April 2012 Archives

U.S. Supreme Court Expands Defendants' Plea Bargain Rights

April 16, 2012, by The McKellar Law Firm, PLLC

Two cases argued before the U.S. Supreme Court have now allowed defendants to get a second chance at accepting a plea offer if their attorney either acts unethically or gives wrong advice to the defendant.


In State v. Frye, the defendant was charged with a felony for driving with a revoked license. While the prosecutor offered to reduce the charge to a misdemeanor if Frye pled guilty and agreed to serve for ninety days, Frye's defense attorney neglected to inform Frye of the offer. Frye was instead sentenced to three years in prison after pleading guilty to the charges.

In the second case, Lafler v. Cooper, the defendant was charged with assault with intent to murder after shooting a female in the thigh and buttocks. The prosecutor offered a plea deal twice to have the defendant serve a recommended prison sentence of four to seven years. But the defendant's attorney told the defendant to not accept the plea due to the attorney's belief that, under Michigan law, a defendant could not be convicted of attempted murder for wounds below the waist. Once the case went to trial, the defendant was sentenced to fifteen to thirty years in prison.

While the state in both cases argued that defendants do not have a constitutional right to a plea bargain-and therefore no constitutional right to assistance of counsel during a plea bargain- the Supreme Court disagreed. Under a 5-4 majority vote, Justice Kennedy opined that the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the "central role plea bargaining plays." Because plea bargaining is used in 95% of cases to determine "who goes to jail and for how long[,] [i]t is not an adjunct to the criminal justice system. It is the criminal justice system." When a defense attorney provides ineffective assistance of counsel during plea negotiations, the Supreme Court held that if a defendant can show that they would have accepted the original plea offer, the prosecutor would not have withdrawn the offer, and that the judge would have approved the offer, the defendant can get a second chance to accept the original plea offer.

Justice Scalia, in his dissenting opinion, believed that the decision did away with the idea that plea bargaining was "a necessary evil" to prevent the system from "grinding to a halt" if a majority of cases went to trial. Justice Scalia went on further by stating that this decision emphasized the idea that plea bargaining was like gambling at a casino. According to him, the decision "embraces the sporting chance theory of criminal law, in which the state functions like a conscientious casino operator, giving each player a fair chance to beat the house─that is to serve less time than the law says he deserves." An article discussing the potential ramifications of the above decision can be found here at npr.org.

Texas Doctor and Staff Charged in Alleged $375 Million Medicare Scheme

April 3, 2012, by The McKellar Law Firm, PLLC

The Federal Government is continuing its crackdown on Medicare fraud. According to a recent article in the Insurance Journal, a physician, his office manager, and five owners of home health agencies were arrested after allegedly committing health care fraud totaling nearly 375 million dollars in Dallas, Texas.


These charges come after investigations conducted by the Medicare Fraud Strike Force, a division of the Health Care Fraud Prevention and Enforcement Action Team (HEAT). According to the investigation, Dr. Jacques Roy owned and operated a practice that certified or directed the certification of more than 11,000 individual patients from more than 500 home health agencies (HHA). During its five-year stint, Dr. Roy's practice certified more Medicare beneficiaries for home health services and had more patients than any other medical practice in the United States. According to the indictment, the fraudulent activity caused more than $350 million dollars to be erroneously billed to Medicare and more than 24 million dollars to be fraudulently billed to Medicaid by Dr. Roy and the HHAs associated with his practice.

Dr. Roy and the HHAs with whom he allegedly conspired with were caught due to suspicious billing spikes tracked by the Health and Human Services (HHS). While a vast majority of physicians who certified patients for home health only signed off on 104 or fewer patients in the year 2010, Dr. Roy certified more than 5,000 patients in that year alone.

The federal government has recently been cracking down health care fraud due to its belief that such fraud not only increases costs for consumers, taxpayers, and health insurance plans; it also victimizes the elderly and disadvantaged. Since 2007, the Medicare Fraud Strike Force has charged more than 1,190 defendants who have collectively charged the Medicare program more than 3.6 billion dollars. So to send a clear message to other potential physicians thinking about committing healthcare fraud, Dr. Roy and his fellow conspirators each face up to ten years in prison and a $250,000 fine for each count of conspiracy as well as a maximum penalty of five years in prison and a $25,000 fine for each false statement charged against them. Seventy-eight additional HHAs associated with Dr. Roy have also been suspended by the Centers for Medicare & Medicaid Services (CMS) based on allegations of fraud against them.