

FIDJ’s Money Services Business practice is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist and frequently lectures on a wide variety of issues facing the MSB industry to domestic and international trade groups.

If you have any questions related to your money services business, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Practices > Virtual Currencies Compliance

Virtual Currencies Compliance

Virtual currencies are ideal means of engaging in commercial transactions online. Virtual currency transactions are instant, immune from chargeback risk, and have developed a reputation for protecting user information in a manner vastly superior to credit cards and bank transfers. In spite of these attributes, virtual currencies have been the subject of intense government scrutiny since they first started circulating circa 1996. Virtual currencies (as well as their central issuers) have also been the targets of commercial lawsuits, civil forfeiture actions, grand jury investigations and criminal prosecutions based on a wide variety of allegations, including money laundering, fraud, unlicensed money transmitting business claims and a host of others. Thus, while there is no disputing the benefits of virtual currencies, they come with great risk, and those who issue virtual currencies or operate as commercial exchangers must always be mindful of their intense compliance obligations.

Today, Bitcoin is the world’s most popular virtual currency, though it is by no means the first. Between the time of its birth and March of 2013, Bitcoin and all other virtual currencies existed in an area of the law where there was no law.

That is not to say that Bitcoin issuers and users were not subject to the money laundering provisions of federal law if they used Bitcoin for unlawful purposes, but up until March 2013 the United States government had not decided how to regulate Bitcoin as a thing. Then, on March 18, the Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury issued its Guidance entitled, “Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies.” This was a watershed moment for the regulation of Bitcoin and other virtual currencies

A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter. In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.

FinCEN’s March 2013 guidance has made the following point crystal clear: if an entity is in the business of exchanging Bitcoin for “real currency” or vice versa, or accepts Bitcoin from one person and transmits the real currency equivalent to another person, that entity is a money transmitter and will be regulated as such in the United States, and will be subject to the criminal provisions of 18 USC 1960 for failing to register with the federal government as a money transmitter or being licensed in any state that would require a money transmitting license.

FinCEN’s regulatory scheme for Bitcoin dealers is also applicable to dealers operating outside of the United States. Thus, even assuming that a Bitcoin exchanger does not have a physical nexus in the United States, so long as the exchanger services people located in the United States, the exchanger will be regulated as a money transmitter. As FinCEN explained on July 18, 2011, and as we blogged shortly thereafter, FinCEN’s rules make foreign-located businesses engaging in MSB activities within the U.S. subject to U.S. law. As a result, even foreign based MSBs with no physical presence in the US can be classified as an MSB and thus subject to the rigorous requirements of the BSA. However, foreign banks as well as foreign financial agencies that engage in activities that if conducted in the US would require them to be registered with the SEC or CFTC are excluded from the definition of an MSB. As noted in the rule, “To permit foreign-located persons to engage in MSB activities within the United States and not subject such persons to the BSA would be unfair to MSBs physically located in the United States and would also undermine FinCEN’s efforts to protect the U.S. financial system from abuse.”

FIDJ has represented a wide array of financial services providers with the following critical legal and regulatory matters including:

  • State licensing issues, including license applications and legal opinions regarding state licensing laws;
  • State and federal compliance audits, including IRS/BSA examinations;
  • State and federal enforcement actions, including those seeking to impose fines and revoke licenses;
  • OFAC licensing issues;
  • Anti-money laundering and Bank Secrecy Act compliance;
  • Law enforcement and Grand Jury subpoenas and investigations;
  • White collar criminal defense;
  • Corporate transactions;
  • Commercial litigation

FIDJ’s Virtual Currencies Compliance team is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist, and frequently lectures on a wide variety of issues facing the MSB industry to domestic and international trade groups.

If you have any questions related to your bitcoin or virtual currency compliance, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Practices > Healthcare

Healthcare

FIDJ’s health care practice group provides comprehensive representation to health care providers in a wide array of forums, including matters involving regulatory issues, business transactions, and complex litigation. Our firm works closely with its clients to evaluate and implement strategies that meet their unique and complex legal needs.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide representation in all aspects of health law. We have successfully represented a wide variety of health care practitioners and facilities, including, but not limited to:

  • Physicians
  • Physician practice groups
  • Home health agencies
  • Skilled nursing facilities
  • Pharmacies
  • Pain management clinics

The health law attorneys at FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including:

  • Overpayment appeals
  • Cost report audit support and appeals
  • Medicaid Program Integrity audits and investigations
  • Prepayment reviews
  • Provider enrollment applications and appeals
  • AHCA survey appeals
  • Health care fraud investigations
  • HIPAA and FIPA compliance

Additionally, FIDJ’s health care, corporate, and tax attorneys work together to represent health care providers in various transactions including:

  • Practice restructuring and expansions
  • Mergers and acquisitions
  • Practitioner employment and Noncompetition Agreements
  • Incentive compensation arrangements

Our health care attorneys also advise and assist clients to ensure that they are fully compliant with a litany of laws including Anti-Kickback and STARK self-referral laws, among others. When necessary, FIDJ can provide aggressive, experienced litigation services in administrative, civil, and criminal litigation related to all these areas.

FIDJ also provides outside general counsel services to numerous health care entities.

For more information, please contact us at contact@fidjlaw.com, or call us directly at (305) 350-5690.

The health care practice group at FIDJ has experience in assisting clients in HIPAA implementation and compliance.

Our firm can assist your covered entity, or business associate, in ensuring that your company maintains the appropriate operations, policies, procedures, and systems to comply with HIPAA’s regulatory obligations.

Health Insurance Portability and Accountability Act (HIPAA), Pub. L. 104-191, was enacted to establish standards for maintaining the privacy and security of patient health records. HIPAA’s requirements apply to any individual, organization, or agency, which meets the definition of a “covered entity” and those entities’ “business associates,” which help the entities carry out their health care functions. “Covered entities” include health care providers, such as doctors, clinics, nursing homes and pharmacies. A complete definition of “covered entity” and “business associate” can be found at 45 C.F.R. § 160.103.

As part of HIPAA’s reforms, the Secretary of the United States Department of Health and Human Services (HHS) was required to develop regulations to assist in protecting both the privacy and security of certain health information. Towards this end, HHS published two series of regulations commonly known as the Privacy Rule and the Security Rule. The Privacy Rule, located at 45 C.F.R. Part 160 and subparts A and E of Part 164, establishes national standards for protection of personal health information and individuals’ medical records. The Privacy Rule established safeguards to protect the privacy of personal health information and established the circumstances under which disclosures of such information may be made without patient authorization. In addition, the Privacy Rule granted patients certain rights over access to their health information including the right to examine and obtain copies of their medical records and the right to request that corrections be made to mistakes within these records.

The Security Rule located at 45 C.F.R. Part 160, and subparts A and C of Part 164, establishes national standards for protecting electronic personal health information created, received, used, or maintained by a covered entity. The Security Rule works in tandem with the Privacy Rule by establishing the technical and non-technical safeguards that covered entities must have in place to protect electronic protected health information.

Violations of HIPAA can expose an entity to civil and potential criminal penalties. Within HHS, the Office of Civil Rights (OCR) has been given the responsibility of enforcing the Privacy and Security Rules through a variety of measures including the enforcement of civil monetary penalties. Penalties can range from $100 to $50,000 per violation depending on the circumstances of the case. However, prior to the imposition of a penalty, OCR will provide the covered entity an opportunity to submit written evidence on its behalf. Further, if OCR announces its intent to impose a civil monetary penalty, a covered entity has the right to request an administrative hearing. See generally, 45 C.F.R. Part 160 Subpart E.

Additionally, a person who knowingly obtains or discloses individually identifiable health information in violation of HIPAA’s Privacy Rule may face criminal penalties of up to $50,000 and up to one-year imprisonment. These penalties increase to $100,000, and up to five years imprisonment, should a violator’s wrongful conduct involve false pretenses, and to $250,000, and 10 years imprisonment, if the wrongful conduct involves the intent to sell, transfer, or use the identifiable health information for commercial advantage, personal gain, or malicious harm. The Department of Justice is responsible for the prosecution of criminal violations of HIPAA.

FIDJ’s health care practice group has experience in providing assistance to covered entities and their business associates to ensure HIPAA compliance. We also have extensive experience in representing entities in the administrative hearings and appeals process. Further, our white collar criminal practice group can provide aggressive, experienced litigation services regarding any potential criminal investigations or actions.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ can assist your covered entity in ensuring that your business maintains the appropriate operations, policies, procedures, and systems to comply with the Florida Information Privacy Act (FIPA).

On July 1, 2014, FIPA became effective replacing Florida’s previous data breach notification requirements. FIPA is comprehensive in nature, and addresses what “covered entities” and their “third-party agents” must do to protect “personal information,” and also sets forth what is required of such entities in the event of a breach. While the ideas behind FIPA and HIPAA are similar, the entities and data covered by the two laws are different. Unlike HIPAA, which only applies to health information, FIPA applies to all personal information regardless of what kind, or the nature of the company storing it. Thus, even though an entity may not fall within the federal HIPAA statute, it may nevertheless be governed by FIPA, and be subject to the full scope of the new state statutory scheme designed to protect personal information.

    1. Covered Entities, Third-Party Agents and Personal Information

FIPA governs a far more expansive list of “covered entities” than HIPAA. FIPA defines a “covered entity” as a “sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other commercial entity that acquires, maintains, stores, or uses ‘personal information,’” as per Fla. Stat. § 501.171(1)(b). A “third-party agent” is “an entity that has been contracted to maintain, store, or process personal information on behalf of a covered entity or governmental entity,” according to Fla. Stat. § 501.171(1)(h).

“Personal Information,” states Fla. Stat. § 501.171(1)(g)(1)(a), is defined as an individual’s first name, or first initial, and last name in combination with any one or more of the following data elements for that individual:

      • A Social Security number
      • A driver’s license or identification card number, passport number, or military identification
      • A financial account number or credit or debit card number with security codes or passwords
      • Any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional
      • An individual’s health insurance policy number or subscriber identification number and any unique identifier used by a health insurer to identify the individual.

“Personal information” also includes a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account, according to Fla. Stat. § 501.171(1)(g)(1(b). However, FIPA does not apply to personal information that is encrypted, secured, or modified so that the information is unusable in the event of a breach.

    1. Data Security Measures

FIPA requires that each covered entity, governmental entity, or third-party agent take reasonable measures to protect and secure data in electronic form containing personal information, as per Fla. Stat. § 501.171(2). Examples of reasonable measures would be encryption of data or de-identifying the data. In addition, FIPA requires covered entities and third-party agents to take all reasonable measures to dispose, or arrange for the disposal, of customer records containing such personal information. As explained in Fla. Stat. § 501.171(8), “such disposal shall involve shredding, erasing, or otherwise modifying the personal information in the records to make it unreadable or undecipherable through any means.”

    1. Breach Notification Requirements

FIPA establishes a series of people and authorities which must be contacted in the event of a breach as well as timeframes under which a covered entity or third-party agent must make such notifications. The notification requirements vary based on the size of the breach.

In all cases of a breach, cover entities must notify each individual whose personal information was accessed, or believed to be accessed, within 30 days after the discovery of a breach, states Fla. Stat. § 501.171(4)(a). However, an exemption exists in cases where “after an appropriate investigation and consultation with relevant federal, state, or local law enforcement agencies, the covered entity reasonably determines that the breach has not, and will not likely, result in identity theft or any other financial harm to the individuals whose personal information has been accessed” (Fla. Stat. § 501.171(4)(c). An exemption also exists if law enforcement determines that notice would interfere with a criminal investigation, according to Fla. Stat. § 501.171(4)(b).

When a breach affects 500 or more individuals in the state, covered entities must notify the Florida Department of Legal Affairs within 30 days of discovery of the breach. In such instances, a covered entity may receive an additional 15 days to provide the personal notification required under the statute should good cause exist. Such a requirement exists regardless of whether the covered entity determines that the breach is not likely to result in identity theft or other financial harm to the affected individuals states Fla. Stat. § 501.171(3).

In addition, according to Fla. Stat. § 501.171(5), in cases where the breach affects more than 1,000 individuals, the covered entity shall also notify, “without unreasonable delay,” all consumer credit reporting agencies that compile and maintain files on consumers under the Fair Credit Reporting Act.

In cases where data breaches occur at a third-party agent, the third-party agent shall notify the covered entity of the breach “as expeditiously as practicable, but no later than 10 days following the determination of the breach of security or reason to believe the breach occurred,” explains Fla. Stat. § 501.171(6). Once the third-party agent informs the covered entity, the covered entity shall proceed in providing the statutorily required notice.

It is important for companies who may also be considered covered entities under HIPAA to understand that the timeframes for reporting breaches are different under FIPA and HIPAA. Therefore, entities subject to both statutes must ensure adequate compliance with both in the event of a breach.

    1. Penalties

Violations of FIPA are treated as unfair and deceptive trade practices and allows the Florida Department of Legal Affairs to use any, and all, remedies available under Fla. Stat. § 501.207 of the Florida Deceptive and Unfair Trade Practices Act. Fla. Stat. § 501.171(9)(a).

In addition, covered entities face fines under FIPA for failing to provide the statutorily required notice. Here, rather than a per record basis fine structure, such as the one in place for HIPAA, FIPA civil penalties are based on the length of time an entity is not in compliance after a breach. Covered entities face civil penalties of up to $500,000 per breach calculated as follows: 1) $1,000 per day up to the first 30 days following any violation; 2) thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days (Fla. Stat. § 501.171(9)(b)).

FIPA expressly states that no private cause of action is established by the act. However, this does not mean that covered entities do not face a risk of private litigation in the event of a breach as common law causes of action, such as negligence, breach of contract, and breach of fiduciary duties, may still exist for damages caused by data breaches.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ’s health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the Anti-Kickback law. Our firm can also provide assistance with investigating possible violations of the Anti-Kickback law, which exist in your organization and in advising clients on corrective and remedial actions.

Generally speaking, the federal Anti-Kickback law, found at 42 U.S.C. § 1320a-7b(b), is a criminal statute that prohibits the offering, paying, soliciting or receiving of anything of value to induce or reward referrals, or to generate federal health care program business. The Anti-Kickback law is a criminal statute that is broadly defined, and establishes penalties for individuals and entities on both sides of the prohibited transaction.

    1. Anti-Kickback Law Prohibited Referrals

The Anti-Kickback law is a criminal statute that prohibits the knowing and willful offer, or payment of, and the knowing solicitation or receipt of “any remuneration directly, or indirectly, overtly or covertly, in cash or in kind,” to induce:

      1. referrals of patients
      2. the purchasing, leasing, ordering, or arranging for any good, facility, service or item paid for by a federal health care program (including Medicare and Medicaid).

While the Anti-Kickback law requires a knowing and willful violation of the law to establish liability, with the passage of the Patient Protection and Affordable Care Act, the Anti-Kickback law was amended to make clear that actual knowledge of an Anti-Kickback violation or the specific intent to commit a violation of the Anti-Kickback law is not required for conviction. Although the government is no longer required to prove that a defendant intended to violate the Ant-Kickback law itself, it must still prove that a criminal defendant intended to violate the law.

    1. Potential Penalties

Anti-Kickback law violations can subject a violator to criminal, civil, and administrative penalties. The Anti-Kickback law establishes that a violation of the law is a felony and can be punished by up to five years in prison and a fine of $25,000 per violation. Further, violators can be assessed civil monetary penalties of up to $50,000 per violation, and face an additional civil assessment of up to three times the amount of the kickback received.

In addition, Anti-Kickback law violations can result in the Secretary of Health and Human Services excluding a violator exclusion from acting as participating provider in a federal health care program. The effect of such an exclusion is that a provider can no longer receive payment for services from any federal health care program (including Medicare, Medicaid, and Tricare, among others) for services rendered. The Anti-Kickback law provides for mandatory exclusion if a violator is criminally convicted. Even negligent violations, which would not amount to criminal liability, can still result in a provider’s exclusion at the discretion of the Secretary.

    1. Anti-Kickback Law Safe Harbors

Due to the potential broad reach of the Anti-Kickback law into numerous transactions, the Office of Inspector General (OIG) of the United States Department of Health and Human Services has been granted authority to promulgate regulations, which exclude certain specific business and financial practices from criminal and civil prosecution under the act. These exclusions, known as “safe harbors,” are found at 42 C.F.R. § 1001.952.

For example, Anti-Kickback safe harbor transactions include, in part:

      1. investment interests
      2. space rental
      3. equipment rental
      4. personal services and management contracts
      5. referral services
      6. payments to bona fide employees
      7. physician recruitment efforts.

However, each safe harbor imposes precise and lengthy conditions for compliance in order for a transaction to fall within its scope. Thus, practitioners must evaluate each such transaction to ensure compliance.

Transactions which are neither specifically excluded or covered under a safe harbor regulation are not violations of the Anti-Kickback law per se. Instead, OIG evaluates such transactions on a case-by-case basis. In addition, parties who are uncertain whether their arrangements qualify for a safe harbor can request an advisory opinion from OIG.

The health law attorneys of FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including False Claims Act (qui tam cases) as well as violations of the Anti-Kickback and Stark self-referral laws, among others.

Our health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the Anti-Kickback law. In addition, FIDJ’s health care regulatory compliance attorneys have experience in reviewing and analyzing proposed transactions and arrangements to identify potential Anti-Kickback law pitfalls. We can also provide assistance with investigating possible violations of the Anti-Kickback law which exist in your organization, and in advising clients on corrective and remedial actions. When necessary, we can provide aggressive, experienced litigation services in civil and criminal actions related to these areas. FIDJ also handles provider acquisitions and offers strategic tax planning advice to health care providers and suppliers.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of health care law. Let us show you how we can help today.
For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of STARK Law compliance.

Generally speaking, the STARK Law, found at 42 U.S.C. § 1395nn, prohibits physicians from referring Medicare beneficiaries to an entity in which they, or an immediate family member, have a financial relationship for designated health services, unless an exception applies.

    1. STARK Basics

The STARK Law, which was passed in two parts, “STARK I” and “STARK II,” prohibits physicians from referring their Medicare and Medicaid patients to business entities in which the physicians or their immediate family members have a financial interest. More specifically, STARK prohibits physicians from making referrals to an entity for clinical lab services if the physician had a prohibited financial relationship with the entity. In addition, STARK prohibits physicians from referring Medicare patients for designated health services to an entity with which the physician (or immediate family member) has a financial relationship, unless an exception applies.

“Designated health services,” according to 42 U.S.C. § 1395nn(h)(6), include:

      1. Clinical laboratory services;
      2. Physical therapy service;
      3. Occupational therapy services;
      4. Radiology services;
      5. Radiation therapy services and supplies;
      6. Durable medical equipment and supplies;
      7. Parental and enteral nutrients, equipment, and supplies;
      8. Prosthetics, orthotics, and prosthetic devices and supplies;
      9. Home health services;
      10. Outpatient prescription drugs;
      11. Inpatient and outpatient hospital services;
      12. Outpatient speech-language pathology services.
    2. Financial Relationships and Prohibited Referrals

In order to understand STARK’s reach, it is important to understand how STARK defines a financial relationship and a referral.

The STARK Law broadly defines “financial relationships to include an ownership or investment interest in an entity or a compensation arrangement, states 42 U.S.C. § 1395nn(a). Compensation arrangement, in turn, is defined as “any arrangement involving any remuneration between a physician (or an immediate family member of such physician) and an entity” (42 U.S.C.§ 1395nn(h)(1)(A)). Remuneration, with certain exceptions not applicable to the instant case, includes, “any remuneration, directly or indirectly, overly or covertly, in cash or in kind” (42 U.S.C. § 1395nn(h)(1)(B)).

Referral, for purposes of the STARK Law, is defined as “the request or establishment of a plan of care by a physician, which includes the provision of designated health services,” states 42 U.S.C. § 1395nn(h)(5)(A). The regulations interpreting the statute also broadly define referral as, among other things, “a request by a physician that includes the provision of any designated health service for which payment may be made under Medicare, the establishment of a plan of care by a physician that includes the provision of such a designated health service, or the certifying or re-certifying of the need for such a designated health service” (42 C.F.R. § 411.351). A referring physician is defined in the same regulation as “a physician who makes a referral as defined in this section or who directs another person or entity to make a referral or who controls referrals made to another person or entity.”

    1. Potential Penalties

The STARK Law further provides that should any amounts be billed in violation of the act, the biller shall be liable for the overpayment and must refund that amount to the government, states 42 U.S.C. § 1395nn(g)(2). Violators of the STARK Law are subject to potential civil monetary penalties of up to $15,000 for each service billed.

In addition, violators also face potential False Claims Act (FCA), 31 U.S.C. § 3729 et seq., liability for knowingly submitting prohibited claims. Generally speaking, the FCA empowers private persons, known as relators, to file civil actions known as qui tam lawsuits and recover damages on behalf of the United States from any person who: 1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment; or 2) knowingly makes uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government. As it relates to this case, “[f]alsely certifying compliance with the STARK Law in connection with a claim submitted to a federally funded insurance program is actionable under [the FCA].”

    1. STARK’s Exceptions for Certain Compensation Arrangements

The STARK Law also provides for several exceptions to the broad general prohibition on compensation arrangements between health care entities and referring physicians. If a hospital’s financial relationship with a physician comes under one of the exceptions, then it is not prohibited under STARK. The complete list of compensation arrangements exceptions are found at 42 U.S.C. § 13955nn(e).

    1. Relationships impacted by the STARK Law

Due to STARK’s breadth, numerous health care business relationships can trigger the need for a STARK analysis. Depending on the nature and structure of the transaction, such health care relationships may include:

      1. physician employment and independent contractor agreements
      2. medical director agreements
      3. hospital/physician recruitment arrangements
      4. arrangements and agreements between physicians and other designated health service providers
      5. medical equipment and office space leasing agreements

In addition, STARK’s prohibitions also apply within a physician practice group setting. Thus, if a physician practice group provides multiple designated health services within its practice, STARK may be implicated and the relationship between the practice group and the individual physicians must comply with a STARK exception.

The health law attorneys of FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including False Claims Act (qui tam cases) as well as violations of the Anti-Kickback and STARK self-referral laws, among others. Our health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the STARK Law. In addition, FIDJ’s health care regulatory compliance attorneys have experience in reviewing and analyzing proposed transactions and arrangements to identify potential STARK Law pitfalls. We can can also provide assistance with investigating possible violations of the STARK Law which exist in your organization and in advising clients on corrective and remedial actions. When necessary, we can provide aggressive, experienced litigation services in civil and criminal actions related to these areas. FIDJ also handles provider acquisitions and provides strategic tax planning advice to health care providers and suppliers.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of health care law. Let us show you how we can help today.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ represents nursing homes in connection with state and federal surveys from inception through the appellate process.

Health care providers receiving Medicare and Medicaid reimbursement are subject to state and federal surveys aimed at determining substantial compliance with Conditions for Coverage (CfC) and Conditions of Participation (CoP). At a minimum, skilled nursing facilities (SNF) are subject to annual surveys once every 15 months. Typically, however, even the best SNFs will experience more frequent complaint surveys. In either event, the SNF is advised of its alleged deficient practices (if any) through the surveying agency’s issuance of a Statement of Deficiencies (Form CMS-2567). The provider has 10 calendar days to submit its Plan of Correction in response thereto.

An acceptable Plan of Correction must include five core elements:

  1. How corrective action will be accomplished for those residents found to have been affected by the deficient practice
  2. How the SNF will identify other residents having the potential to be affected by the same deficient practice
  3. What measure will be implemented (or systematic changes) to ensures the that deficient practice will not reoccur
  4. How the SNF plans to monitor its performance to make sure that solutions are sustained
  5. Dates when corrective action will be completed

Since Statements of Deficiency and Plans of Correction ultimately become available for public consumption, it is advisable that SNFs include a disclaimer in the Plan of Correction, where applicable, noting that the SNF denies and disputes the citation(s) and submits its Plan of Correction to comply with applicable state and federal regulations.

In the same 10 calendar days an SNF has to submit its Plan of Correction, it must also request Informal Dispute Resolution (IDR). IDR is the process by which SNFs can informally dispute regulatory deficiencies. It is important to note that neither the submission of a Plan of Correction nor the request for IDR tolls the time within which a Request for Hearing before an Administrative Law Judge (ALJ) must be filed (assuming that the SNF wishes to pursue its appellate rights).

Generally, a SNF has 60 days from receipt of its Statement of Deficiencies (Form CMS-2567) to file a timely Request for Hearing before an ALJ. At the ALJ level, the Centers for Medicare and Medicaid Services (CMS) has the initial burden of making a prima facie case of a regulatory violation. To that end, CMS may rely on the Statement of Deficiencies to make its prima facie case of a deficiency, but only if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable. If CMS meets its burden, the SNF then bears the burden of persuasion to demonstrate, by a preponderance of the evidence, that the SNF was, in fact, in substantial compliance.

Either CMS or the SNF may appeal an ALJ’s unfavorable decision to the Departmental Appeals Board (DAB). The failure of either party to file a timely appeal renders the ALJ decision final agency action. An unfavorable decision of the DAB may be appealed to the federal district courts and, ultimately, the U.S. Courts of Appeals.

FIDJ’s health care practice group has the experience necessary to guide you through each stage of the survey process, from the issuance of the Statement of Deficiencies through the appellate process. For more information call (305) 350-5690 or email contact@fidjlaw.com .

FIDJ serves as outside general counsel to many of its clients, affording such clients the benefits of an “on-call” attorney with a mutually beneficial fee structure, without the expensive overhead of an in-house attorney.

There comes a time when every business, from the start-up to the large privately-held entity, needs the guidance and counsel of an experienced attorney and the legal expertise necessary to accomplish multidisciplinary transactional work and complex litigation. Yet, many businesses either overlook the importance of having an experienced attorney “on call” or spend significant sums of money on in-house attorneys (including the associated overhead of research materials and support staff), who simply lack the experience necessary to handle all of the businesses’ legal needs.

FIDJ possesses the legal experience necessary to serve as outside general counsel in areas including, but not limited to:

  • Corporate formation, including the drafting of corporate documents (e.g. operating agreements, shareholder agreements, shareholder resolutions, consts, etc.)
  • Corporate governance matters, including compliance with state governance laws (e.g. meeting requirements, notice requirements, voting requirements, fiduciary duties, etc.)
  • Taxation
  • Mergers and acquisitions
  • Preparation, review, and negotiation of contracts with customers, partners, vendors, landlords, tenants, etc.
  • Employment matters, including counseling on discriminatory practices, hiring/firing issues, wage and hour issues, employment contracts, non-compete agreements, and general compliance with all appropriate state and federal regulations
  • State and federal compliance for the appropriate industry (e.g. counseling skilled nursing facilities on compliance with state and federal regulations concerning patient care, Conditions of Participation, Conditions of Coverage, STARK Law, Anti-Kickback compliance, HIPAA compliance, deficiency citations, civil monetary penalty appeals, etc.)
  • Day-to-day legal advice and counseling on general and industry-specific matters, with particular expertise in health care, physician medical practices, customs brokers, money services businesses, and other high-regulated businesses
  • Commercial and civil litigation

FIDJ works with each client to develop a suitable fee structure, which makes the relationship both advantageous and cost effective. When our firm serves as outside general counsel, its clients receive the benefit of a full-service law firm, minus the costs associated with bringing the vast array of legal experience and knowledge in-house. In addition, some fee structures remove the “billable hour” from the equation, thereby permitting clients to pursue their reasonable legal objectives without the worry of unexpected legal invoices.

Let FIDJ show you how it can help your business. For more information, call (305) 350-5690 or email

The health law attorneys of FIDJ are knowledgeable about the various regulatory and compliance issues home health agencies face.

Home health agencies play a critical role in the care and treatment of Medicare and Medicaid beneficiaries.

Home health agencies accept patients for treatment with the expectation that the patient’s medical needs can be adequately met by the agency in the patient’s place of residence (42 C.F.R. § 484.18). Home health services include part-time or intermittent skilled nursing care; physical, occupational, and speech therapy; medical social work; and home health aide services. Please refer to the Medicare Benefits Policy Manual, Pub. No. 100-02, Ch. 7, § 40 for additional information.

In order to receive proper payment from Medicare and Medicaid, it is essential that a home health agency maintain adequate documentation of all aspects of a beneficiary’s care, including for example: initial certifications and plans of care, verbal orders, prescriptions, initial and follow-up home health nursing certifications, daily nursing notes, and physical therapy assessments and notes. In addition, section 6407 of the Patient Protection and Affordable Care Act mandates that, prior to certifying a patient’s eligibility for the home health benefit, the physician responsible for performing the initial certification must document that the physician or a permitted non-physician practitioner (“NPP”) (which includes a nurse practitioner, a clinical nurse specialist, a certified nurse-midwife, or a physician assistant) has had a face-to-face encounter with the patient (42 C.F.R. § 424.22). As part of this documentation, the physician or NPP must document that he or she:

  • saw the patient
  • the patient’s clinical condition at the time of the encounter supports the patient’s homebound status
  • the need for skilled services

The face-to-face encounter must occur no earlier than 90 days prior to the start of, and no later than 30 days after the start of, home health care. The certifying physician must document this face-to-face encounter either on the initial certification which the physician signs, or in a separate signed addendum to the initial certification. Inadequate clinical documentation often times can result in payment denials, audits, and subsequent overpayment determinations by Medicare Administrative Contractors (MACs).

The health care practice group of Fuerst, Ittleman, David & Joseph has successfully assisted clients in obtaining reimbursement through a multifaceted approach of ensuring adequate regulatory compliance, billing and coding accuracy, and litigation when necessary. Our Florida health care law firm has successfully represented clients before the Centers for Medicare and Medicaid Services, the Florida Agency for Health Care Administration, and the Department of Justice on a variety of issues including Medicare and Medicaid suspensions, overpayment appeals, prepayment reviews and audits, and health care fraud investigations. When necessary, our Florida health care attorneys will take the fight to CMS and AHCA challenging the validity of the very rules upon which the agencies claim their power. An example of our firm’s previous success in rule challenges can be read here.

As home health agencies increasingly draw the eye of federal and state regulators and law enforcement authorities, it is critical that the home agency and its attorneys have a high level of familiarity with the laws and regulations governing home health agencies. The health care lawyers at FIDJ work with these laws and regulations on a daily basis and are frequently asked by health care clients for advice regarding how to comply. In many cases, our health care attorneys have been asked to litigate regarding these complex issues against the state and federal governments. Our Florida health care law firm has extensive experience litigating health care fraud cases.

Compliance is critical. With health care, tax, corporate, litigation, and white-collar criminal defense practice groups, FIDJ can provide comprehensive legal support for your home health agency.

For more information, please contact us at (305) 350-5690 or contact@fidjlaw.com.

FIDJ’s health care practice group has extensive experience in representing clients throughout the Medicare overpayment appeals process.

A Medicare overpayment is a payment which the Centers for Medicare & Medicaid Services (CMS) alleges that a Medicare supplier or provider has received in excess of amounts due and payable under the Medicare Act and its applicable regulation. Once CMS has identified an overpayment, the amount of overpayment is considered a debt owed by the provider/supplier to the federal government.

Identification of Overpayments

Provider and supplier overpayments are often identified through post-payment audits conducted by a Recovery Audit Contractor (RAC) as part of CMS’s Recovery Audit Program.

As described by CMS, “[t]he Recovery Audit Program’s mission is to identify and correct Medicare improper payments through efficient detection and collection of overpayments made on claims of health care services provided to Medicare beneficiaries. . . .” Overpayments may also be identified by Zone Program Integrity Contractors (ZPIC) audits.

Upon identification of an overpayment, the Medicare Administrative Contractor will commence the overpayment recovery process. The overpayment recovery process is typically commenced by the issuance of a notice of overpayment and initial demand letter for repayment by the MAC. If the contractor does not receive payment in full within 40 calendar days after the date of the first demand letter, the contractor will begin recoupment. During recoupment, CMS recovers the overpayment amount owed from current Medicare payments due, and future claims made by the provider until such time that the overpayment is recovered in full. All Medicare payment ceases until the overpayment is satisfied.

However, a provider or supplier may avoid recoupment if it acts quickly to assert its administrative appeals rights.

Appeal Rights for Providers

The Medicare and Social Security Acts set forth a system of administrative appeals, which a provider must use should it disagree with a coverage determination of the secretary. The Medicare overpayment appeals process consists of five stages that can be summarized as follows:

First, the contractor issues an initial determination as to payment, including, but not limited to, whether an individual is entitled to benefits and the amount of benefits available (42 U.S.C. § 1395ff(a); 42 C.F.R. §§ 405.920, 405.924). A provider who is dissatisfied with the initial determination may request that the contractor perform a redetermination within 120 days of receiving the notice of overpayment (42 U.S.C. § 1395ff(b); 42 C.F.R. § 405.940). The provider can prevent recoupment from occurring if the contractor receives a request for redetermination within 30 days of the notice of overpayment. However, it should be noted that although the recoupment process will begin, should a request for redetermination not be received within 30 days, Medicare will cease recoupment efforts at whatever point that a redetermination request is received, but Medicare may not refund any recoupment already taken until such time that a provider establishes that the alleged overpayment was incorrect.

During the redetermination stage, the contractor will conduct an independent review of the initial determination (42 C.F.R. § 405.948). After reviewing the evidence and findings upon which the initial determination was based, as well as any additional evidence submitted by the parties or that the contractor obtains on its own, the contractor renders a decision affirming or reversing, in whole or in part, the revised initial determination (42 C.F.R. §§ 405.948, 405.954). Should the contractor affirm the original overpayment determination, recoupment will commence on the 61st day following the redetermination decision. However, Medicare will again stop recoupment following an unfavorable or partially favorable, redetermination if a provider files for reconsideration (42 C.F.R. § 405.379).

A party to a redetermination who is dissatisfied may request reconsideration by a Qualified Independent Contractor (QIC) within 180 days of the redetermination. A reconsideration consists of an independent, on the record review of an initial determination, which includes the redetermination and all issues related to the payment of a claim (42 U.S.C. § 1395ff(c); 42 C.F.R. §§ 405.960; 405.968). Upon receipt of a timely and valid request for a reconsideration of an overpayment, the Medicare contractor shall cease recoupment of the overpayment. If recoupment has not yet commenced, the contractor is prohibited from initiating recoupment until the QIC has rendered a decision.

A party may appeal an adverse reconsideration to an Administrative Law Judge (ALJ), who holds an evidentiary hearing at which the provider may present testimony to support its claim (42 U.S.C. § 1395ff(b)(1); 42 C.F.R. §§ 405.1000, 405.1002). A party must file its request for administrative hearing, in writing, within 60 days of receipt of an unfavorable, or partially favorable, reconsideration. Medicare ALJ’s are within the Office of Medicare Hearings and Appeals, (OMHA), which is part of HHS, but is not a component of CMS. CMS or its contractors may, but are not required to, participate in the ALJ hearing. The ALJ considers “all the issues brought out in the initial determination, redetermination, or reconsideration,” according to 42 C.F.R. § 405.1032(a). The ALJ may consider a “new issue” if the issue “(i) could have material impact on the claim or claims that are the subject of the request for hearing; and (ii) is permissible under the rules governing reopening of determinations and decisions (42 C.F.R. §§ 405.980, 405.1032(b)).

Parties dissatisfied with an ALJ’s decision may request the Medicare Appeals Council (MAC) to review the ALJ’s decision, states 42 U.S.C. § 1935ff(d)(2); 42 C.F.R. § 405.1100. The MAC conducts a de novo review of the ALJ’s decision considering all the evidence of record and may adopt, modify, or reverse the ALJ’s decision or remand the case to an ALJ for further proceedings (42 C.F.R. §§ 405.1100-405.1128). The decision of the MAC constitutes the final decision of the secretary, according to 42 C.F.R. § 405.1130. Finally, a party dissatisfied with the secretary’s final decision may seek judicial review by commencing a civil action in federal district court (42 U.S.C. §§ 405(g), 1395ff(b)(1)(A); 42 C.F.R. §§ 405.1130, 405.1136).

For more information, please contact us at (305) 350-5690 or contact@fidjlaw.com.

Practices > Goverment Agency Litigation

Goverment Agency Litigation

While some firms pride themselves for maintaining friendly and amicable relationships with federal regulators, FIDJ has distinguished itself for its willingness to take the government to court as necessary to pursue its clients’ best interests. Indeed, sometimes litigation is unavoidable, and in those case the firm has litigated against a variety of government agencies, including IRS, FDA, FTC, USDA, DOJ and a number of state governments. The firm seeks to avoid litigation whenever possible, but if a government agency is regulating beyond its delegated authority or refusing to negotiate in good faith, the firm is ready, willing and able to pursue its clients’ interests in court.

Litigating against the government requires experience and a breadth of knowledge across a wide range of applicable law.

First, in any regulatory matter, and especially those where a client’s business practices may be exposed to the bright lights of a courtroom, counsel must carry a sophisticated understanding of its client’s business, including applicable statutes, regulations, guidance documents, and industrywide best practices. We pride ourselves for taking the time to understand how each of our clients operate and how they are regulated. Second, in any matter involving complex litigation, counsel must be familiar with state and federal rules of civil procedure, as well as the local rules governing litigation in individual courts, and our decades of litigation experience gives us that knowledge. Third, many complex disputes against the government carry overtones of criminal liability, and we have extensive experience representing clients in grand jury investigations and white collar criminal prosecutions which allows us to recognize when a regulatory dispute has turned criminal. Fourth, litigating against the government requires a deep understanding of the varieties of deference courts are required to give to regulatory agencies, which may vary depending upon the precise nature of the dispute and the manner by which the agency has chosen to regulate in any given industry. Finally, counsel must understand the limited subject matter jurisdiction afforded to federal district courts, as well as the limited jurisdiction often afforded to federal agencies by Congress. We routinely address these issues in our practice, and are well situated to argue them in court when litigation is our client’s only option.

FIDJ is highly experienced in litigating against the government in a variety of forums, and we pursue each case with the singular goal of maximizing the rights of our clients. To contact one of our experienced government agency litigation attorneys, contact us at (305) 350-5690 or contact@fidjlaw.com for a free consultation

Practices > White Collar Defense

White Collar Defense

FIDJ provides comprehensive representation to highly regulated businesses, and in many cases, these businesses have entered complex disputes with state or federal governments requiring the intervention of competent counsel. These disputes can take many forms. In some cases, the government has sent correspondence to a regulated business advising the business that it has failed in some material way to comply with federal law. In many of these cases, such as those which begin with Cease and Desist Letters issued by state banking regulators and Warning Letters issued by the FDA, the issuing agency posts the correspondence on the internet, and the firm is then asked to respond with the utmost sensitivity and urgency. In other cases, the Federal Trade Commission (FTC) or the Department of Justice may announce itself to a regulated entity by issuing a Civil Investigative Demand (CID) or other formal demand for information, and in these cases, the firm is requested by its clients to determine what, exactly, is being investigated and why, and to work with the government in limiting the scope of the investigation so that it does not unduly burden the client’s business.

FIDJ also represents clients which are the subjects and targets of grand jury investigations. In these cases, the violation of law which the government believes to have occurred is normally of a very significant nature, and typically the government believes that the regulated entity violated the law with specific intent and in a manner that injured members of the public or the government itself.

When a client is the subject or target of a grand jury investigation, Mr. Ittleman is often retained for purposes of determining what is being investigated and how to most effectively minimize the potential fallout of the investigation. In these cases, Mr. Ittleman is required to develop a thorough understanding of the client’s business and the governing laws and regulations, and a good working relationship with the federal government and counsel to the other parties under investigation.

In many cases, both civil and criminal, litigation against the federal government is unavoidable, and the firm has been retained to serve as counsel in many such lawsuits. On the one hand, civil litigation may follow the government’s issuance of a warning letter, CID or cease and desist letter, where the government and regulated party cannot settle their dispute outside of court along mutually acceptable terms and especially where the regulated entity does not believe that it is subject to the agency’s jurisdiction. In these cases, the firm is often asked to sue the federal government in federal court in an effort to have the government’s conduct declared to be unlawful, and in other cases, the firm is called in for representation when the government has filed suit seeking to have the regulated entity’s conduct permanently enjoined. Litigating civil actions against the federal government requires the firm to possess a strong working knowledge of constitutional law, administrative law, and the rules governing litigation in federal court.

On the other hand, in the most extreme cases, a grand jury has returned an indictment alleging that a party under investigation has violated federal law in some material way, and the party then finds itself named as a defendant in a criminal case. In these circumstances, the firm is retained for purposes of challenging the grand jury’s indictment and vigorously defending clients in court. The firm has represented a host of defendants in federal criminal cases nationwide.

FIDJ is one of the very few firms in South Florida to offer a full service food and drug practice, and we represent a wide variety of FDA-regulated clients at every level of FDA’s administrative process. Our firm also boasts a full-service white collar criminal defense practice, representing clients in every stage of criminal prosecution, including regulatory enforcement actions, grand jury investigations, pre-indictment, criminal litigation and trial. When these two areas of our robust practice combine, we are able to offer truly comprehensive criminal defense representation to our FDA-regulated clients.

FIDJ’s white collar criminal defense lawyers are well versed in the federal Food Drug & Cosmetic Act (FDCA) and its implementing regulations, and have represented numerous clients charged with felony and misdemeanor violations of that incredibly broad regulatory regime.

The white collar criminal defense attorneys at FIDJ have represented clients facing allegations of money laundering violations in a variety of contexts. Indeed, given the way Congress has written the federal money laundering laws, very few money laundering cases are the same, and the white collar criminal lawyers who handle money laundering cases must bring their knowledge of a host of laws and industries into every money laundering case they handle. FIDJ’s white collar criminal lawyers are uniquely suited to do so.

First, the federal money laundering statute, 18 U.S.C. § 1956(a), provides as follows:

(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(A) (i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under state or federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than 20 years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.

Clearly, the federal money laundering statute is a serious one which can lead to lengthy terms of incarceration and hefty fines. However, often overlooked in the public discussion of money laundering are the innumerable ways that the money laundering statute can be violated. Indeed, further down in the statute, Congress has created an exceptionally broad definition of “specified unlawful activity” – i.e. the criminal offenses the proceeds of which form the basis of a money laundering violation – so that virtually every crime imaginable can lead to a money laundering conviction; see 18 U.S.C. § 1956(c)(7). While money laundering is most often associated with drug trafficking convictions, money laundering offenses can also be associated with offenses such as bank fraud, wire fraud, mail fraud, healthcare fraud, bribery, smuggling, export violations, and dozens of others.

Thus, in order to defend against allegations of money laundering, white collar criminal defense attorneys must not only be skilled in the courtroom, they must also have an in-depth, sophisticated understanding of their clients’ businesses and business practices. Moreover, given the huge number of ways in which money laundering crimes can be committed, lawyers defending money laundering cases must be able to apply their knowledge of money laundering laws across industries, and may never see the same money laundering violation twice. Furthermore, particularly with respect to highly regulated businesses like healthcare providers and money services businesses, the lines separating criminal and lawful acts can often be blurry and subject to multiple interpretations. Money laundering attorneys must therefore be careful to never paint with too broad a brush: What violates the law in one industry may be commonplace in another, and every detail of the client’s business must be understood in context of the industry in which the client operates.

The white collar criminal defense attorneys at FIDJ bring a deep, sophisticated understanding of their clients’ businesses to every case that comes into the office. The firm’s unique foundation – offering comprehensive representation to highly regulated businesses – defends against money laundering allegations in a broad spectrum of industries. We take care to understand our clients, their businesses, criminal law, anti-money laundering law, and the various laws governing our clients’ businesses, as all of this is critical when defending against money laundering allegations, and we give every client the time and attention they deserve.

If you have been charged with or are under investigation for a money laundering violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of mail fraud and wire fraud, which are two of the most commonly used criminal statutes employed by prosecutors when indicting defendants in white collar criminal cases.

The mail fraud and wire fraud statutes, 18 USC § 1341 and 18 USC 1343, respectively, criminalize similar conduct. In short, the mail fraud statute criminalizes the act of using the United States Postal Service (or any private commercial interstate mail carrier, such as UPS or FedEx), during the course of a scheme to defraud, which typically involves a continuing series of intentional acts designed to defraud someone by attaining something of value through fraudulent or false promises, representations, or by intentionally parodying some future act.

The wire fraud statute is similar, but criminalizes the use of “wire, radio, or television communication in interstate or foreign commerce” for the purposes of executing a scheme to defraud or to obtain money by false or fraudulent pretenses. Wire fraud and mail fraud violations are both punishable by up to 20 years in prison and steep monetary fines.

In order to successfully prosecute a mail fraud or wire fraud case in court, the government must prove beyond a reasonable doubt that the defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. However, the government need not prove that the scheme to defraud was successful. Instead, the government has successfully prosecuted mail fraud and wire fraud cases based simply on the fact that the defendant’s “communications were reasonably calculated to deceive persons of ordinary prudence and comprehension.” Conversely, the government is required to prove that the defendants’ statements were material, which means that they had the natural tendency to influence or be capable of influencing the person to whom they were addressed. Convictions may also lie where the defendant attempted to defraud another, aided or abetted a scheme to defraud, or participated in a conspiracy to defraud.

Defending against allegations of mail fraud and wire fraud is hard work, but the white collar criminal defense attorneys at FIDJ have extensive experience doing so.Especially when defending clients operating in highly regulated industries, it is critical that white collar criminal defense attorney develop a thorough understanding of the client’s business. Indeed, it is the details of the client’s business – including the business itself, the industry in which the business operates, and the regulatory climate – which are oftentimes front and center in mail fraud and wire fraud prosecutions. Understanding these details is critical when mounting a defense.

Rarely do two businesses operate in the exact same way. Likewise, even businesses operating in the same or similar industries may describe themselves in completely different ways, and raise capital for themselves based upon varying representations. At the same time, mail fraud and wire fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against mail fraud and wire fraud prosecutions, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with convictions. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for mail fraud or wire fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of healthcare fraud of virtually every variety, including those involving private insurance companies, Medicare, Medicaid and Tricare.

In order to defend against an allegation of healthcare fraud, a white collar criminal defense attorney must bring to the case a sophisticated understanding of his client’s business, as well as the subtle distinctions which separate certain regulated businesses from others. In the case of healthcare fraud, which is an umbrella term covering a host of regulated businesses and schemes to defraud, the white collar criminal defense attorney must not only understand how home health agencies, skilled nursing facilities, doctors offices, pharmacies and durable medical equipment companies operate, he or she must also understand how each of those companies are compensated for those services.

Fortunately, FIDJ boasts a full service white collar criminal defense and healthcare practice. We represent a wide range of skilled nursing facilities, home health agencies, and other healthcare providers, and we assist them with day to day legal issues, audits, and reimbursement issues.

This experience not only allows us to communicate with the government when called upon to do so in administrative settings, but also to defend against grand jury investigations and criminal prosecutions. We are never overwhelmed by prescriptions, censuses, medical records, or internal memorandums, because we see those documents and appreciate their legal significance on a daily basis as part of our practice.

Rarely do healthcare providers operate in the exact same way. Likewise, the various branches of state and federal governments regulating healthcare providers have inconsistent requirements and apply them inconsistently. At the same time, healthcare fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against a healthcare fraud prosecution, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with a conviction. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for healthcare fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have been retained to represent clients facing allegations of bank fraud violations in a variety of contexts.

First, the firm has represented numerous clients facing allegations of bank fraud in violation of 18 U.S.C. § 1344, which criminalize complex schemes to defraud banks and other financial institutions. Today, § 1344 has become a hugely popular tool for the government in white collar criminal cases, especially in the wake of the global financial crisis. In order to successfully prosecute a bank fraud violation under § 1344, the government must prove each of the following elements beyond a reasonable doubt:

  1. There was a scheme to defraud a bank or other financial institution [or] to obtain moneys, funds, credits, assets, securities, or other property owned by, or in the custody or control of, a bank or other financial institution by means of false or fraudulent pretenses, representations or promises; and
  2. The defendant knowingly executed the scheme; and
  3. The defendant acted with the intent to defraud; and
  4. The scheme involved a materially false or fraudulent pretense, representation, or promise

The firm has also represented clients facing allegations of bank fraud in violation of 18 U.S.C. § 1014, which was designed to criminalize a less outwardly sinister variety of criminal conduct than § 1344. To obtain a conviction under § 1014, the government must prove first that the defendant made a false statement or report, and second, that it was done so for the purpose of influencing in any way the action of [a described financial institution] upon any application…. Unlike § 1344, the government need not prove that the false statement was material.

Like the bank fraud statute, § 1014 carries a maximum fine of $1,000,000 and a maximum prison term of 30 years. However, unlike the bank fraud statute, in recent years, we have seen § 1014 increasingly applied in cases where the bank suffers no financial loss, and the only financial service obtained by the defendant is a checking account. While the issue seems simple, § 1014 cases often involve highly complex facts and circumstances, not necessarily about the misstatements made to the banks, but rather about the general circumstances in which the bank and customer find themselves.

If you or your business has been accused of violating either of these federal bank fraud statutes, we urge you to take immediate steps to retain competent counsel and get to work on developing your defense. You may contact our white collar criminal defense attorneys at any time by emailing us at ccontact@fidjlaw.com or by calling us at (305) 350-5690.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 351 provides that drugs and devices will be deemed to be adulterated if they “consist in whole or part of any filthy, putrid or decomposed substance,” or if they have been prepared, packed or held in facilities which fail to comply with the standards set forth by federal law and regulation for FDA regulated drugs and devices.

Federal laws and regulations set forth with painstaking detail the applicable cleanliness standards for foods, drugs, medical devices, biologics and tobacco products, and our FDA practice group advises our clients regarding these standards on a daily basis.

Sometimes, however, FDA believes that an adulteration violation was committed intentionally, and in those cases, the FDA will pursue the violation criminally. Not surprisingly, the FDCA makes clear that the consequences of criminal adulteration violations are severe. As an example, 21 USC § 333(b)(7) provides that “any person that knowingly and intentionally taints a drug such that the drug is adulterated…and has a reasonable probability of causing serious adverse health consequences or death to humans or animals shall be imprisoned for not more than 20 years or fined not more than $1,000,000, or both.”

Clearly, criminal adulteration violations are serious and must be taken seriously. Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the manufacturing of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal adulteration violation, contact us now for a free consultation.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 352(f) provides that a drug will be deemed to be misbranded unless its labeling contains adequate directions for use, which typically requires the directions to allow a layperson to use the drug safely and for the purposes for which it was intended.

As with adulteration cases, the FDA can pursue misbranding cases criminally, and the consequences can be severe, especially when the FDA believes that the violation was committed with the intent to defraud or mislead. We routinely see criminal misbranding charges filed in cases involving unapproved new drugs, as well as those involving drugs which have been imported into the United States from other countries, including Canada.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the labeling of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal misbranding violation, contact us now for a free consultation.

The FDA can, and oftentimes does, prosecute cases criminally even when it does not believe that the violation was committed intentionally. Even though such violations may only be pursued as misdemeanors, the prosecution itself – as well as its collateral consequences – can be life altering, and the targets of these prosecutions should take them as seriously as felony prosecutions.

The Park Doctrine, which is named after a 1975 Supreme Court case called United States v. Park, provides that a “responsible corporate official” can be held liable for a first-time misdemeanor (and possible subsequent felony) under the FDCA without proof of intent or negligence, and even if the official did not have any actual knowledge of, or participation in, the specific offense.

Misdemeanor prosecution under the Act can be a valuable enforcement tool. Once a person has been convicted of an FDCA misdemeanor, any subsequent violation becomes a felony, even without proof that the defendant acted with the intent to defraud or mislead. Additionally, in many cases, a misdemeanor Park Doctrine conviction has served as the basis for debarment by FDA, meaning that the responsible corporate official was excluded from any participation in federal health care programs for as many as 12 years.

In addition to the individual’s position in the company and whether he or she had the authority to prevent or correct the violation, the FDA will also consider, when determining whether to bring a Park Doctrine indictment, the following list of relevant factors:

  1. Whether the violation involves actual or potential harm to the public;
  2. Whether the violation is obvious;
  3. Whether the violation reflects a pattern of illegal behavior and/or failure to heed prior warnings;
  4. Whether the violation is widespread;
  5. Whether the violation is serious;
  6. The quality of the legal and factual support for the proposed prosecution; and
  7. Whether the proposed prosecution is a prudent use of agency resources.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the operation of FDA-regulated companies, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a misdemeanor Park Doctrine violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

18 U.S.C. § 1960 proscribes the operation of an unlicensed money transmitting business, and provides that a five year prison sentence can attach to any such violation. Although simple on the surface, the federal government has employed this statute in a wide variety of settings leading to serious consequences for defendants facing allegations that they operated unlicensed money transmitting businesses.

18 U.S.C. § 1960 can be violated in three distinct ways. First, one can operate an unlicensed money transmitting business and thus violate the statute by operating a money transmitting business “without an appropriate money transmitting license in a state where such operation is punishable as a misdemeanor or a felony under state law…” Second, one can operate an unlicensed money transmitting business and thus violate the statute by failing to register the business with FinCEN as required by 31 U.S.C. § 5330. Finally, one can operate an unlicensed money transmitting business and thus violate the statute by processing “funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to promote or support unlawful activity.” So, in the third scenario, a defendant can be convicted of operating an unlicensed money transmitting business even if it was adequately licensed.

It is also critical to note that, in most cases, § 1960 is not a specific intent statute. As part of the Patriot Act, Congress amended § 1960(b)(1)(A) to provide that a defendant can be convicted of operating an unlicensed money transmitting business “whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable.” This makes the unlicensed money transmitting business statute an attractive one for prosecutors, as Congress has freed them of the obligation to prove beyond a reasonable doubt what was on the defendant’s mind at the time the act at issue in the case was committed.

The white collar criminal defense attorneys at FIDJ bring a unique perspective to their defense of cases involving allegations that clients operated unlicensed money transmitting businesses.

First, the firm is a correspondent member of the National Money Transmitters Association and a frequent sponsor of the International Money Transfer Conferences. Second, the firm’s lawyers are frequently called upon to lecture to domestic and international money transfer organizations regarding the laws governing money transmitters, and is widely viewed as a thought leader on the subject. Third, the firm’s lawyers are frequently retained by domestic and international financial institutions to give legal advice regarding whether they are money transmitting businesses and, if so, what registration and licensing requirements apply to their business. The firm also has extensive experience advising financial institutions regarding their anti-money laundering obligations, and has extensive experience litigating those issues in both civil and criminal cases. As such, even in cases where the government need not prove that a defendant intentionally violated the § 1960 statute, the firm is uniquely equipped to litigate the complex issue of whether the defendant operated a money transmitting business, licensed or otherwise.

If you have been charged with or are under investigation for operating an unlicensed money transmitting business, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience representing their clients in a wide variety of forfeiture cases at the state and federal level. FIDJ’s white collar lawyers bring their thorough understanding of criminal law and procedure, civil procedure, constitutional law and the rules of evidence into every forfeiture matter they handle, leading to highly competent representation and excellent results for our clients.

At the federal level, asset forfeiture law has two primary branches: criminal forfeiture and civil forfeiture. While both branches contain the word forfeiture, they are different and typically involve different proceedings and legal issues.

Criminal asset forfeiture is the more straightforward of the two varieties of forfeitures, and typically involves contraband, ill-gotten gains and instrumentalities which the government has seized as part of a criminal case. Examples of criminal forfeiture matters would be the litigation that ensues when the government seizes a house where drugs have been unlawfully manufactured, or the money held in a bank account of an unlicensed money transmitting business. In these cases, the criminal defendant will often waive his right to litigate the forfeiture portion of his criminal case, but third party owners of that property who have not been charged with a crime will often choose to litigate against the government to recover their property.

FIDJ has significant experience filing and pursuing claims on behalf of such innocent third parties. The other variety of forfeiture action is civil asset forfeiture, which many times involves law enforcement seizing property on mere suspicion of a crime, and then requiring the owner to prove the property’s innocence. In these cases, the lawsuit is pursued in rem (filed against the seized property) on the theory that it facilitated a crime and is thus forfeitable to the government. Unlike criminal forfeiture cases, the government may pursue a civil forfeiture action against a piece of property without necessarily pursuing a criminal case against an actual person. Litigating such cases can be highly difficult because the government’s burden is so low: the government can seize property for forfeiture because the property is alleged to have facilitated a crime, even if the crime itself is never proven, and even if no person is ever prosecuted.

We have also handled forfeiture cases at the state level, most notably in cases where the South Florida Money Laundering Strike Force has facilitated money or property said to be the proceeds of a criminal act. The South Florida Money Laundering Strike Force – which is organized by the Miami-Dade State Attorney’s Office and includes 17 South Florida police departments – supports its activities in large part by seizing and forfeiting the proceeds of allegedly unlawful activity, making civil forfeiture cases at the state level in Florida critically important.

In all forfeiture cases, lawyers must have a well-rounded understanding of the applicable law, including criminal law, constitutional law, civil procedure, and the rules of evidence. The white collar criminal defense attorneys at FIDJ bring a well-rounded understanding of the law to every case they handle, making the firm one of Florida’s leading asset forfeiture law firms.

If you need assistance pursuing a claim in a civil or criminal forfeiture action at the state or federal level, contact us for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

White Collar Defense

FIDJ provides comprehensive representation to highly regulated businesses, and in many cases, these businesses have entered complex disputes with state or federal governments requiring the intervention of competent counsel. These disputes can take many forms. In some cases, the government has sent correspondence to a regulated business advising the business that it has failed in some material way to comply with federal law. In many of these cases, such as those which begin with Cease and Desist Letters issued by state banking regulators and Warning Letters issued by the FDA, the issuing agency posts the correspondence on the internet, and the firm is then asked to respond with the utmost sensitivity and urgency. In other cases, the Federal Trade Commission (FTC) or the Department of Justice may announce itself to a regulated entity by issuing a Civil Investigative Demand (CID) or other formal demand for information, and in these cases, the firm is requested by its clients to determine what, exactly, is being investigated and why, and to work with the government in limiting the scope of the investigation so that it does not unduly burden the client’s business.

FIDJ also represents clients which are the subjects and targets of grand jury investigations. In these cases, the violation of law which the government believes to have occurred is normally of a very significant nature, and typically the government believes that the regulated entity violated the law with specific intent and in a manner that injured members of the public or the government itself.

When a client is the subject or target of a grand jury investigation, Mr. Ittleman is often retained for purposes of determining what is being investigated and how to most effectively minimize the potential fallout of the investigation. In these cases, Mr. Ittleman is required to develop a thorough understanding of the client’s business and the governing laws and regulations, and a good working relationship with the federal government and counsel to the other parties under investigation.

In many cases, both civil and criminal, litigation against the federal government is unavoidable, and the firm has been retained to serve as counsel in many such lawsuits. On the one hand, civil litigation may follow the government’s issuance of a warning letter, CID or cease and desist letter, where the government and regulated party cannot settle their dispute outside of court along mutually acceptable terms and especially where the regulated entity does not believe that it is subject to the agency’s jurisdiction. In these cases, the firm is often asked to sue the federal government in federal court in an effort to have the government’s conduct declared to be unlawful, and in other cases, the firm is called in for representation when the government has filed suit seeking to have the regulated entity’s conduct permanently enjoined. Litigating civil actions against the federal government requires the firm to possess a strong working knowledge of constitutional law, administrative law, and the rules governing litigation in federal court.

On the other hand, in the most extreme cases, a grand jury has returned an indictment alleging that a party under investigation has violated federal law in some material way, and the party then finds itself named as a defendant in a criminal case. In these circumstances, the firm is retained for purposes of challenging the grand jury’s indictment and vigorously defending clients in court. The firm has represented a host of defendants in federal criminal cases nationwide.

FIDJ is one of the very few firms in South Florida to offer a full service food and drug practice, and we represent a wide variety of FDA-regulated clients at every level of FDA’s administrative process. Our firm also boasts a full-service white collar criminal defense practice, representing clients in every stage of criminal prosecution, including regulatory enforcement actions, grand jury investigations, pre-indictment, criminal litigation and trial. When these two areas of our robust practice combine, we are able to offer truly comprehensive criminal defense representation to our FDA-regulated clients.

FIDJ’s white collar criminal defense lawyers are well versed in the federal Food Drug & Cosmetic Act (FDCA) and its implementing regulations, and have represented numerous clients charged with felony and misdemeanor violations of that incredibly broad regulatory regime.

The white collar criminal defense attorneys at FIDJ have represented clients facing allegations of money laundering violations in a variety of contexts. Indeed, given the way Congress has written the federal money laundering laws, very few money laundering cases are the same, and the white collar criminal lawyers who handle money laundering cases must bring their knowledge of a host of laws and industries into every money laundering case they handle. FIDJ’s white collar criminal lawyers are uniquely suited to do so.

First, the federal money laundering statute, 18 U.S.C. § 1956(a), provides as follows:

(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(A) (i) with the intent to promote the carrying on of specified unlawful activity; or

(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or

(ii) to avoid a transaction reporting requirement under state or federal law,

shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than 20 years, or both. For purposes of this paragraph, a financial transaction shall be considered to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or dependent transactions, any one of which involves the proceeds of specified unlawful activity, and all of which are part of a single plan or arrangement.

Clearly, the federal money laundering statute is a serious one which can lead to lengthy terms of incarceration and hefty fines. However, often overlooked in the public discussion of money laundering are the innumerable ways that the money laundering statute can be violated. Indeed, further down in the statute, Congress has created an exceptionally broad definition of “specified unlawful activity” – i.e. the criminal offenses the proceeds of which form the basis of a money laundering violation – so that virtually every crime imaginable can lead to a money laundering conviction; see 18 U.S.C. § 1956(c)(7). While money laundering is most often associated with drug trafficking convictions, money laundering offenses can also be associated with offenses such as bank fraud, wire fraud, mail fraud, healthcare fraud, bribery, smuggling, export violations, and dozens of others.

Thus, in order to defend against allegations of money laundering, white collar criminal defense attorneys must not only be skilled in the courtroom, they must also have an in-depth, sophisticated understanding of their clients’ businesses and business practices. Moreover, given the huge number of ways in which money laundering crimes can be committed, lawyers defending money laundering cases must be able to apply their knowledge of money laundering laws across industries, and may never see the same money laundering violation twice. Furthermore, particularly with respect to highly regulated businesses like healthcare providers and money services businesses, the lines separating criminal and lawful acts can often be blurry and subject to multiple interpretations. Money laundering attorneys must therefore be careful to never paint with too broad a brush: What violates the law in one industry may be commonplace in another, and every detail of the client’s business must be understood in context of the industry in which the client operates.

The white collar criminal defense attorneys at FIDJ bring a deep, sophisticated understanding of their clients’ businesses to every case that comes into the office. The firm’s unique foundation – offering comprehensive representation to highly regulated businesses – defends against money laundering allegations in a broad spectrum of industries. We take care to understand our clients, their businesses, criminal law, anti-money laundering law, and the various laws governing our clients’ businesses, as all of this is critical when defending against money laundering allegations, and we give every client the time and attention they deserve.

If you have been charged with or are under investigation for a money laundering violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of mail fraud and wire fraud, which are two of the most commonly used criminal statutes employed by prosecutors when indicting defendants in white collar criminal cases.

The mail fraud and wire fraud statutes, 18 USC § 1341 and 18 USC 1343, respectively, criminalize similar conduct. In short, the mail fraud statute criminalizes the act of using the United States Postal Service (or any private commercial interstate mail carrier, such as UPS or FedEx), during the course of a scheme to defraud, which typically involves a continuing series of intentional acts designed to defraud someone by attaining something of value through fraudulent or false promises, representations, or by intentionally parodying some future act.

The wire fraud statute is similar, but criminalizes the use of “wire, radio, or television communication in interstate or foreign commerce” for the purposes of executing a scheme to defraud or to obtain money by false or fraudulent pretenses. Wire fraud and mail fraud violations are both punishable by up to 20 years in prison and steep monetary fines.

In order to successfully prosecute a mail fraud or wire fraud case in court, the government must prove beyond a reasonable doubt that the defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. However, the government need not prove that the scheme to defraud was successful. Instead, the government has successfully prosecuted mail fraud and wire fraud cases based simply on the fact that the defendant’s “communications were reasonably calculated to deceive persons of ordinary prudence and comprehension.” Conversely, the government is required to prove that the defendants’ statements were material, which means that they had the natural tendency to influence or be capable of influencing the person to whom they were addressed. Convictions may also lie where the defendant attempted to defraud another, aided or abetted a scheme to defraud, or participated in a conspiracy to defraud.

Defending against allegations of mail fraud and wire fraud is hard work, but the white collar criminal defense attorneys at FIDJ have extensive experience doing so.Especially when defending clients operating in highly regulated industries, it is critical that white collar criminal defense attorney develop a thorough understanding of the client’s business. Indeed, it is the details of the client’s business – including the business itself, the industry in which the business operates, and the regulatory climate – which are oftentimes front and center in mail fraud and wire fraud prosecutions. Understanding these details is critical when mounting a defense.

Rarely do two businesses operate in the exact same way. Likewise, even businesses operating in the same or similar industries may describe themselves in completely different ways, and raise capital for themselves based upon varying representations. At the same time, mail fraud and wire fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against mail fraud and wire fraud prosecutions, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with convictions. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for mail fraud or wire fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience defending their clients against allegations of healthcare fraud of virtually every variety, including those involving private insurance companies, Medicare, Medicaid and Tricare.

In order to defend against an allegation of healthcare fraud, a white collar criminal defense attorney must bring to the case a sophisticated understanding of his client’s business, as well as the subtle distinctions which separate certain regulated businesses from others. In the case of healthcare fraud, which is an umbrella term covering a host of regulated businesses and schemes to defraud, the white collar criminal defense attorney must not only understand how home health agencies, skilled nursing facilities, doctors offices, pharmacies and durable medical equipment companies operate, he or she must also understand how each of those companies are compensated for those services.

Fortunately, FIDJ boasts a full service white collar criminal defense and healthcare practice. We represent a wide range of skilled nursing facilities, home health agencies, and other healthcare providers, and we assist them with day to day legal issues, audits, and reimbursement issues.

This experience not only allows us to communicate with the government when called upon to do so in administrative settings, but also to defend against grand jury investigations and criminal prosecutions. We are never overwhelmed by prescriptions, censuses, medical records, or internal memorandums, because we see those documents and appreciate their legal significance on a daily basis as part of our practice.

Rarely do healthcare providers operate in the exact same way. Likewise, the various branches of state and federal governments regulating healthcare providers have inconsistent requirements and apply them inconsistently. At the same time, healthcare fraud is a hugely pervasive problem, and very few schemes to defraud are the same. In defending against a healthcare fraud prosecution, all of these factors must be taken into consideration, keeping in mind the serious consequences associated with a conviction. We therefore work closely with our clients to ensure that the important details of their businesses are not overlooked, allowing them to assert the most thorough and complete defenses available under the law.

If you have been charged with or are under investigation for healthcare fraud, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have been retained to represent clients facing allegations of bank fraud violations in a variety of contexts.

First, the firm has represented numerous clients facing allegations of bank fraud in violation of 18 U.S.C. § 1344, which criminalize complex schemes to defraud banks and other financial institutions. Today, § 1344 has become a hugely popular tool for the government in white collar criminal cases, especially in the wake of the global financial crisis. In order to successfully prosecute a bank fraud violation under § 1344, the government must prove each of the following elements beyond a reasonable doubt:

  1. There was a scheme to defraud a bank or other financial institution [or] to obtain moneys, funds, credits, assets, securities, or other property owned by, or in the custody or control of, a bank or other financial institution by means of false or fraudulent pretenses, representations or promises; and
  2. The defendant knowingly executed the scheme; and
  3. The defendant acted with the intent to defraud; and
  4. The scheme involved a materially false or fraudulent pretense, representation, or promise

The firm has also represented clients facing allegations of bank fraud in violation of 18 U.S.C. § 1014, which was designed to criminalize a less outwardly sinister variety of criminal conduct than § 1344. To obtain a conviction under § 1014, the government must prove first that the defendant made a false statement or report, and second, that it was done so for the purpose of influencing in any way the action of [a described financial institution] upon any application…. Unlike § 1344, the government need not prove that the false statement was material.

Like the bank fraud statute, § 1014 carries a maximum fine of $1,000,000 and a maximum prison term of 30 years. However, unlike the bank fraud statute, in recent years, we have seen § 1014 increasingly applied in cases where the bank suffers no financial loss, and the only financial service obtained by the defendant is a checking account. While the issue seems simple, § 1014 cases often involve highly complex facts and circumstances, not necessarily about the misstatements made to the banks, but rather about the general circumstances in which the bank and customer find themselves.

If you or your business has been accused of violating either of these federal bank fraud statutes, we urge you to take immediate steps to retain competent counsel and get to work on developing your defense. You may contact our white collar criminal defense attorneys at any time by emailing us at ccontact@fidjlaw.com or by calling us at (305) 350-5690.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 351 provides that drugs and devices will be deemed to be adulterated if they “consist in whole or part of any filthy, putrid or decomposed substance,” or if they have been prepared, packed or held in facilities which fail to comply with the standards set forth by federal law and regulation for FDA regulated drugs and devices.

Federal laws and regulations set forth with painstaking detail the applicable cleanliness standards for foods, drugs, medical devices, biologics and tobacco products, and our FDA practice group advises our clients regarding these standards on a daily basis.

Sometimes, however, FDA believes that an adulteration violation was committed intentionally, and in those cases, the FDA will pursue the violation criminally. Not surprisingly, the FDCA makes clear that the consequences of criminal adulteration violations are severe. As an example, 21 USC § 333(b)(7) provides that “any person that knowingly and intentionally taints a drug such that the drug is adulterated…and has a reasonable probability of causing serious adverse health consequences or death to humans or animals shall be imprisoned for not more than 20 years or fined not more than $1,000,000, or both.”

Clearly, criminal adulteration violations are serious and must be taken seriously. Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the manufacturing of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal adulteration violation, contact us now for a free consultation.

21 USC § 331 makes clear that federal law prohibits “the introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded,” and “the adulteration or misbranding of any food, drug, device, tobacco product, or cosmetic in interstate commerce.” Additionally, 21 USC § 352(f) provides that a drug will be deemed to be misbranded unless its labeling contains adequate directions for use, which typically requires the directions to allow a layperson to use the drug safely and for the purposes for which it was intended.

As with adulteration cases, the FDA can pursue misbranding cases criminally, and the consequences can be severe, especially when the FDA believes that the violation was committed with the intent to defraud or mislead. We routinely see criminal misbranding charges filed in cases involving unapproved new drugs, as well as those involving drugs which have been imported into the United States from other countries, including Canada.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the labeling of regulated articles, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a criminal misbranding violation, contact us now for a free consultation.

The FDA can, and oftentimes does, prosecute cases criminally even when it does not believe that the violation was committed intentionally. Even though such violations may only be pursued as misdemeanors, the prosecution itself – as well as its collateral consequences – can be life altering, and the targets of these prosecutions should take them as seriously as felony prosecutions.

The Park Doctrine, which is named after a 1975 Supreme Court case called United States v. Park, provides that a “responsible corporate official” can be held liable for a first-time misdemeanor (and possible subsequent felony) under the FDCA without proof of intent or negligence, and even if the official did not have any actual knowledge of, or participation in, the specific offense.

Misdemeanor prosecution under the Act can be a valuable enforcement tool. Once a person has been convicted of an FDCA misdemeanor, any subsequent violation becomes a felony, even without proof that the defendant acted with the intent to defraud or mislead. Additionally, in many cases, a misdemeanor Park Doctrine conviction has served as the basis for debarment by FDA, meaning that the responsible corporate official was excluded from any participation in federal health care programs for as many as 12 years.

In addition to the individual’s position in the company and whether he or she had the authority to prevent or correct the violation, the FDA will also consider, when determining whether to bring a Park Doctrine indictment, the following list of relevant factors:

  1. Whether the violation involves actual or potential harm to the public;
  2. Whether the violation is obvious;
  3. Whether the violation reflects a pattern of illegal behavior and/or failure to heed prior warnings;
  4. Whether the violation is widespread;
  5. Whether the violation is serious;
  6. The quality of the legal and factual support for the proposed prosecution; and
  7. Whether the proposed prosecution is a prudent use of agency resources.

Our FDA criminal defense lawyers have an in-depth understanding of the FDCA and its implementing regulations governing the operation of FDA-regulated companies, as well as extensive experience litigating white collar criminal cases in federal court. If you have been charged with a misdemeanor Park Doctrine violation, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

18 U.S.C. § 1960 proscribes the operation of an unlicensed money transmitting business, and provides that a five year prison sentence can attach to any such violation. Although simple on the surface, the federal government has employed this statute in a wide variety of settings leading to serious consequences for defendants facing allegations that they operated unlicensed money transmitting businesses.

18 U.S.C. § 1960 can be violated in three distinct ways. First, one can operate an unlicensed money transmitting business and thus violate the statute by operating a money transmitting business “without an appropriate money transmitting license in a state where such operation is punishable as a misdemeanor or a felony under state law…” Second, one can operate an unlicensed money transmitting business and thus violate the statute by failing to register the business with FinCEN as required by 31 U.S.C. § 5330. Finally, one can operate an unlicensed money transmitting business and thus violate the statute by processing “funds that are known to the defendant to have been derived from a criminal offense or are intended to be used to promote or support unlawful activity.” So, in the third scenario, a defendant can be convicted of operating an unlicensed money transmitting business even if it was adequately licensed.

It is also critical to note that, in most cases, § 1960 is not a specific intent statute. As part of the Patriot Act, Congress amended § 1960(b)(1)(A) to provide that a defendant can be convicted of operating an unlicensed money transmitting business “whether or not the defendant knew that the operation was required to be licensed or that the operation was so punishable.” This makes the unlicensed money transmitting business statute an attractive one for prosecutors, as Congress has freed them of the obligation to prove beyond a reasonable doubt what was on the defendant’s mind at the time the act at issue in the case was committed.

The white collar criminal defense attorneys at FIDJ bring a unique perspective to their defense of cases involving allegations that clients operated unlicensed money transmitting businesses.

First, the firm is a correspondent member of the National Money Transmitters Association and a frequent sponsor of the International Money Transfer Conferences. Second, the firm’s lawyers are frequently called upon to lecture to domestic and international money transfer organizations regarding the laws governing money transmitters, and is widely viewed as a thought leader on the subject. Third, the firm’s lawyers are frequently retained by domestic and international financial institutions to give legal advice regarding whether they are money transmitting businesses and, if so, what registration and licensing requirements apply to their business. The firm also has extensive experience advising financial institutions regarding their anti-money laundering obligations, and has extensive experience litigating those issues in both civil and criminal cases. As such, even in cases where the government need not prove that a defendant intentionally violated the § 1960 statute, the firm is uniquely equipped to litigate the complex issue of whether the defendant operated a money transmitting business, licensed or otherwise.

If you have been charged with or are under investigation for operating an unlicensed money transmitting business, contact us now for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

The white collar criminal defense attorneys at FIDJ have extensive experience representing their clients in a wide variety of forfeiture cases at the state and federal level. FIDJ’s white collar lawyers bring their thorough understanding of criminal law and procedure, civil procedure, constitutional law and the rules of evidence into every forfeiture matter they handle, leading to highly competent representation and excellent results for our clients.

At the federal level, asset forfeiture law has two primary branches: criminal forfeiture and civil forfeiture. While both branches contain the word forfeiture, they are different and typically involve different proceedings and legal issues.

Criminal asset forfeiture is the more straightforward of the two varieties of forfeitures, and typically involves contraband, ill-gotten gains and instrumentalities which the government has seized as part of a criminal case. Examples of criminal forfeiture matters would be the litigation that ensues when the government seizes a house where drugs have been unlawfully manufactured, or the money held in a bank account of an unlicensed money transmitting business. In these cases, the criminal defendant will often waive his right to litigate the forfeiture portion of his criminal case, but third party owners of that property who have not been charged with a crime will often choose to litigate against the government to recover their property.

FIDJ has significant experience filing and pursuing claims on behalf of such innocent third parties. The other variety of forfeiture action is civil asset forfeiture, which many times involves law enforcement seizing property on mere suspicion of a crime, and then requiring the owner to prove the property’s innocence. In these cases, the lawsuit is pursued in rem (filed against the seized property) on the theory that it facilitated a crime and is thus forfeitable to the government. Unlike criminal forfeiture cases, the government may pursue a civil forfeiture action against a piece of property without necessarily pursuing a criminal case against an actual person. Litigating such cases can be highly difficult because the government’s burden is so low: the government can seize property for forfeiture because the property is alleged to have facilitated a crime, even if the crime itself is never proven, and even if no person is ever prosecuted.

We have also handled forfeiture cases at the state level, most notably in cases where the South Florida Money Laundering Strike Force has facilitated money or property said to be the proceeds of a criminal act. The South Florida Money Laundering Strike Force – which is organized by the Miami-Dade State Attorney’s Office and includes 17 South Florida police departments – supports its activities in large part by seizing and forfeiting the proceeds of allegedly unlawful activity, making civil forfeiture cases at the state level in Florida critically important.

In all forfeiture cases, lawyers must have a well-rounded understanding of the applicable law, including criminal law, constitutional law, civil procedure, and the rules of evidence. The white collar criminal defense attorneys at FIDJ bring a well-rounded understanding of the law to every case they handle, making the firm one of Florida’s leading asset forfeiture law firms.

If you need assistance pursuing a claim in a civil or criminal forfeiture action at the state or federal level, contact us for a free consultation by emailing us at contact@fidjlaw.com or by calling us at (305) 350-5690.

Anti-Money Laudering

FIDJ’s Anti-Money Laundering practice covers a wide range of businesses and legal issues. Primarily, our AML attorneys advise domestic and international financial institutions regarding their anti-money laundering requirements as set forth by the Bank Secrecy Act and individual state laws. This advice can be delivered in a variety of forms, but typically involves explaining how the individual institution is defined by federal law, and then teaching the institution regarding its unique federally mandated compliance requirements. However, our clients often have more wide-ranging legal needs. Accordingly, our AML lawyers routinely assist clients in matters involving commercial litigation, white collar criminal defense, regulatory enforcement actions, and commercial transactions, as well as IRS-BSA audits, OFAC licensing issues, grand jury investigations, state investigations, criminal and civil litigation, and commercial transactions. Our anti-money laundering practice recognizes that regulatory compliance must at all times remain at the forefront of every financial institution’s attention, and regardless of the specific legal matter we are asked to address for our financial institution clients, we must also keep our focus on compliance.

In addition to advising banks, credit unions and money services businesses regarding their anti-money laundering obligations, our anti-money laundering attorneys have also advised casinos, pawnbrokers, vehicle and yacht sellers, art dealers, diamond and gold dealers, investment brokers, insurance companies, and real estate companies, as all of these companies have been deemed to be “financial institutions” under United States law. In addition to working closely with our clients so as to render the most precise possible anti-money laundering advice, we also have strategic relationships with third party anti-money laundering consultants to assist in the preparation of our clients’ anti-money laundering programs.

While anti-money laundering programs are critical, they must be narrowly tailored to protect against the unique money laundering and terrorist financing risks posed by the individual financial institution, and they must actually be implemented. Additionally, financial institution employees must be included as part of the program and given instructions regarding how to report suspicious activity. Finally, anti-money laundering programs must be strong enough to withstand not only internal and external reviews, but the scrutiny of federal and state regulators, which may have overlapping jurisdiction over the financial institution and both routinely audit for compliance with the federal and state money laundering laws. We work closely with a wide range of financial institutions on all of these important anti-money laundering issues.

FIDJ’s Anti-Money Laundering Compliance team is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist and frequently lectures to domestic and international audiences on a wide range of anti-money laundering issues.

If you have any questions related to your anti-money laundering compliance obligations, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Money Services Businesses

“Money Services Business” (MSB) is an umbrella term covering a wide variety of businesses, including money transmitters, check cashers, dealers in foreign exchange (formerly known as currency exchangers and currency dealers), sellers and providers of prepaid access, and issuers, sellers and redeemers of money orders and travelers checks. MSBs are typically required to register with FinCEN and become licensed in the individual states, depending upon the nature of the MSB’s business and the state or states in which it operates, services customers, or has bank accounts. The MSB lawyers at FIDJ are knowledgeable of these requirements and can provide critical assistance on a wide array of legal and regulatory matters, including:

  • State licensing issues, including license applications and legal opinions regarding state licensing laws;
  • State and federal compliance audits, including IRS/BSA examinations;
  • State and federal enforcement actions, including those seeking to impose fines and revoke licenses;
  • OFAC licensing issues;
  • Anti-money laundering and Bank Secrecy Act compliance;
  • Law enforcement and Grand Jury subpoenas and investigations;
  • White collar criminal defense;
  • Corporate transactions;
  • Commercial litigation

Depending upon the nature of the MSB’s business and the state or states in which it operates, services customers, or has bank accounts, MSBs may have burdensome state law requirements which are sometimes vague and inconsistent, but are not to be overlooked as failure to comply with them can lead to devastating consequences. Not only can MSBs be barred from operating in states where they operate, but as an example, money transmitters (and their individual operators) can be criminally prosecuted for operating in a state without a license, regardless of their innocent intent.

FIDJ’s Money Services Business practice is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist and frequently lectures on a wide variety of issues facing the MSB industry to domestic and international trade groups.

If you have any questions related to your money services business, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Virtual Currencies Compliance

Virtual currencies are ideal means of engaging in commercial transactions online. Virtual currency transactions are instant, immune from chargeback risk, and have developed a reputation for protecting user information in a manner vastly superior to credit cards and bank transfers. In spite of these attributes, virtual currencies have been the subject of intense government scrutiny since they first started circulating circa 1996. Virtual currencies (as well as their central issuers) have also been the targets of commercial lawsuits, civil forfeiture actions, grand jury investigations and criminal prosecutions based on a wide variety of allegations, including money laundering, fraud, unlicensed money transmitting business claims and a host of others. Thus, while there is no disputing the benefits of virtual currencies, they come with great risk, and those who issue virtual currencies or operate as commercial exchangers must always be mindful of their intense compliance obligations.

Today, Bitcoin is the world’s most popular virtual currency, though it is by no means the first. Between the time of its birth and March of 2013, Bitcoin and all other virtual currencies existed in an area of the law where there was no law.

That is not to say that Bitcoin issuers and users were not subject to the money laundering provisions of federal law if they used Bitcoin for unlawful purposes, but up until March 2013 the United States government had not decided how to regulate Bitcoin as a thing. Then, on March 18, the Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury issued its Guidance entitled, “Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtual Currencies.” This was a watershed moment for the regulation of Bitcoin and other virtual currencies

A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter. In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.

FinCEN’s March 2013 guidance has made the following point crystal clear: if an entity is in the business of exchanging Bitcoin for “real currency” or vice versa, or accepts Bitcoin from one person and transmits the real currency equivalent to another person, that entity is a money transmitter and will be regulated as such in the United States, and will be subject to the criminal provisions of 18 USC 1960 for failing to register with the federal government as a money transmitter or being licensed in any state that would require a money transmitting license.

FinCEN’s regulatory scheme for Bitcoin dealers is also applicable to dealers operating outside of the United States. Thus, even assuming that a Bitcoin exchanger does not have a physical nexus in the United States, so long as the exchanger services people located in the United States, the exchanger will be regulated as a money transmitter. As FinCEN explained on July 18, 2011, and as we blogged shortly thereafter, FinCEN’s rules make foreign-located businesses engaging in MSB activities within the U.S. subject to U.S. law. As a result, even foreign based MSBs with no physical presence in the US can be classified as an MSB and thus subject to the rigorous requirements of the BSA. However, foreign banks as well as foreign financial agencies that engage in activities that if conducted in the US would require them to be registered with the SEC or CFTC are excluded from the definition of an MSB. As noted in the rule, “To permit foreign-located persons to engage in MSB activities within the United States and not subject such persons to the BSA would be unfair to MSBs physically located in the United States and would also undermine FinCEN’s efforts to protect the U.S. financial system from abuse.”

FIDJ has represented a wide array of financial services providers with the following critical legal and regulatory matters including:

  • State licensing issues, including license applications and legal opinions regarding state licensing laws;
  • State and federal compliance audits, including IRS/BSA examinations;
  • State and federal enforcement actions, including those seeking to impose fines and revoke licenses;
  • OFAC licensing issues;
  • Anti-money laundering and Bank Secrecy Act compliance;
  • Law enforcement and Grand Jury subpoenas and investigations;
  • White collar criminal defense;
  • Corporate transactions;
  • Commercial litigation

FIDJ’s Virtual Currencies Compliance team is captained by Andrew S. Ittleman, Esq., who is a certified Anti-Money Laundering Specialist, and frequently lectures on a wide variety of issues facing the MSB industry to domestic and international trade groups.

If you have any questions related to your bitcoin or virtual currency compliance, please contact Andrew S. Ittleman, Esq. at aittleman@fidjlaw.com or (305) 350-5690.

Healthcare

FIDJ’s health care practice group provides comprehensive representation to health care providers in a wide array of forums, including matters involving regulatory issues, business transactions, and complex litigation. Our firm works closely with its clients to evaluate and implement strategies that meet their unique and complex legal needs.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide representation in all aspects of health law. We have successfully represented a wide variety of health care practitioners and facilities, including, but not limited to:

  • Physicians
  • Physician practice groups
  • Home health agencies
  • Skilled nursing facilities
  • Pharmacies
  • Pain management clinics

The health law attorneys at FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including:

  • Overpayment appeals
  • Cost report audit support and appeals
  • Medicaid Program Integrity audits and investigations
  • Prepayment reviews
  • Provider enrollment applications and appeals
  • AHCA survey appeals
  • Health care fraud investigations
  • HIPAA and FIPA compliance

Additionally, FIDJ’s health care, corporate, and tax attorneys work together to represent health care providers in various transactions including:

  • Practice restructuring and expansions
  • Mergers and acquisitions
  • Practitioner employment and Noncompetition Agreements
  • Incentive compensation arrangements

Our health care attorneys also advise and assist clients to ensure that they are fully compliant with a litany of laws including Anti-Kickback and STARK self-referral laws, among others. When necessary, FIDJ can provide aggressive, experienced litigation services in administrative, civil, and criminal litigation related to all these areas.

FIDJ also provides outside general counsel services to numerous health care entities.

For more information, please contact us at contact@fidjlaw.com, or call us directly at (305) 350-5690.

The health care practice group at FIDJ has experience in assisting clients in HIPAA implementation and compliance.

Our firm can assist your covered entity, or business associate, in ensuring that your company maintains the appropriate operations, policies, procedures, and systems to comply with HIPAA’s regulatory obligations.

Health Insurance Portability and Accountability Act (HIPAA), Pub. L. 104-191, was enacted to establish standards for maintaining the privacy and security of patient health records. HIPAA’s requirements apply to any individual, organization, or agency, which meets the definition of a “covered entity” and those entities’ “business associates,” which help the entities carry out their health care functions. “Covered entities” include health care providers, such as doctors, clinics, nursing homes and pharmacies. A complete definition of “covered entity” and “business associate” can be found at 45 C.F.R. § 160.103.

As part of HIPAA’s reforms, the Secretary of the United States Department of Health and Human Services (HHS) was required to develop regulations to assist in protecting both the privacy and security of certain health information. Towards this end, HHS published two series of regulations commonly known as the Privacy Rule and the Security Rule. The Privacy Rule, located at 45 C.F.R. Part 160 and subparts A and E of Part 164, establishes national standards for protection of personal health information and individuals’ medical records. The Privacy Rule established safeguards to protect the privacy of personal health information and established the circumstances under which disclosures of such information may be made without patient authorization. In addition, the Privacy Rule granted patients certain rights over access to their health information including the right to examine and obtain copies of their medical records and the right to request that corrections be made to mistakes within these records.

The Security Rule located at 45 C.F.R. Part 160, and subparts A and C of Part 164, establishes national standards for protecting electronic personal health information created, received, used, or maintained by a covered entity. The Security Rule works in tandem with the Privacy Rule by establishing the technical and non-technical safeguards that covered entities must have in place to protect electronic protected health information.

Violations of HIPAA can expose an entity to civil and potential criminal penalties. Within HHS, the Office of Civil Rights (OCR) has been given the responsibility of enforcing the Privacy and Security Rules through a variety of measures including the enforcement of civil monetary penalties. Penalties can range from $100 to $50,000 per violation depending on the circumstances of the case. However, prior to the imposition of a penalty, OCR will provide the covered entity an opportunity to submit written evidence on its behalf. Further, if OCR announces its intent to impose a civil monetary penalty, a covered entity has the right to request an administrative hearing. See generally, 45 C.F.R. Part 160 Subpart E.

Additionally, a person who knowingly obtains or discloses individually identifiable health information in violation of HIPAA’s Privacy Rule may face criminal penalties of up to $50,000 and up to one-year imprisonment. These penalties increase to $100,000, and up to five years imprisonment, should a violator’s wrongful conduct involve false pretenses, and to $250,000, and 10 years imprisonment, if the wrongful conduct involves the intent to sell, transfer, or use the identifiable health information for commercial advantage, personal gain, or malicious harm. The Department of Justice is responsible for the prosecution of criminal violations of HIPAA.

FIDJ’s health care practice group has experience in providing assistance to covered entities and their business associates to ensure HIPAA compliance. We also have extensive experience in representing entities in the administrative hearings and appeals process. Further, our white collar criminal practice group can provide aggressive, experienced litigation services regarding any potential criminal investigations or actions.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ can assist your covered entity in ensuring that your business maintains the appropriate operations, policies, procedures, and systems to comply with the Florida Information Privacy Act (FIPA).

On July 1, 2014, FIPA became effective replacing Florida’s previous data breach notification requirements. FIPA is comprehensive in nature, and addresses what “covered entities” and their “third-party agents” must do to protect “personal information,” and also sets forth what is required of such entities in the event of a breach. While the ideas behind FIPA and HIPAA are similar, the entities and data covered by the two laws are different. Unlike HIPAA, which only applies to health information, FIPA applies to all personal information regardless of what kind, or the nature of the company storing it. Thus, even though an entity may not fall within the federal HIPAA statute, it may nevertheless be governed by FIPA, and be subject to the full scope of the new state statutory scheme designed to protect personal information.

    1. Covered Entities, Third-Party Agents and Personal Information

FIPA governs a far more expansive list of “covered entities” than HIPAA. FIPA defines a “covered entity” as a “sole proprietorship, partnership, corporation, trust, estate, cooperative, association, or other commercial entity that acquires, maintains, stores, or uses ‘personal information,’” as per Fla. Stat. § 501.171(1)(b). A “third-party agent” is “an entity that has been contracted to maintain, store, or process personal information on behalf of a covered entity or governmental entity,” according to Fla. Stat. § 501.171(1)(h).

“Personal Information,” states Fla. Stat. § 501.171(1)(g)(1)(a), is defined as an individual’s first name, or first initial, and last name in combination with any one or more of the following data elements for that individual:

      • A Social Security number
      • A driver’s license or identification card number, passport number, or military identification
      • A financial account number or credit or debit card number with security codes or passwords
      • Any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional
      • An individual’s health insurance policy number or subscriber identification number and any unique identifier used by a health insurer to identify the individual.

“Personal information” also includes a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account, according to Fla. Stat. § 501.171(1)(g)(1(b). However, FIPA does not apply to personal information that is encrypted, secured, or modified so that the information is unusable in the event of a breach.

    1. Data Security Measures

FIPA requires that each covered entity, governmental entity, or third-party agent take reasonable measures to protect and secure data in electronic form containing personal information, as per Fla. Stat. § 501.171(2). Examples of reasonable measures would be encryption of data or de-identifying the data. In addition, FIPA requires covered entities and third-party agents to take all reasonable measures to dispose, or arrange for the disposal, of customer records containing such personal information. As explained in Fla. Stat. § 501.171(8), “such disposal shall involve shredding, erasing, or otherwise modifying the personal information in the records to make it unreadable or undecipherable through any means.”

    1. Breach Notification Requirements

FIPA establishes a series of people and authorities which must be contacted in the event of a breach as well as timeframes under which a covered entity or third-party agent must make such notifications. The notification requirements vary based on the size of the breach.

In all cases of a breach, cover entities must notify each individual whose personal information was accessed, or believed to be accessed, within 30 days after the discovery of a breach, states Fla. Stat. § 501.171(4)(a). However, an exemption exists in cases where “after an appropriate investigation and consultation with relevant federal, state, or local law enforcement agencies, the covered entity reasonably determines that the breach has not, and will not likely, result in identity theft or any other financial harm to the individuals whose personal information has been accessed” (Fla. Stat. § 501.171(4)(c). An exemption also exists if law enforcement determines that notice would interfere with a criminal investigation, according to Fla. Stat. § 501.171(4)(b).

When a breach affects 500 or more individuals in the state, covered entities must notify the Florida Department of Legal Affairs within 30 days of discovery of the breach. In such instances, a covered entity may receive an additional 15 days to provide the personal notification required under the statute should good cause exist. Such a requirement exists regardless of whether the covered entity determines that the breach is not likely to result in identity theft or other financial harm to the affected individuals states Fla. Stat. § 501.171(3).

In addition, according to Fla. Stat. § 501.171(5), in cases where the breach affects more than 1,000 individuals, the covered entity shall also notify, “without unreasonable delay,” all consumer credit reporting agencies that compile and maintain files on consumers under the Fair Credit Reporting Act.

In cases where data breaches occur at a third-party agent, the third-party agent shall notify the covered entity of the breach “as expeditiously as practicable, but no later than 10 days following the determination of the breach of security or reason to believe the breach occurred,” explains Fla. Stat. § 501.171(6). Once the third-party agent informs the covered entity, the covered entity shall proceed in providing the statutorily required notice.

It is important for companies who may also be considered covered entities under HIPAA to understand that the timeframes for reporting breaches are different under FIPA and HIPAA. Therefore, entities subject to both statutes must ensure adequate compliance with both in the event of a breach.

    1. Penalties

Violations of FIPA are treated as unfair and deceptive trade practices and allows the Florida Department of Legal Affairs to use any, and all, remedies available under Fla. Stat. § 501.207 of the Florida Deceptive and Unfair Trade Practices Act. Fla. Stat. § 501.171(9)(a).

In addition, covered entities face fines under FIPA for failing to provide the statutorily required notice. Here, rather than a per record basis fine structure, such as the one in place for HIPAA, FIPA civil penalties are based on the length of time an entity is not in compliance after a breach. Covered entities face civil penalties of up to $500,000 per breach calculated as follows: 1) $1,000 per day up to the first 30 days following any violation; 2) thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days (Fla. Stat. § 501.171(9)(b)).

FIPA expressly states that no private cause of action is established by the act. However, this does not mean that covered entities do not face a risk of private litigation in the event of a breach as common law causes of action, such as negligence, breach of contract, and breach of fiduciary duties, may still exist for damages caused by data breaches.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ’s health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the Anti-Kickback law. Our firm can also provide assistance with investigating possible violations of the Anti-Kickback law, which exist in your organization and in advising clients on corrective and remedial actions.

Generally speaking, the federal Anti-Kickback law, found at 42 U.S.C. § 1320a-7b(b), is a criminal statute that prohibits the offering, paying, soliciting or receiving of anything of value to induce or reward referrals, or to generate federal health care program business. The Anti-Kickback law is a criminal statute that is broadly defined, and establishes penalties for individuals and entities on both sides of the prohibited transaction.

    1. Anti-Kickback Law Prohibited Referrals

The Anti-Kickback law is a criminal statute that prohibits the knowing and willful offer, or payment of, and the knowing solicitation or receipt of “any remuneration directly, or indirectly, overtly or covertly, in cash or in kind,” to induce:

      1. referrals of patients
      2. the purchasing, leasing, ordering, or arranging for any good, facility, service or item paid for by a federal health care program (including Medicare and Medicaid).

While the Anti-Kickback law requires a knowing and willful violation of the law to establish liability, with the passage of the Patient Protection and Affordable Care Act, the Anti-Kickback law was amended to make clear that actual knowledge of an Anti-Kickback violation or the specific intent to commit a violation of the Anti-Kickback law is not required for conviction. Although the government is no longer required to prove that a defendant intended to violate the Ant-Kickback law itself, it must still prove that a criminal defendant intended to violate the law.

    1. Potential Penalties

Anti-Kickback law violations can subject a violator to criminal, civil, and administrative penalties. The Anti-Kickback law establishes that a violation of the law is a felony and can be punished by up to five years in prison and a fine of $25,000 per violation. Further, violators can be assessed civil monetary penalties of up to $50,000 per violation, and face an additional civil assessment of up to three times the amount of the kickback received.

In addition, Anti-Kickback law violations can result in the Secretary of Health and Human Services excluding a violator exclusion from acting as participating provider in a federal health care program. The effect of such an exclusion is that a provider can no longer receive payment for services from any federal health care program (including Medicare, Medicaid, and Tricare, among others) for services rendered. The Anti-Kickback law provides for mandatory exclusion if a violator is criminally convicted. Even negligent violations, which would not amount to criminal liability, can still result in a provider’s exclusion at the discretion of the Secretary.

    1. Anti-Kickback Law Safe Harbors

Due to the potential broad reach of the Anti-Kickback law into numerous transactions, the Office of Inspector General (OIG) of the United States Department of Health and Human Services has been granted authority to promulgate regulations, which exclude certain specific business and financial practices from criminal and civil prosecution under the act. These exclusions, known as “safe harbors,” are found at 42 C.F.R. § 1001.952.

For example, Anti-Kickback safe harbor transactions include, in part:

      1. investment interests
      2. space rental
      3. equipment rental
      4. personal services and management contracts
      5. referral services
      6. payments to bona fide employees
      7. physician recruitment efforts.

However, each safe harbor imposes precise and lengthy conditions for compliance in order for a transaction to fall within its scope. Thus, practitioners must evaluate each such transaction to ensure compliance.

Transactions which are neither specifically excluded or covered under a safe harbor regulation are not violations of the Anti-Kickback law per se. Instead, OIG evaluates such transactions on a case-by-case basis. In addition, parties who are uncertain whether their arrangements qualify for a safe harbor can request an advisory opinion from OIG.

The health law attorneys of FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including False Claims Act (qui tam cases) as well as violations of the Anti-Kickback and Stark self-referral laws, among others.

Our health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the Anti-Kickback law. In addition, FIDJ’s health care regulatory compliance attorneys have experience in reviewing and analyzing proposed transactions and arrangements to identify potential Anti-Kickback law pitfalls. We can also provide assistance with investigating possible violations of the Anti-Kickback law which exist in your organization, and in advising clients on corrective and remedial actions. When necessary, we can provide aggressive, experienced litigation services in civil and criminal actions related to these areas. FIDJ also handles provider acquisitions and offers strategic tax planning advice to health care providers and suppliers.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of health care law. Let us show you how we can help today.
For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of STARK Law compliance.

Generally speaking, the STARK Law, found at 42 U.S.C. § 1395nn, prohibits physicians from referring Medicare beneficiaries to an entity in which they, or an immediate family member, have a financial relationship for designated health services, unless an exception applies.

    1. STARK Basics

The STARK Law, which was passed in two parts, “STARK I” and “STARK II,” prohibits physicians from referring their Medicare and Medicaid patients to business entities in which the physicians or their immediate family members have a financial interest. More specifically, STARK prohibits physicians from making referrals to an entity for clinical lab services if the physician had a prohibited financial relationship with the entity. In addition, STARK prohibits physicians from referring Medicare patients for designated health services to an entity with which the physician (or immediate family member) has a financial relationship, unless an exception applies.

“Designated health services,” according to 42 U.S.C. § 1395nn(h)(6), include:

      1. Clinical laboratory services;
      2. Physical therapy service;
      3. Occupational therapy services;
      4. Radiology services;
      5. Radiation therapy services and supplies;
      6. Durable medical equipment and supplies;
      7. Parental and enteral nutrients, equipment, and supplies;
      8. Prosthetics, orthotics, and prosthetic devices and supplies;
      9. Home health services;
      10. Outpatient prescription drugs;
      11. Inpatient and outpatient hospital services;
      12. Outpatient speech-language pathology services.
    2. Financial Relationships and Prohibited Referrals

In order to understand STARK’s reach, it is important to understand how STARK defines a financial relationship and a referral.

The STARK Law broadly defines “financial relationships to include an ownership or investment interest in an entity or a compensation arrangement, states 42 U.S.C. § 1395nn(a). Compensation arrangement, in turn, is defined as “any arrangement involving any remuneration between a physician (or an immediate family member of such physician) and an entity” (42 U.S.C.§ 1395nn(h)(1)(A)). Remuneration, with certain exceptions not applicable to the instant case, includes, “any remuneration, directly or indirectly, overly or covertly, in cash or in kind” (42 U.S.C. § 1395nn(h)(1)(B)).

Referral, for purposes of the STARK Law, is defined as “the request or establishment of a plan of care by a physician, which includes the provision of designated health services,” states 42 U.S.C. § 1395nn(h)(5)(A). The regulations interpreting the statute also broadly define referral as, among other things, “a request by a physician that includes the provision of any designated health service for which payment may be made under Medicare, the establishment of a plan of care by a physician that includes the provision of such a designated health service, or the certifying or re-certifying of the need for such a designated health service” (42 C.F.R. § 411.351). A referring physician is defined in the same regulation as “a physician who makes a referral as defined in this section or who directs another person or entity to make a referral or who controls referrals made to another person or entity.”

    1. Potential Penalties

The STARK Law further provides that should any amounts be billed in violation of the act, the biller shall be liable for the overpayment and must refund that amount to the government, states 42 U.S.C. § 1395nn(g)(2). Violators of the STARK Law are subject to potential civil monetary penalties of up to $15,000 for each service billed.

In addition, violators also face potential False Claims Act (FCA), 31 U.S.C. § 3729 et seq., liability for knowingly submitting prohibited claims. Generally speaking, the FCA empowers private persons, known as relators, to file civil actions known as qui tam lawsuits and recover damages on behalf of the United States from any person who: 1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment; or 2) knowingly makes uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the government. As it relates to this case, “[f]alsely certifying compliance with the STARK Law in connection with a claim submitted to a federally funded insurance program is actionable under [the FCA].”

    1. STARK’s Exceptions for Certain Compensation Arrangements

The STARK Law also provides for several exceptions to the broad general prohibition on compensation arrangements between health care entities and referring physicians. If a hospital’s financial relationship with a physician comes under one of the exceptions, then it is not prohibited under STARK. The complete list of compensation arrangements exceptions are found at 42 U.S.C. § 13955nn(e).

    1. Relationships impacted by the STARK Law

Due to STARK’s breadth, numerous health care business relationships can trigger the need for a STARK analysis. Depending on the nature and structure of the transaction, such health care relationships may include:

      1. physician employment and independent contractor agreements
      2. medical director agreements
      3. hospital/physician recruitment arrangements
      4. arrangements and agreements between physicians and other designated health service providers
      5. medical equipment and office space leasing agreements

In addition, STARK’s prohibitions also apply within a physician practice group setting. Thus, if a physician practice group provides multiple designated health services within its practice, STARK may be implicated and the relationship between the practice group and the individual physicians must comply with a STARK exception.

The health law attorneys of FIDJ have extensive experience handling the various regulatory and compliance issues surrounding the provision of Medicare and Medicaid services, including False Claims Act (qui tam cases) as well as violations of the Anti-Kickback and STARK self-referral laws, among others. Our health care regulatory compliance and corporate law attorneys have experience in structuring arrangements and transactions to comply with the STARK Law. In addition, FIDJ’s health care regulatory compliance attorneys have experience in reviewing and analyzing proposed transactions and arrangements to identify potential STARK Law pitfalls. We can can also provide assistance with investigating possible violations of the STARK Law which exist in your organization and in advising clients on corrective and remedial actions. When necessary, we can provide aggressive, experienced litigation services in civil and criminal actions related to these areas. FIDJ also handles provider acquisitions and provides strategic tax planning advice to health care providers and suppliers.

FIDJ’s health care practice group combines experienced lawyers and consultants from several practice areas to provide comprehensive representation in all aspects of health care law. Let us show you how we can help today.

For more information, please contact us at(305) 350-5690 or contact@fidjlaw.com for a free consultation.

FIDJ represents nursing homes in connection with state and federal surveys from inception through the appellate process.

Health care providers receiving Medicare and Medicaid reimbursement are subject to state and federal surveys aimed at determining substantial compliance with Conditions for Coverage (CfC) and Conditions of Participation (CoP). At a minimum, skilled nursing facilities (SNF) are subject to annual surveys once every 15 months. Typically, however, even the best SNFs will experience more frequent complaint surveys. In either event, the SNF is advised of its alleged deficient practices (if any) through the surveying agency’s issuance of a Statement of Deficiencies (Form CMS-2567). The provider has 10 calendar days to submit its Plan of Correction in response thereto.

An acceptable Plan of Correction must include five core elements:

  1. How corrective action will be accomplished for those residents found to have been affected by the deficient practice
  2. How the SNF will identify other residents having the potential to be affected by the same deficient practice
  3. What measure will be implemented (or systematic changes) to ensures the that deficient practice will not reoccur
  4. How the SNF plans to monitor its performance to make sure that solutions are sustained
  5. Dates when corrective action will be completed

Since Statements of Deficiency and Plans of Correction ultimately become available for public consumption, it is advisable that SNFs include a disclaimer in the Plan of Correction, where applicable, noting that the SNF denies and disputes the citation(s) and submits its Plan of Correction to comply with applicable state and federal regulations.

In the same 10 calendar days an SNF has to submit its Plan of Correction, it must also request Informal Dispute Resolution (IDR). IDR is the process by which SNFs can informally dispute regulatory deficiencies. It is important to note that neither the submission of a Plan of Correction nor the request for IDR tolls the time within which a Request for Hearing before an Administrative Law Judge (ALJ) must be filed (assuming that the SNF wishes to pursue its appellate rights).

Generally, a SNF has 60 days from receipt of its Statement of Deficiencies (Form CMS-2567) to file a timely Request for Hearing before an ALJ. At the ALJ level, the Centers for Medicare and Medicaid Services (CMS) has the initial burden of making a prima facie case of a regulatory violation. To that end, CMS may rely on the Statement of Deficiencies to make its prima facie case of a deficiency, but only if the factual findings and allegations it contains are specific, undisputed, and not inherently unreliable. If CMS meets its burden, the SNF then bears the burden of persuasion to demonstrate, by a preponderance of the evidence, that the SNF was, in fact, in substantial compliance.

Either CMS or the SNF may appeal an ALJ’s unfavorable decision to the Departmental Appeals Board (DAB). The failure of either party to file a timely appeal renders the ALJ decision final agency action. An unfavorable decision of the DAB may be appealed to the federal district courts and, ultimately, the U.S. Courts of Appeals.

FIDJ’s health care practice group has the experience necessary to guide you through each stage of the survey process, from the issuance of the Statement of Deficiencies through the appellate process. For more information call (305) 350-5690 or email contact@fidjlaw.com .

FIDJ serves as outside general counsel to many of its clients, affording such clients the benefits of an “on-call” attorney with a mutually beneficial fee structure, without the expensive overhead of an in-house attorney.

There comes a time when every business, from the start-up to the large privately-held entity, needs the guidance and counsel of an experienced attorney and the legal expertise necessary to accomplish multidisciplinary transactional work and complex litigation. Yet, many businesses either overlook the importance of having an experienced attorney “on call” or spend significant sums of money on in-house attorneys (including the associated overhead of research materials and support staff), who simply lack the experience necessary to handle all of the businesses’ legal needs.

FIDJ possesses the legal experience necessary to serve as outside general counsel in areas including, but not limited to:

  • Corporate formation, including the drafting of corporate documents (e.g. operating agreements, shareholder agreements, shareholder resolutions, consts, etc.)
  • Corporate governance matters, including compliance with state governance laws (e.g. meeting requirements, notice requirements, voting requirements, fiduciary duties, etc.)
  • Taxation
  • Mergers and acquisitions
  • Preparation, review, and negotiation of contracts with customers, partners, vendors, landlords, tenants, etc.
  • Employment matters, including counseling on discriminatory practices, hiring/firing issues, wage and hour issues, employment contracts, non-compete agreements, and general compliance with all appropriate state and federal regulations
  • State and federal compliance for the appropriate industry (e.g. counseling skilled nursing facilities on compliance with state and federal regulations concerning patient care, Conditions of Participation, Conditions of Coverage, STARK Law, Anti-Kickback compliance, HIPAA compliance, deficiency citations, civil monetary penalty appeals, etc.)
  • Day-to-day legal advice and counseling on general and industry-specific matters, with particular expertise in health care, physician medical practices, customs brokers, money services businesses, and other high-regulated businesses
  • Commercial and civil litigation

FIDJ works with each client to develop a suitable fee structure, which makes the relationship both advantageous and cost effective. When our firm serves as outside general counsel, its clients receive the benefit of a full-service law firm, minus the costs associated with bringing the vast array of legal experience and knowledge in-house. In addition, some fee structures remove the “billable hour” from the equation, thereby permitting clients to pursue their reasonable legal objectives without the worry of unexpected legal invoices.

Let FIDJ show you how it can help your business. For more information, call (305) 350-5690 or email contact@fidjlaw.com .

The health law attorneys of FIDJ are knowledgeable about the various regulatory and compliance issues home health agencies face.

Home health agencies play a critical role in the care and treatment of Medicare and Medicaid beneficiaries.

Home health agencies accept patients for treatment with the expectation that the patient’s medical needs can be adequately met by the agency in the patient’s place of residence (42 C.F.R. § 484.18). Home health services include part-time or intermittent skilled nursing care; physical, occupational, and speech therapy; medical social work; and home health aide services. Please refer to the Medicare Benefits Policy Manual, Pub. No. 100-02, Ch. 7, § 40 for additional information.

In order to receive proper payment from Medicare and Medicaid, it is essential that a home health agency maintain adequate documentation of all aspects of a beneficiary’s care, including for example: initial certifications and plans of care, verbal orders, prescriptions, initial and follow-up home health nursing certifications, daily nursing notes, and physical therapy assessments and notes. In addition, section 6407 of the Patient Protection and Affordable Care Act mandates that, prior to certifying a patient’s eligibility for the home health benefit, the physician responsible for performing the initial certification must document that the physician or a permitted non-physician practitioner (“NPP”) (which includes a nurse practitioner, a clinical nurse specialist, a certified nurse-midwife, or a physician assistant) has had a face-to-face encounter with the patient (42 C.F.R. § 424.22). As part of this documentation, the physician or NPP must document that he or she:

  • saw the patient
  • the patient’s clinical condition at the time of the encounter supports the patient’s homebound status
  • the need for skilled services

The face-to-face encounter must occur no earlier than 90 days prior to the start of, and no later than 30 days after the start of, home health care. The certifying physician must document this face-to-face encounter either on the initial certification which the physician signs, or in a separate signed addendum to the initial certification. Inadequate clinical documentation often times can result in payment denials, audits, and subsequent overpayment determinations by Medicare Administrative Contractors (MACs).

The health care practice group of Fuerst, Ittleman, David & Joseph has successfully assisted clients in obtaining reimbursement through a multifaceted approach of ensuring adequate regulatory compliance, billing and coding accuracy, and litigation when necessary. Our Florida health care law firm has successfully represented clients before the Centers for Medicare and Medicaid Services, the Florida Agency for Health Care Administration, and the Department of Justice on a variety of issues including Medicare and Medicaid suspensions, overpayment appeals, prepayment reviews and audits, and health care fraud investigations. When necessary, our Florida health care attorneys will take the fight to CMS and AHCA challenging the validity of the very rules upon which the agencies claim their power. An example of our firm’s previous success in rule challenges can be read here.

As home health agencies increasingly draw the eye of federal and state regulators and law enforcement authorities, it is critical that the home agency and its attorneys have a high level of familiarity with the laws and regulations governing home health agencies. The health care lawyers at FIDJ work with these laws and regulations on a daily basis and are frequently asked by health care clients for advice regarding how to comply. In many cases, our health care attorneys have been asked to litigate regarding these complex issues against the state and federal governments. Our Florida health care law firm has extensive experience litigating health care fraud cases.

Compliance is critical. With health care, tax, corporate, litigation, and white-collar criminal defense practice groups, FIDJ can provide comprehensive legal support for your home health agency.

For more information, please contact us at (305) 350-5690 or contact@fidjlaw.com.

FIDJ’s health care practice group has extensive experience in representing clients throughout the Medicare overpayment appeals process.

A Medicare overpayment is a payment which the Centers for Medicare & Medicaid Services (CMS) alleges that a Medicare supplier or provider has received in excess of amounts due and payable under the Medicare Act and its applicable regulation. Once CMS has identified an overpayment, the amount of overpayment is considered a debt owed by the provider/supplier to the federal government.

Identification of Overpayments

Provider and supplier overpayments are often identified through post-payment audits conducted by a Recovery Audit Contractor (RAC) as part of CMS’s Recovery Audit Program.

As described by CMS, “[t]he Recovery Audit Program’s mission is to identify and correct Medicare improper payments through efficient detection and collection of overpayments made on claims of health care services provided to Medicare beneficiaries. . . .” Overpayments may also be identified by Zone Program Integrity Contractors (ZPIC) audits.

Upon identification of an overpayment, the Medicare Administrative Contractor will commence the overpayment recovery process. The overpayment recovery process is typically commenced by the issuance of a notice of overpayment and initial demand letter for repayment by the MAC. If the contractor does not receive payment in full within 40 calendar days after the date of the first demand letter, the contractor will begin recoupment. During recoupment, CMS recovers the overpayment amount owed from current Medicare payments due, and future claims made by the provider until such time that the overpayment is recovered in full. All Medicare payment ceases until the overpayment is satisfied.

However, a provider or supplier may avoid recoupment if it acts quickly to assert its administrative appeals rights.

Appeal Rights for Providers

The Medicare and Social Security Acts set forth a system of administrative appeals, which a provider must use should it disagree with a coverage determination of the secretary. The Medicare overpayment appeals process consists of five stages that can be summarized as follows:

First, the contractor issues an initial determination as to payment, including, but not limited to, whether an individual is entitled to benefits and the amount of benefits available (42 U.S.C. § 1395ff(a); 42 C.F.R. §§ 405.920, 405.924). A provider who is dissatisfied with the initial determination may request that the contractor perform a redetermination within 120 days of receiving the notice of overpayment (42 U.S.C. § 1395ff(b); 42 C.F.R. § 405.940). The provider can prevent recoupment from occurring if the contractor receives a request for redetermination within 30 days of the notice of overpayment. However, it should be noted that although the recoupment process will begin, should a request for redetermination not be received within 30 days, Medicare will cease recoupment efforts at whatever point that a redetermination request is received, but Medicare may not refund any recoupment already taken until such time that a provider establishes that the alleged overpayment was incorrect.

During the redetermination stage, the contractor will conduct an independent review of the initial determination (42 C.F.R. § 405.948). After reviewing the evidence and findings upon which the initial determination was based, as well as any additional evidence submitted by the parties or that the contractor obtains on its own, the contractor renders a decision affirming or reversing, in whole or in part, the revised initial determination (42 C.F.R. §§ 405.948, 405.954). Should the contractor affirm the original overpayment determination, recoupment will commence on the 61st day following the redetermination decision. However, Medicare will again stop recoupment following an unfavorable or partially favorable, redetermination if a provider files for reconsideration (42 C.F.R. § 405.379).

A party to a redetermination who is dissatisfied may request reconsideration by a Qualified Independent Contractor (QIC) within 180 days of the redetermination. A reconsideration consists of an independent, on the record review of an initial determination, which includes the redetermination and all issues related to the payment of a claim (42 U.S.C. § 1395ff(c); 42 C.F.R. §§ 405.960; 405.968). Upon receipt of a timely and valid request for a reconsideration of an overpayment, the Medicare contractor shall cease recoupment of the overpayment. If recoupment has not yet commenced, the contractor is prohibited from initiating recoupment until the QIC has rendered a decision.

A party may appeal an adverse reconsideration to an Administrative Law Judge (ALJ), who holds an evidentiary hearing at which the provider may present testimony to support its claim (42 U.S.C. § 1395ff(b)(1); 42 C.F.R. §§ 405.1000, 405.1002). A party must file its request for administrative hearing, in writing, within 60 days of receipt of an unfavorable, or partially favorable, reconsideration. Medicare ALJ’s are within the Office of Medicare Hearings and Appeals, (OMHA), which is part of HHS, but is not a component of CMS. CMS or its contractors may, but are not required to, participate in the ALJ hearing. The ALJ considers “all the issues brought out in the initial determination, redetermination, or reconsideration,” according to 42 C.F.R. § 405.1032(a). The ALJ may consider a “new issue” if the issue “(i) could have material impact on the claim or claims that are the subject of the request for hearing; and (ii) is permissible under the rules governing reopening of determinations and decisions (42 C.F.R. §§ 405.980, 405.1032(b)).

Parties dissatisfied with an ALJ’s decision may request the Medicare Appeals Council (MAC) to review the ALJ’s decision, states 42 U.S.C. § 1935ff(d)(2); 42 C.F.R. § 405.1100. The MAC conducts a de novo review of the ALJ’s decision considering all the evidence of record and may adopt, modify, or reverse the ALJ’s decision or remand the case to an ALJ for further proceedings (42 C.F.R. §§ 405.1100-405.1128). The decision of the MAC constitutes the final decision of the secretary, according to 42 C.F.R. § 405.1130. Finally, a party dissatisfied with the secretary’s final decision may seek judicial review by commencing a civil action in federal district court (42 U.S.C. §§ 405(g), 1395ff(b)(1)(A); 42 C.F.R. §§ 405.1130, 405.1136).

For more information, please contact us at (305) 350-5690 or contact@fidjlaw.com.

Goverment Agency Litigation

While some firms pride themselves for maintaining friendly and amicable relationships with federal regulators, FIDJ has distinguished itself for its willingness to take the government to court as necessary to pursue its clients’ best interests. Indeed, sometimes litigation is unavoidable, and in those case the firm has litigated against a variety of government agencies, including IRS, FDA, FTC, USDA, DOJ and a number of state governments. The firm seeks to avoid litigation whenever possible, but if a government agency is regulating beyond its delegated authority or refusing to negotiate in good faith, the firm is ready, willing and able to pursue its clients’ interests in court.

Litigating against the government requires experience and a breadth of knowledge across a wide range of applicable law.

First, in any regulatory matter, and especially those where a client’s business practices may be exposed to the bright lights of a courtroom, counsel must carry a sophisticated understanding of its client’s business, including applicable statutes, regulations, guidance documents, and industrywide best practices. We pride ourselves for taking the time to understand how each of our clients operate and how they are regulated. Second, in any matter involving complex litigation, counsel must be familiar with state and federal rules of civil procedure, as well as the local rules governing litigation in individual courts, and our decades of litigation experience gives us that knowledge. Third, many complex disputes against the government carry overtones of criminal liability, and we have extensive experience representing clients in grand jury investigations and white collar criminal prosecutions which allows us to recognize when a regulatory dispute has turned criminal. Fourth, litigating against the government requires a deep understanding of the varieties of deference courts are required to give to regulatory agencies, which may vary depending upon the precise nature of the dispute and the manner by which the agency has chosen to regulate in any given industry. Finally, counsel must understand the limited subject matter jurisdiction afforded to federal district courts, as well as the limited jurisdiction often afforded to federal agencies by Congress. We routinely address these issues in our practice, and are well situated to argue them in court when litigation is our client’s only option.

FIDJ is highly experienced in litigating against the government in a variety of forums, and we pursue each case with the singular goal of maximizing the rights of our clients. To contact one of our experienced government agency litigation attorneys, contact us at (305) 350-5690 or contact@fidjlaw.com for a free consultation