Hospital Physician Qui Tam Case

Qui tam law was created during the Lincoln administration to protect the government purse from theft by private citizens.   As an incentive, a percent of the money refunded the government is paid to the whistle-blower if they win the case.

Here is a short summary of a 2014 qui tam case in Florida (United States ex rel. Baklid-Kunz v. Halifax Hospital Med. Ctr. et al.) where the government alleged that “prohibited” referrals from oncologists to a hospital resulted in the submission of 74,838 (false) claims.

The government alleged the claims were prohibited because the doctors signed agreements with the hospital to receive incentive payments to deliver oncology services, paid for by Medicare. A share of a bonus pool, drawn from profits received by the hospital, was part of the doctors compensation.

Here, the hospital was accused of violating Stark (commonly known as the “Stark Statute”). Stark prohibits a hospital from submitting Medicare claims for referrals from physicians who have a financial relationship with the hospital. Halifax’s arrangements with medical oncologists and neurosurgeons working at the hospital violated Stark, and Medicare claims submitted by Halifax based upon referrals from these physicians violated the federal False Claims Act.

The hospital’s director of physician services reported this problem to the hospital and when the hospital did not correct the problem (their legal counsel approved the agreements) the director then went to a private attorney, who joined with the government in a qui tam action.

Accused of over-charging Medicare $105,366,000, a Florida hospital settled with the federal government for $84 million.

Important points about this case are:

  • a violation of the Stark Law can lead to False Claims Act liability for claims covered by Medicare and Medicaid
  • damages can be proved through healthcare providers’ own claim forms

Litigation tip:

Planning to file a qui tam claim? Remember to write any legally collected notes as a memorandum to your attorney so that they will be protected by the attorney-client privilege.


Dena Wurman, Attorney at Law

H-1B’s and the prevailing wage

What is a prevailing wage?

Congress has mandated that the Department of Labor (DOL) monitor the H1B program with regard to any adverse impact on wages and working conditions for the U.S. workforce. The employer must file with the DOL an “application” affirming that the employer will pay the required wage rate to H1B workers.

The “prevailing wage” is defined by the DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment. Similarly employed is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment. The employer must determine the prevailing wage rate before filing the labor condition application, in order to affirm that it is paying the higher of the actual wage or prevailing wage rate.

Before 2010 state workforce agencies processed prevailing wage requests for H-1B visa applicants. A relatively simple process, requests were faxed and a response came within a few business days. In 2010 these requests were centralized to an online filing system with the Department of Labor.

Attorney Dena Wurman has successfully litigated cases for clients in ICE custody and has appeared at numerous hearings in Immigration Court. She has experience with consular issues and cross-border travel, particularly through the Canadian border. For a complimentary consultation call (505) 506-9434

Why Your Business Needs a Registered Agent

As a business owner, you want to protect your personal property from lawsuits. Incorporation is a way to limit your personal liability for mistakes your company employees may make or you may make while running your company.

Another way is to have what is called a Registered Agent.  This is a person lawsuits can be sent to.  Having an agent to receive and forward your documents is a smart business move.  A legitimate registered agent can also help protect your personal information from appearing on the internet, like on the Secretary of State database.

In the legal world, “service of process” is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party.  Because you can lose the lawsuit (and perhaps your business) by default if you are unable to be served, a good registered agent is your first line of defense against losing your business.     While most people would try to avoid a lawsuit at all costs, once one is filed, you must respond if only to deny the charges and get out of the lawsuit.

Attorney Dena Wurman helps business clients reduce legal costs.  Her firm is outside counsel to the University of New Mexico for legal matters concerning employment and federal regulations.  For a complimentary consultation over the phone, call (505) 506-9434 or email









Medical Marijuana in New Mexico

Although federal law currently prohibits any use of cannabis, the Lynn and Erin Compassionate Use Act delegated authority to The New Mexico Department of Health, Public Health Division to ensure the safe production, distribution and dispensing of cannabis for the sole purpose of medical use in New Mexico.

It is important to note, the purpose of the Act is solely to alleviate symptoms caused by debilitating medical conditions and their medical treatments.  In order to legally use medical marijuana in New Mexico, physicians wanting to certify use must closely follow the regulations issued by the Department.

Here are a few guidelines on how to certify medical marijuana use in New Mexico.

Certification requires a written statement (in a patient’s medical records or a statement signed by a patient’s practitioner) that, in the practitioner’s professional opinion, the patient has a debilitating medical condition and the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.

A physician (or physician’s assistant’s) written certification is not valid for more than one year from the date of issuance.  Any written certification should include the following:

  • history and complete examination of the patient;
  • development of a treatment plan with objectives;
  • provision of informed consent including discussion of side effects;
  • periodic review of the treatment’s efficacy;
  • consultation as necessary; and
  • proper record keeping that supports the decision to recommend the use of medical cannabis.

A practitioner who wishes to issue a written certification can register with the New Mexico Board of Pharmacy to become a regular participant in the prescription monitoring report issued by the board. The link to the website is here:

Before issuing a written certification, the physician should obtain a patient report for the preceding 12 months.

Dena Wurman is a health law attorney and outside counsel to the University of New Mexico (UNM) for matters related to health law and employment.  Her legal practice focuses primarily on federal law and health law.  For a free phone consultation, call (505) 506-9434 or e-mail

Student who filed fraudulent I-9 form denied green card

There was an interesting case recently, decided in October 2014 by the Federal Board of Immigration Appeals (BIA) that applies generally to all cases in immigration court. (Matter of Ezra Kibichii Bett)

In that case, an immigrant student from Kenya — on an F non-immigrant visa — filed a Form I-9 (Employment Eligibility Verification) with two different employers on October 9, 2009, and October 27, 2009. On each form, a box was checked signifying that the applicant was a United States citizen. He acknowledged that the signature on both forms resembled his own.  Later, when he tried to get a green card by marriage to a US Citizen wife, the court said no, because he falsified the I-9 forms. The court said, any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States, should be denied a green card (permanent residency.)

Just to keep things interesting the government regularly issues new I-9 forms.  There is also a new version in Spanish.

Ms. Wurman represents clients in court and administrative proceedings and helps clients on their legal matters. She has represented non-profit entities, schools, businesses, individuals and international companies.  For a consultation, e-mail or call (505)506-9434.

How to Title New Mexico Property

Title to property is one of the things that controls whether or not a probate is necessary.

There are many ways to title property:

1.  Sole name of a person (only decedent‘s name appears on bank account, house, or other assets).

2.  Tenants in common (each tenant owns his or her own portion as a separate, distinct interest in the property that cannot be transferred or legally destroyed by the other co-tenant(s). One tenant in common passes his/her share to his/her heirs or devisees at death. At decedent‘s death, decedent‘s tenant in common share requires a court probate proceeding. The decedent‘s heirs or devisees will then own the property with the surviving co-tenant(s).

The above two forms of property ownership require a court proceeding to pass ownership to a decedent‘s heirs or devisees. They are considered part of the decedent‘s probate estate. They are also part of the decedent‘s gross estate.

Other ways to title property include:

1.  Joint tenants with right of survivorship (at death of one joint tenant, property passes to surviving joint tenant(s) without a probate or court proceeding). Joint tenancy title may appear as ―joint tenants,‖ ―joint tenants with right of survivorship,‖ or ―jtwros.‖ Any of these is a permissible designation of a joint tenancy for deeds, financial accounts or other documents. In cases involving a joint tenancy deed to real property, the decedent joint tenant‘s death certificate should be recorded in the county clerk‘s office in the county where the property is located.

2.  Payable on death (POD) accounts (name a beneficiary for bank accounts or U.S. savings bonds; beneficiary automatically receives the property after the owner‘s death without a probate, see Sections 45-6-201 through 227).

3.  Other assets with named beneficiaries, such as life insurance, annuities, individual retirement accounts (IRAs) (owner names in writing a beneficiary and at owner’s death, the property passes automatically to the named beneficiary without a probate, unless the beneficiary has predeceased the owner). However, if the owner has named ― my estate as the beneficiary, a probate will probably be necessary,

4.  Transfer on death (TOD) accounts (name a beneficiary to receive stocks, bonds, and other investment securities; beneficiary automatically receives the property after the owner‘s death without a probate, see Sections 45-6-301 through 311).

5.  Transfer on death deeds (TODD) for real property (must be prepared and recorded properly before the owner‘s death to pass title to the real property automatically to the TODD beneficiaries after the owner‘s death without a probate, see Section 45-6-401).

6.  Trusts (trustor can create a written trust during his/her lifetime, transfer all property into the name of the trustee of the trust, and the trust property passes automatically to named trust beneficiaries upon trustor‘s death without a probate).

7.  Life estates (a person retains an ownership interest during his/her lifetime, then upon his/her death, the property passes automatically to designated remainder beneficiaries without a probate; life estates usually occur with real property and require a special deed to create this interest).

The above seven forms of property ownership usually do not require a court probate proceeding to pass ownership to a decedent’s heirs or devisees. Therefore, they are not considered part of the decedent’s probate estate, but are part of decedent’s gross estate.

Source:  New Mexico Probate Judges Manual (2013)

Ms. Wurman represents clients in court and administrative proceedings and helps clients with their legal matters. She has represented non-profit entities, schools, businesses, individuals and international companies.  For a consultation, e-mail or call (505)506-9434.

Changing Fees for Visa and Citizenship Services

Effective September 6, 2014, the Department of State is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.  Included are two categories of petition-based nonimmigrant visas and the tiered application processing fees for immigrant visas.  The interim final rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services.  Lastly, the rule raises the application processing fee for renunciation of U.S. citizenship and lowers the hourly consular officer time charge.  The Department of State said it is adjusting the fees in light of the findings of a recent Cost of Service study to ensure that the fees for consular services better align with the costs of providing those services.

Some of the changes include:

The processing fee for E treaty trader and treaty investor visa applications will decrease from $270 to $205.

The processing fee for an employment-based visa application (based on an approved I-140 alien worker or I-526 alien entrepreneur petition) will decrease from $405 to $345.

Other immigrant visa application fees (including for I-360 self-petitioners, special immigrant visa applicants, and all others) will decrease from $220 to $205.

Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying any visa-related fees.

The Immigrant Visa Security Surcharge, paid by all applicants except those who are statutorily exempted from paying fees, will increase from $75 to $100.

The fee for processing an application for waiver of the two-year residence requirement for J-1 exchange visitors will decrease from $215 to $120.

The affidavit of support fee will increase from $88 to $120.

The fee for processing renunciation of U.S. citizenship requests will increase from $450 to $2,350.

Comments on the interim final rule, which was published in the Federal Register on August 28, 2014, are due by October 21, 2014.


New Mexico Rules for Medical Records

New Mexico’s rules for medical records are detailed in N.M. Reg.

Confidentiality and Data Privacy

All mental health counselors, therapists, and alcohol and drug counselors may not disclose confidential information pertaining to a client. A licensee must inform the client of limitations on confidentiality. The licensee should continue to treat information as confidential even after the relationship with the client has ended.

Disclosure With Consent

A client may give informed written consent to disclosure of their treatment information. A parent or guardian must consent to disclosure of information on behalf of a client who is under the age of consent.

Disclosure Without Consent

Substance abuse treatment information may be disclosed if “necessary to protect against a clear and substantial risk of imminent serious harm being inflicted by the client on the client or another person(s).” If the counselor is a defendant in a civil, criminal, or disciplinary action arising from the treatment, confidential information from the client may be disclosed in that action. Confidential information may be disclosed for purpose of reporting the abuse of children and vulnerable adults. Information may be disclosed for purposes of supervision, teaching, research or other published reports, provided that patient identifying information is disguised.

The regulation does not address disclosure pursuant to a court order.

N.M. Code R. §

Release of medical records

A patient or the patient’s legally designated representative may request a complete copy of the patient’s medical records. Physicians must provide copies to a patient or to another physician as requested in a timely manner, except that psychotherapy notes, which must be maintained separately from the rest of the patient’s medical record, may be withheld from the patient. Psychotherapy notes may be released to other health care providers upon the express authorization from the patient. If the medical records are the property of a separate and independent organization, the physician should act as the patient’s advocate and work to facilitate the patient’s request for records.

A physician may charge a reasonable cost-based copying fee of up to $30 for the first 15 pages, and $0.25 per page thereafter, and the actual cost of reproducing electronic records and record formats other than paper, such as x-rays.  A physician may also charge a reasonable, cost-based fee for mailing the records, as applicable.

A physician may not withhold medical records because an account is overdue or a bill for treatment, medical records, or other services is owed.

N.M. Code R. §


These requirements apply to all licensed public and private hospital facilities in New Mexico.

Every hospital must have written policies on patient rights and responsibilities that must provide the following:

  • Patients may not be denied appropriate hospital care because of the patient’s race creed, color, national origin, religion, sex, sexual orientation, marital status, age, disability or source of payment;
  • Patients must be treated with consideration, respect, and recognition of their individuality, including the need for privacy in treatment;
  • The individual patient’s medical records, including all computerized medical information, must be kept confidential in accordance with applicable federal, state and local laws;
  • The patient or any authorized person must have access to the patient’s medical record, except that access to psychiatric records may be limited by treating professionals when hospital policies specify requirements for limiting access;
  • Every patient shall be entitled to know who has overall responsibility for the patient’s care;
  • Every patient or any authorized person must receive information about the patient’s illness, course of treatment and prognosis for recovery in terms the patient can understand from the appropriate person within the facility;
  • Every patient, or his designated representative where appropriate, must have the opportunity to participate to the fullest extent possible in planning for the patient’s care and treatment;
  • Every patient, or his designated representative, must be given a copy of the patient’s rights and responsibilities at the time of admission;
  • Except in emergencies, the consent of the patient, or his or her authorized representative, must be obtained before treatment is administered;
  • Any patient may refuse treatment to the extent permitted by law and must be informed of the medical consequences of the refusal;
  • The patient, his or her authorized representative, or other person granted the power to authorize medical treatment, must be fully informed and give consent for the patient’s participation in any form of research or experimentation;
  • Except in emergencies, the patient may be transferred to another facility only with a full explanation of the reason for the transfer, provision for continuing care; and acceptance by the receiving institution;
  • Every patient must be informed in writing about the hospital’s policies and procedures for initiation, review and resolution of patient complaints, including the address where complaints may be filed with the department; and
  • Every patient must have freedom from physical or verbal abuse, harassment and inappropriate physical and chemical restraints.

Every hospital must report to the tumor registry all malignant neoplasms that are diagnosed by the hospital and all malignant neoplasm’s diagnosed elsewhere if the individual is subsequently admitted to the hospital. The report must be submitted to the University of New Mexico tumor registry within six months after the diagnosis is made or within six months after the individual’s first admission to the hospital if the neoplasm is diagnosed elsewhere, as appropriate.

A policy for compliance with all applicable state and federal reporting requirements must be adopted and updated as necessary; such federal requirements include but are not limited to the New Mexico health policy commission, the national practitioner data bank and the healthcare integrity and protection data bank.

N.M. Stat. § 14-6-3

Access to medical records by applicants for disability benefits; violations

These requirements apply to any person who is licensed, certified or otherwise authorized by law to provide or render health care, as well as to any facility that employs or contracts with such person.

A patient or former patient who is applying for benefits based on social security disability or appealing a denial of such benefits, or an authorized representative of such patient, may request a copy of the patient’s medical records. Within thirty days of receiving such request, the health care provider must provide the copy, and may charge the requestor for copying and/or obtaining the record.

The request submitted to the provider must include a statement or document from the agency that administers the benefits confirming the application or appeal.

Call for a free 15-minute consultation (505) 506-9434.

Requirements for the E Investment Visa

Here are the requirements for the E-2 Investor Visa:

  • The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
  • If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
  • The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
  • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
  • You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.

Documentation must be organized in such a way that the consular officer can locate all of the relevant facts to make adjudication within 5-10 minutes. Applicants who fail to submit the necessary information will face delays in the processing and adjudication of their cases.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a consultation, e-mail

New Work Rule for H-1B Spouses

The lack of employment authorization for family members of H-1B workers often gives rise to personal and economic hardship the longer they remain in the United States. The time frame required to obtain permanent residency may be many years. As a result, retention of these highly-skilled workers in the U.S. can be a problem for an employer.

The contributions of highly skilled employees, to the U.S. economy, are important. Advances in entrepreneurial research and development correlate highly with economic growth and job creation. With this idea in mind, the government is now proposing that family members (of H-1B workers who are applying for permanent residency) be allowed to work too. The proposed rule would benefit U.S. employers who suffer when an H-1B employee abandons their efforts to become permanent residents.

Currently, when the spouse of an H1-B employee wants to obtain work authorization – they are eligible as derivative beneficiaries – they must wait until their husband or wife submits forms to get their green card. An alien is prohibited from submitting these forms until a visa number is available. Visa numbers are limited each year and waiting can take several years until a husband or wife can work.

The new proposed rule will not extend to children.  If finalized, it would impact approximately 100,000 H-4 spouses and drop to a projected 35,900 spouses in subsequent years.  Benchmarking against other immigrant receiving countries that allow more favorable work authorization, the U.S. currently has less favorable rules for immigrant spouses.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a complimentary consultation, e-mail