WERE YOU ABUSED BY A CLERGY MEMBER OF THE ROCKVILLE CENTRE DIOCESE? TIME TO MAKE A CLAIM IS EXTREMELY LIMITED. Local Attorney Provides a Guide to the Newly Announced Diocesan Fund

THE DEADLINE FOR PHASE 1 CLAIMS HAS BEEN EXTENDED!  PLEASE ACT IMMEDIATELY TO PROTECT YOUR ABILITY TO MAKE A CLAIM!


By Mitchell J. Birzon, Esq.

Birzon Strang and Associates

There has been much written recently about the establishment of an Independent Reconciliation and Compensation Program (IRCP) by the Diocese of Rockville Centre created specifically to compensate survivors of sexual abuse by their clergy.  That’s no surprise.  This is a big announcement as it literally gives certain victims what may be their last chance to file a claim.

However, clergy abuse, and the law and emotions that surround it, can be extremely complex and difficult to understand.  With that in mind, what follows are eight simple keys to understanding this IRCP if you, or someone you know, is a victim:

1. Time is of the essence!  The diocese announced the fund’s establishment on October 16^th and is offering a small window for victims to file a claim.  Phase 1 of the program, which began with the announcement, is open to individuals who have previously notified the diocese of abuse perpetrated against them by members of the clergy.  The deadline for those victims to file a claim - originally set at 12/31/17 - was just extended into January of 2018.  Phase II will include any person wishing to file a new claim alleging sexual abuse that was not previously reported.  The second phase will begin in early 2018 and only be open for a few months.

2. Any person – male or female - who, as a minor, was sexually abused by a bishop, priest or deacon in the diocese at any time, may be eligible to participate in the fund.  The law has previously prohibited any claims after the victim has reached the age of 23.  That restriction does NOT apply to the IRCP.  For many victims, there is no certainty that they will ever have another chance to file a claim.

3. It’s important to reject many common fallacies about this type of abuse.  Victims have been led to believe there is no abuse if sexual contact that began when they were a minor continued beyond the age of consent, or if they were “old enough to resist”, or if they otherwise gave an indication they were willing participants.  Others believe they have no claim because their abuser has left the clergy, been transferred, or died.  None of those factors excuse sexual contact of any kind before the age of 18 or disqualify a victim from this program.

4. Victims often think they are alone.  IRCPs created in neighboring dioceses have already paid hundreds of victims and this program is expected to yield similar results.  There are many, many victims.

5. In 2002, the diocese set aside $11 million for victims.  While some payments have likely been made from that fund, the IRCP should be extremely well-funded.  The diocese is undoubtedly prepared to make large payments.

6. Participating in the IRCP is every victim’s right.  However, it’s important to note that it is in no way disloyal or disrespectful to the Catholic church or the priesthood.  Remember the IRCP is a voluntary program created by the church – not by the courts.  The diocese is clear that Bishop John O. Barres is implementing this voluntary program to promote healing and continue its ongoing commitment to protect children. “As your Shepherd, I am asking all of us together to take a new and important step in the Church’s Eucharistic Mission of Mercy,” said Bishop Barres. “With this program we are making a major commitment to the ongoing healing of survivors of acts of child sexual abuse committed by clergy.”

7. Despite the fact the diocese created the program, decisions of eligibility will NOT be made by members of the clergy.  The IRCP will be administered by a group of highly respected independent arbitrators with oversight provided by an esteemed panel of lawyers, judges, and psychologists. 

8. The diocese has created a mechanism to participate through online claims.  While all victims have the right to avail themselves of that service, it is never a good idea to begin an undertaking of this importance without the representation of a lawyer specializing in similar matters.  A good lawyer will protect a victim’s rights, privacy and dignity.

The lifelong impact of clergy abuse on its victims cannot be overstated.  For many victims, the truth is very difficult to admit and confront.  This IRCP is designed to ease that process and the eight tips above will help you understand a few of its intricacies.

If you are a victim, or if you’re unsure, now is the time to contact a reputable attorney to help you through the process.

Smithtown, NY based attorney Mitchell J. Birzon is the founding partner of Birzon Strang and Associates.  A graduate of Georgetown University and the New England School of Law, Mr. Birzon served as an attorney in the U.S. House of Representatives and as senior federal legal counsel to Governor Mario M. Cuomo in Washington D.C.  He returned to his native New York for the purposes of creating a private practice which concentrates on clergy abuse, corporate, commercial, healthcare, and transactional law including mergers and acquisitions and private equity financing opportunities for upstart and existing business enterprised and healthcare practices and facilities.  For further information, contact Gina Pirozzi at gina@gpirozzi.com or Mitchell Birzon and mjbirzon@bsb-lawyers.com or 631-265-6300.

Investigations Regarding Healthcare Fraud and Abuse: A Whistleblower-fueled Uptick in Cases of Upcoding and Unbundling make for Uncertain Times for Healthcare Providers

By Mitchell J. Birzon, Esq., 

Birzon, Strang and Associates           

Not a day goes by when the Office of the Inspector General (OIG) of the US Department of Health and Human Services doesn’t issue a press release announcing their successful prosecutions of fraud and abuse investigations regarding Medicare and Medicaid.  Aside from the more commonplace matters involving medical practitioners having billed for services that were never performed, there are a spate of investigations involving upcoding and billing separately for services that should have been billed as a single service (connotatively known as “unbundling”).  Much of this activity is spurred by the fact that whistleblowers have become increasingly efficient “agents” of the government pursuant to The Federal False Claim Act, 31 USC Sec 3729-3733.

The enactment of The Affordable Care Act (ACA) brought with it additional funding, significant technology and other resources to more aggressively identify and prosecute healthcare fraud; both civilly and criminally. For instance, algorithms can readily identify practitioners that seemingly oversubscribe medication or diagnostic service orders based upon geographical and other statistical databases maintained by the Centers for Medicare and Medicaid Services (CMS). Historically government investigations and prosecutions of healthcare fraud involved only matters where the government was the actual payor for the services at issue.  However, it was anticipated that “test cases” would be commenced by the Department of Justice against beneficiaries of private insurer payments under the argument that coverage provided through the exchanges created pursuant to the ACA included providers subject to the ACA and its enacted rules and regulations.

At the federal level most fraud investigations are led by the OIG, the FBI, the DOJ and state Medicaid Fraud Control Units (of which 29 states, including New York, have created) which often join in the investigatory and prosecutorial process. Not surprisingly, a significant percentage of cases that are successfully prosecuted are borne from complaints filed by whistleblowers.  These insiders often have the most intimate knowledge of the fraud and how it was perpetrated upon the government. The Federal False Claims Act, and most state whistleblower statutes, allow for the whistleblower(s) to receive between 15-25 percent of the government’s recovery. (see 31 USC 3730 (5)d).  As an example, The Health Care Company, HCA paid a total of $151 million to whistleblowers as a result of HCA’s admission that it engaged in extensive physician kickbacks and the submission of fraudulent reports.    

The initiation of an audit or investigation can be brought to a practitioner’s attention in a variety of ways. For example, a notice from CMS or a CMS contractor may inform a practitioner that they are already being investigated and that their claims are being subjected to a review by CMS or a designated contractor before any payments are made. This designation is known as “pre-payment review” and may result in innocent practices having their Medicare payments delayed for 3-6 months.

Very often the small or mid-size healthcare practice that finds itself caught in the ever-expanding web of the regulatory jungle was unaware of the requirement to enact a compliance program.  In reality, that requirement is not new or a recent mandate. The requirement for a comprehensive compliance program transitioned from voluntary to mandatory in the Patient Protection and Affordable Care Act (PPACA) in 2010.  

To be compliant with this requirement, I advise my clients to make certain that their program conforms to the specific recommendations issued by OIG. When a practice takes the time and makes the financial commitment to adopt and fully implement a quality compliance program, it has the effect of identifying or correcting inadvertent fraud and further sends a strong message to the government that the client has made all efforts to "do the right thing”; something that the government may take into account when deciding whether to bring criminal charges in addition to civil claims against the healthcare provider.

Healthcare fraud and abuse is an area of the law which is evolving steadily and it is extremely important that every practice, large or small, is on solid footing regarding compliance.  The best way to ensure compliance is to consult an attorney who concentrates on Healthcare Fraud and Abuse.  There is never a good reason for a medical professional who is the subject of a Medicare, Medicaid, or private payor fraud investigation - no matter how routine it may appear to be - to proceed without counsel.  There is simply far too much at stake, and the extent of the risk is never clear when an investigation first rears its head.

Smithtown, NY based attorney Mitchell J. Birzon is the founding partner of Birzon, Strang and Associates.  A graduate of Georgetown University and the New England School of Law, Mr. Birzon, served as an attorney in the U.S. House of Representatives and a senior federal legal counsel  to New York Governor Mario M. Cuomo in Washington D.C.  He returned to his native New York for the purposes of creating a private practice which concentrates on corporate, commercial, healthcare, and transactional law including mergers and acquisitions and private equity financing opportunities for upstart and existing business enterprises and healthcare practices and facilities.  For further information, contact Gina Pirozzi at gina@gpirozzi.com, or Mitchell Birzon at mjbirzon@bsb-lawyers.com or 631-265-6300