Benjamin J. Fenton

Fenton Law Group LLP

Los Angeles

Litigation

The single greatest change caused by the government's response to the coronavirus pandemic has been its new attitude toward telehealth, said Fenton, a litigation partner at the Fenton Law Group.

"Federal health care programs like Medicare have now issued new orders with much stronger incentives for doctors to conduct a lot of patient interaction using telehealth techniques," said Fenton, the son of firm founder Henry R. Fenton. "Formerly the feds paid much lower rates and the initial meeting couldn't be by telehealth. I think it is fantastic for both providers and patients that they made the reimbursement levels equal.

"With everyone staying home now it will be vital, and when this is over it will be hard to go back."

He added that he's already been asked for guidance by a physician client as concerns arise about security and privacy in remote interactions with patients.

"There's a need for businesses to step up to facilitate the way physicians can pull up labs and medical records beyond Skype," Fenton said.

Fenton and his firm specialize in fraud and abuse cases, medical staff disputes, credentialing, Medicare and Medi-Cal reimbursement, Stark Law and other anti-kickback rules, Drug Enforcement Administration and Food and Drug Administration issues, business disputes, long-term care, behavioral health and alcohol and substance abuse cases.

Privacy issues are another key area of practice. He prevailed for a physician client, Kamyar Cohanshoet, against the Medical Board of California after the board filed a petition for an order to obtain medical records of five of the physician's patients. The move was part of an investigation, based on an anonymous tip, into the physician's prescription of controlled substances to the patients. The Los Angeles County Superior Court granted the order; Fenton successfully took the case to a state appellate panel and, in January 2019, won reversal. Grafilo v. Cohanshohet, B285193 (2d DCA, filed April 11, 2017). The plaintiff, Dean R. Grafilo, is director of the state Department of Consumer Affairs.

In a published opinion, the unanimous panel held that the medical board must demonstrate a compelling state interest before a court will order disclosure of patient records in accordance with an administrative subpoena. The ruling clarified that courts should apply the compelling interest standard instead of a simple balancing test in deciding whether to require disclosure.

"We are not persuaded an anonymous complaint which provides scant detail, particularly about who and when the prescriptions were written, constitutes substantial evidence of good cause," wrote Presiding Justice Tricia A. Bigelow for her colleagues.

"This was major pushback against government overreach in seeking patient records as part of its oversight function," Fenton said. "We affirmed individual privacy rights and stopped the case in its tracks."

-- John Roemer