Wednesday, July 31, 2013

Lower BAC for drunk driving on the way?

Mark Mandell, Esq

According to the release of the Michigan Annual Drunk Driving Audit, the number of drunk driving arrests in Michigan increased in 2012, as did the number of fatalities and injuries. 
Last year, the state made 37,182 alcohol- and drug-related driving arrests.  Deaths resulting from drug and alcohol induced crashes increased 7.2%, from 319 in 2011 to 342 in 2012.  Non-fatal injuries also increased.

While there was an increase last year, the overall trend in Michigan is positive – over the past 5 years, the number of traffic deaths involving alcohol has decreased 11.4%.

However, many believe Michigan’s drunk driving numbers are still too high and more needs to be done to deter this conduct.  For instance, the National Transportation Safety Board (NTSB) released its May 2013 Safety Report and advocates for decreasing the per se Blood Alcohol Content (BAC) limit from 0.08 to 0.05.

According to the report, studies have shown that a decrease in the BAC limit down to 0.05 reduces traffic fatalities by 8-12% for people ages 18-49.  In fact, more than 100 countries have established maximum per se BAC limits at or below 0.05 – including 25 of the 27 EU member countries.  Many traffic safety and public health organizations view BAC levels higher than 0.05 as posing an unacceptable risk for driving.

Opponents to the lower BAC limit point out that the majority of alcohol-impaired drivers in fatal crashes have BAC levels significantly higher than 0.08.  However, according to the NTSB, lowering the per se BAC limit changes the drunk-driving behavior of drivers at all BAC levels.  As a consequence, reducing the limit could reasonably be expected to have a broad deterrent effect on all drivers. 

Whether the per se BAC limit gets lowered is in the hands of the legislature; however, despite NTSB’s recommendation, there are no pending bills taking such action.  If you are facing drunk driving charges, or have questions regarding the law, contact experienced criminal defense attorney Mark Mandell at 888-674-1189 or online at

Tuesday, July 30, 2013

Native American Veterans to Obtain Help

Brig. Gen. Carol Ann Fausone (ret.)
As I have traveled the country helping veterans, one group that is underserved are Native Americans.  My friends in western State Veterans Affairs departments have told me of the issues these Native American veterans face.  So it is with some pleasure that I learned the VA is going to focus on these veterans. 
Native Americans have the highest rates of enlistment into the armed services and that there are well over 500 sovereign tribes. The VA has initiatives  such as the 2010 VA-IHS Memorandum of Understanding in which the VA and Indian Health Service (IHS); the 2011 Tribal Consultation Policy in which the VA continues their discussion with tribes; and the 2012 Reimbursement Agreement, in which the VA more easily reimburses IHS facilities for the benefit of Native vets.
No veteran should be left behind.  Our Native American veterans deserve all the benefits to which they are entitled.

Wednesday, July 24, 2013

New Study Suggests Traumatic Brain Injury from Sports May Be Behind Military Suicides

Traumatic brain injury from before combat may be partially to blame for the rise of veteran suicides, according to researchers.

The unusual number of sports players who experienced TBI (traumatic brain injury) and later committed suicide, and the number of military vets who experienced TBI while in combat and later committed suicide may not be a coincidence, say researchers.

"Research on traumatic brain injury is of utmost concern right now for veteran disability advocates," commented veterans disability lawyer James Fausone.  

A new study published in the journal JAMA Psychiatry has proposed a link between multiple concussions or traumatic brain injuries and suicidal actions later. In addition, the researchers found that a significant number of the men who experienced military-related TBI had a sports-playing history, which indicates that they may have experienced TBI on the playing field years earlier, as well.

The study, conducted by an Air Force psychologist, looked at 161 individuals sent to his clinic for suspected concussions. Those interviewed were asked about any history of head trauma, any battles with depression, PTSD or struggling with suicidal thoughts. The study concluded that many of the head injuries referenced by the study participants, in some cases as many as 6 injuries by one individual, were sustained prior to military service. Approximately 20 percent of the study participants reported that they experience concussion during their basic training, and some reports that they had sustained as many as 15 different head injuries during their tour of duty.

Post-traumatic stress disorder and depression are both high-risk factors for suicide, and combat experience typically would only increase their severity, said the researchers. Individuals who already experience one or both of these conditions and then join the service would explain why there are such high levels of suicide in the Armed Forces.

The researchers suggest that head trauma may set up a pre-existing disposition towards suicidal idealization or action which is then exacerbated by additional head trauma during combat. Exposure to an IED (improvised explosive device) buffets the brain within the skull by concussive shock waves, which can cause bleeding in the brain at numerous, hard-to-detect sites, causing damage. Subtle traumatic brain injury can be impossible to detect by an average physical; it is possible that many military personnel entered the service well enough to serve, and then subsequent damage further made them more susceptible to suicidal thoughts than someone who had not sustained sports-related concussions or other head injuries.


Monday, July 22, 2013

Amid Fraud Crisis, Medicare’s Accounting System Lacking Basic Information

Breeda O'Leary, Esq.

Despite the government’s aggressive approach in criminally prosecuting fraudulent providers, a report from the Department of Health and Human Services inspector general found that Medicare’s new accounting system failed to automatically extract critical data regarding providers.  This failure may lead to the inability to collect more than $543 million in overpayments to Medicare providers.

In 2010, Medicare overpaid providers more than $9.6 billion.  Since that time, Medicare has implemented a new accounting system – a system that failed to automatically extract provider and contractor information from the old accounting system.  As a result, Medicare does not have provider or contractor information critical to collecting from those that were previously overpaid.

In addition, the new Medicare accounting system allows information about providers to remain outdated, with little consequence for providers who fail to update their contact information.  Providers receive payments via direct deposit, thus eliminating the incentive to ensure that Medicare has a correct address in its accounting system.

According to agency spokesman Brian Cook, “Reducing the incidence of overpayments is a high priority for [Medicare].”  However, once a provider has been overpaid, having detailed information regarding the provider, such as a proper contact address, is critical to notifying the provider and collecting any overpayments.

While criminal prosecution of fraudulent providers continues to remain a priority for the government, the inspector general’s report highlights glaring deficiencies in Medicare’s new accounting system.  Medicare should address these deficiencies with the same sense of urgency as the criminal prosecution of fraudulent providers.

If you have been contacted concerning an overpayment or a possible criminal investigation, contact the experienced and professional fraud team at Fausone Bohn, LLP for sound legal advice.  Contact Breeda O’Leary at (248) 380-0000 or online at 

To read the article about the deficiencies in Medicare’s new accounting system, please visit:


Thursday, July 18, 2013

Veterans Need Better Mental Health Support From Veterans Administration, Study Shows

Though mental health support can literally save the lives of returning veterans, many must wait years for the help they need.
A new study has determined that vets with mental health conditions including post-traumatic stress disorder (PTSD) and depression typically must wait an average of two years after returning from deployment before their mental health issues are addressed by Veterans Affairs.
"When the vets do begin to receive mental health treatment, the study also found that care is often fragmented and not as effective as is needed," commented veterans disability lawyer James Fausone.
The study, published in the journal Psychiatric Services in December 2012, looked at vets of the Iraq and Afghanistan wars between 2001and 2011 processed by Veterans Affairs (VA) medical centers.  These men and women typically were given with eight sessions of mental health treatment, a number considered far lower than that in the civilian population looking for PTSD or depression support, and widely considered "minimally adequate." Seventy-five percent of vets who went to the VA for support did not even receive what researchers dubbed "minimally adequate care."
Numerous issues may delay mental health care for veterans, including the social stigma that still may longer around mental health issues for some people, including concern that seeking care may jeopardize future job prospects. The overburdened VA system also means that many vets have long waits to get appointments for initial assessment; the average wait for a mental health evaluation at the VA was 50 days, according to a 2012 report from the VA's inspector general.
The VA has announced that it is adding additional staff and partnering with community health centers to broaden support for veterans in their communities; 15 clinics in seven U.S. states are now able to treat veterans with the VA's approval.
But more is needed, say mental health advocates.  The VA inspector general's report found that approximately 30 percent of high-risk (i.e., potential suicidal) vets were not receiving the mandated multiple follow-up mental health visits within 30 days after an emergency hospitalization. There was no documented contact by the VA of even reaching out to those vets to remind them of follow-up appointments.

Wednesday, July 17, 2013

Medicare’s Disproportionate Fraud Rate

Mark Mandell, Esq.

It is difficult to truly understand the enormous fraud problem in the Medicare system.  To put it in perspective, look at the fraud rates of other industries:

             Credit card industry fraud - 0.04%.
            JPMorgan & Chase Co. fraud - 0.6%.
Medicare?  It has a fraud rate of 8.5%.  Incredibly, Medicare and Medicaid fraud totals a whopping $60 billion annually.  That’s $60 billion taxpayer dollars not providing care to seniors but instead lining the pockets of criminals.

U.S. Representative Peter Roskam from Chicago has introduced a bill into Congress (HR 2305) that aims to update the Medicare system to combat fraudulent behavior and improper payments.

Some of the changes introduced in Rep. Roskam’s bill include updating the Medicare payment system.  Currently, the money goes out the door without any rigorous fraud checks.  The proposed change is modeled after the credit card industry – Medicare claims would go through two separate and distinct fraud checks at the beginning and the end of the process.  These checks occur before the money is paid out.
Additionally, the bill makes changes to reduce incidents of “dead” doctors prescribing drugs and increasing criminal penalties.  The bill also encourages increased education for seniors to identify and report fraud in the system.  Lastly, the bill increases communication between the Medicare and Medicaid systems to bolster security and fight improper payments.

With so many Americans paying into the Medicare system and the prospect of that system going bankrupt as early as 2026, we can’t afford to needlessly pay out $60 billion per year to criminals.  Changes, like those introduced by Rep. Roskam, need to be made to bring Medicare back on track.

If you have questions about Medicare or other types of fraud, contact the experienced team of fraud experts at Fausone Bohn, LLP at (248) 380-0000 or online at


Monday, July 15, 2013

House Okays Some Changes to TRICARE, Rejects Military Pay Cap

TRICARE, also known as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), provides civilian health benefits for military personnel, vets and their dependents. As the defense budget continues to be slashed, many vet advocates have expressed concern that TRICARE would be affected. But the House armed services subcommittee on military personnel rejected the White House's plan to substantially increase TRICARE fees over the next five years for military retirees and their families. It also rejected a proposal to vary the fees, based on individual retiree's pay levels.

The House panel did agree to allow a $4 co-pay increase for retirees and their family members below the age of 65 for outpatient care. Doctor visit co-pays are slated to increase to $16, while the co-pay for mental health care visits will stay at $12. The $4 increase is expected to save funds for health programs and medical research. The Department of Defense has not been authorized to increase any additional TRICARE fees.

The Secretary of Defense along with the Joint Chiefs of Staff had pushed for higher TRICARE fees to save fund for supplies, training, maintenance, and weapons procurement from being slashed. But resistance to boosting fees or capping pay from bipartisan members of the House Armed Services Committee has so far kept fees low. Additionally, Defense officials have reportedly overstated health care costs to the tune of $400 million a year, on average, to fund other defense accounts.

President Obama may decide to cap the military pay raise regardless of congressional approval by declaring a national emergency or claiming that "serious economic conditions" make it necessary, and presenting "alternative pay adjustment" plans to Congress by the first of September. It is hoped that the White House will not decide to do so, as there is currently in place a proposed 1.8 percent raise for military pay as of January 2013.

The Department of Defense currently plans to roll out a plan to stop TRICARE Prime coverage for the more than 170,000 current TRICARE enrollees who live more than 40 miles from a military treatment facility.  Retirees below the age of 65 and their families will be forced to use TRICARE Standard, a more economic version of the fee-for-service program. As of October 1, TRICARE beneficiaries age 65 and up will be required to have their long-term medications filled via mail order or on base, in order to save millions of dollars a year for TRICARE that would otherwise go to local pharmacies.

Friday, July 12, 2013

One Year Delay in Enforcement of Employer Mandate

Tariq Hafeez, Esq.

The Obama Administration announced on July 2, 2013 that it would delay the implementation of a key provision of the Affordable Care Act--the employer mandate which will require employers with 50 or more workers to provide affordable health coverage to employees or risk tax penalties of up to $2,000 for each full-time employee that did not get health coverage.  The employer mandate was originally to take effect on January 1, 2014 but now will not be implemented until January 1, 2015.

The employer mandate has been a big source of anxiety and criticism in the business community as many business owners feel that the provision would be too costly to implement. Additionally,  confusion remains on which businesses would be subject to the mandate as definitions of “full time” employees and what constitutes “affordable” insurance are complicated and subject to interpretation.
The delay in implementation of the employer mandate does not affect the other implementation timelines of the Affordable Care Act, including the opening of the health care exchanges in October 2013 and new tax credits to help individuals buy health insurance.

If you have questions about health care fraud or other legal issues, please contact Mark Mandell or Tariq Hafeez at 248.380.0000 or online at


Thursday, July 11, 2013

Bipartisan Push to End Veteran Claim Backlog

The backlog of Veteran Affairs disability claims has risen by more than 2,000 percent during the past four years, while the agency's budget has been increased by only 40 percent.
Now Congress is pushing for President Obama to "take direct action" to end the backlog. A bipartisan letter helmed by Reps. Patrick Murphy, D-Fla. and Mike Coffman, R-Colo. and cosigned by 164 House Republicans and Democrats, is urging the white House to run interference in order to help the more than 600,000 vets currently waiting for their overdue disability claims. The average time they wait to have a first-time filing processed is between 317 and 327 days, the letter states. Many vets are waiting as long as two years for their claim to be processed, and there are vets who waited as many as 1,000 days.
This letter is not the first of its kind – a similar one was sent a month ago by 67 senators which also requested that President Obama take action by becoming involved in solving the disability claims backlog at the Department of Veterans Affairs. Some cities are running a lag time longer than others; the average wait for a disabled vet in New York is 642 days, while the average wait for a vet in Philadelphia is 510 days. While Congress has approved more funding and more employees for the Department of Veteran Affairs, the backlog situation has not improved. A spokesperson for Veterans Affairs has stated that the agency has processed more than 4 million claims in the past four years – a record number – while admitting that more needs to be done.
The VA's goal is to process the backlog of claims by the end of 2015 as the system completes a switch from paper-based processing to a new electronic system. A backlogged claim is any claim 125 days or older. The electronic system has been rolled out in 20 offices throughout the United States, and should be in all of the 56 offices by the end of 2013.
In response, White House press secretary Jay Carney said that the President is "deadly serious" about clearing the extensive backlog by 2015. But while the backlog issue predates Obama's administration, advocates are pushing for him to become more hands-on in order to get the system resolved. According to Iraq and Afghanistan Veterans of America (IAVA), more than 575,000 vets have been waiting for their claim to be processed for more than 125 days.

Wednesday, July 10, 2013

Recent Decision Brings Significant Consequences for Step-Parent Adoptions

Melissa Cox, Esq.

In an astounding opinion issued on April 18, 2013, Michigan’s Court of Appeals held that the trial court improperly granted a step-parent adoption under the adoption code, MCL 710.51(6), where the father with joint legal custody objected to termination of his parental rights, In the Matter of AJR, Docket No. 312100, [For Publication]. The Court of Appeals’ (“COA”) statutory interpretation of one word from MCL 710.51(6) made all the difference.

The COA held that since the child’s biological father was granted joint legal custody in the parties’ prior Judgment of Divorce, his parental rights could not be terminated pursuant to MCL 710.51(6) to facilitate a step-parent adoption without his consent.

Respondent Father’s trial attorney did not raise this objection in the trial court.  However, rather than refusing to consider the unpreserved issue for appeal, the COA said this:

… this Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented. Here, the issue presented is strictly an issue of law–statutory interpretation–and all of the requisite facts have been presented. Thus, in the interests of justice, we will review the issue. [Slip page 2, citations omitted]

The facts of the case were ripe for a step-parent adoption.  Respondent biological father and mother were married and had one child. They divorced. The mother was granted sole physical custody of the child, with both parents sharing joint legal custody. Father was ordered to pay child support and was granted him reasonable visitation with the child.

Years later, the mother married petitioner-stepfather. Approximately two years after their marriage, the mother and stepfather filed a petition for stepparent adoption and requested that the court terminate the parental rights of respondent father to allow stepfather to adopt. They properly alleged that respondent failed to provide regular and substantial child support and failed to maintain regular and substantial contact with the child during the two years prior to filing of the petition.

Respondent Father objected to termination of his parental rights. After a two-day trial, the trial court concluded that Respondent Father’s parental rights were lawfully terminated pursuant to MCL 710.51(6) because (1) respondent substantially failed to provide support for the child for the two years preceding the filing of the petition, and (2) respondent substantially failed to visit or communicate with the child during this two-year period. The trial court entered an order of adoption. On appeal, the Michigan Court of Appeals reversed, holding that MCL 710.51(6) does not apply to a parent who shares joint legal custody of a child.

Step-parent adoptions have been granted liberally under MCL 710.51(6) since enactment of the Adoption Code in 1974 on the requisite grounds that the respondent parent has failed, for a period of two years immediately preceding filing of the petition, to maintain regular and substantial contact with the child and has also failed to maintain a regular and substantial child support for the child.

Certainly, the objective of the Adoption Code is to achieve permanency, stability and security for children.  This Court of Appeals decision effectively prevents the stepparent adoption of any child whose absent parent holds a piece of paper stating that they have joint legal custody even if they have essentially abandoned the child.

The decision in In re AJR begs for a remedial legislative amendment to the Adoption Code. Any parent who substantially fails to provide support for his or her child for the two years preceding the filing of a step-parent adoption petition and who substantially fails to visit or communicate with his or her child during this two-year period should fall within MCL 710.51(6), and a Court should be empowered to terminate parental rights and grant a step-parent adoption.
If you have questions about adoptions or family law, contact attorney Melissa Cox at (248) 380-0000.

Tuesday, July 9, 2013

New Brownfield Non-Environmental Eligible Activities Guidance

Paul Bohn, Esq.

The Michigan Economic Development Corporation (MEDC) released this month an updated and extensively revised guidance document regarding “non-environmental eligible activities” on Brownfield redevelopment sites.  The guidance is used to determine whether capture of state school taxes will be allowed for certain activities not related to environmental conditions, lead and asbestos abatement, or (only available in qualified local units of government also referred to as “Core Communities”) certain infrastructure improvements such as roads, landscaping, sidewalks, lighting, sanitary and storm water management.  Such “non-environmental” activities include partial and complete demolition of a building’s interior or exterior.  Also included are “site demolitions” such as the removal of abandoned utilities, underground storage tanks, parking lots, roads, or other similar structures.

While the new MEDC guidance is specific to school tax capture eligibility, it can also be used as a roadmap for local governments regarding the eligibility for these activities for local tax capture via a Brownfield Plan, which they control.  This guidance document expands the definition of infrastructure and site improvements eligible under a Brownfield plan beyond all prior guidance. 

If you are a local unit government or a private sector developer interested in learning more about the applicability of this expanded guidance to your Brownfield projects, please contact Paul Bohn at 248.380.9988 or

Friday, July 5, 2013

Pharmacist Pays Big for Healthcare Fraud

Mark J. Mandell, Esq.

A medical professional convicted of health care fraud stands to lose nearly everything.

On June 10, Northville pharmacist Lokesh Tayal was convicted of one count of health care fraud conspiracy and one count of conspiracy to distribute controlled substances – both of which are felonies.  Mr. Tayal was sentenced to 5 years and 8 months of imprisonment and ordered to pay restitution of more than $3.6 million.

In addition, the Michigan Department of Licensing and Regulatory Affairs (LARA) has suspended Mr. Tayal’s pharmacy license. 

The conviction and license suspension stem from a case involving multiple area pharmacists.  According to the U.S. Attorneys on the case, the pharmacists participated in an elaborate scheme to defraud Medicare, Medicaid, and Blue Cross Blue Shield.  The pharmacists paid cash kickbacks and other illegal remuneration to physicians to get them to write prescriptions that were medically unnecessary.
The pharmacists then billed for expensive medication that was never disbursed or was not medically necessary, according to the U.S. Attorney’s office.

The U.S. Attorney summarized the Federal government’s current stance on health care fraud when she said “these defendants stole money from the Medicare and Medicaid programs, which are designed to provide health care and medicine to some of our most vulnerable citizens.” 

With the recent crackdown on fraud, medical professionals are facing not only hefty prison time and fines, but also the loss of their livelihood – revocation of their professional licenses.  If you have been indicted or are concerned about health care fraud, contact the experienced and professional fraud team at Fausone Bohn, LLP for sound legal advice.  Contact us at (248) 380-0000 or online at 

To read the article about these fraud convictions, please visit:


Wednesday, July 3, 2013

Expert Advice Avoids Problem

James G. Fausone
Veteran Advocate
Sometimes we get asked: “Why do I need a law firm to help on my disability claims the doctors agree?”  About thirty years ago, I learned a very valuable lesson from a wise old trial judge.  Judge Stacey leaned over the bench and said in a stern voice, “keep talking counselor and you could lose this motion!”  You have to know when you have won and then shut up, sit down and claim the victory.  It is human nature to keep talking and trying to answer questions, even if not asked.  But, more often than not you just give the other side ammunition not to agree with you.
Controlling the flow of information to VA is equally important.  An example recently occurred with John Q. Veteran.  On May 5th he underwent a complete PTSD review.  Upon our office reading the Disability Benefits Questionnaire (DBQ) form, we found the rating physician wrote “Total occupational and social impairment.”  This was one of those occasions the VA Comp & Pen report says everything you need.
A month later, John Q. Veteran went to his treating physician and received a letter addressed to the Department of Education that stated he is “totally disabled and is unable to work in any capacity.”
The PhD psychologist was specific and detailed in her conclusions.  The treating physician’s statement was general and for some other purpose.  If you sent in the physician’s statement, it may give VA a reason to stop focusing on the controlling DBQ and send out for consideration of the physician’s statement.  It is time to sit down and wait for the win.