Author: JGL Law

This week, Joseph Greenwald & Laake would like to recognize attorney Joe Creed for his selection as a 2017 Super Lawyer by Super Lawyers Magazine. Super Lawyers Magazine only selects 5% of attorneys for this honor per year.  He is the author of “Employment Rights of Federal Employees,” a chapter in the Maryland Employment Law Deskbook. He is currently the employee co-chair of the ABA Federal Sector Labor & Employment Law Committee. Click below for more on Joe. 

Brian Markovitz and Brenda Adimora wrote an article in Law360 titled “What United and Fox Can Teach Companies About Victim Blaming.” Click the image below for the full story. 

      Did you know that sometimes civil health care fraud can result in criminal convictions? It’s rare. But when it happens, it ruins lives, careers and risks serious patient harm. What might start small, can quickly snowball when greed eclipses medical judgment. When supervision and peer review get overshadowed by revenue, civil fraud can be a crime.

            Civil fraud turned criminal charges

Just some of the media headlines discussing civil-fraud-turned-criminal have included:

• Dr. Aria Sabit — 235-month prison sentence for health care fraud connected to performing medically unnecessary, invasive spinal surgeries, implanting unnecessary medical devices and kickbacks to his Physician Owned Distributorship (POD).[i] His license was also stripped for gross negligence and “dishonest and corrupt acts.”[ii] 
• Dr. Cully White — 6-month prison sentence, 6-month house arrest after pleading guilty to health care fraud stemming from paying another physician to dictate fabricated surgical reports for services that were not rendered. An unrelated Medical Board investigation into substandard spinal surgeries resulted in the surrender of his license.
• Dr. Abubakar Atiq Durrani — pled not guilty to health care fraud and fled the country following a 10-count indictment charging that he convinced patients to undergo medically unnecessary spinal surgeries. The State of Ohio also permanently revoked his license.
• The president of a hospital and eight co-conspirators were convicted of a massive Medicare fraud scheme to bill for more than $158 million worth of psychiatric services that were not rendered and the payment of kickbacks to recruiters to deliver Medicare ineligible patients. The hospital president was sentenced to 45 years, his son to 20 and a co-conspirator to 12 years in prison.

 

           How do these cases come about? How do they get reported? What could be done to stop them earlier or prevent them all together?

Patients can be whistleblowers; so can your fellow health care providers

On the whole, health care fraud has infinite variations, but in the end, the majority of cases involve:

(1) Medically unnecessary procedures or services not actually rendered;

(2) Kickbacks;  

(3) Fabricated records or bills; or

(4) Upcoding.

Millions of employees, patients and competitors see examples like these or other health care fraud every day, but very few feel compelled to report. For those who do, the terrain can be treacherous and filled with land mines. But, reporting can result in putting an end to egregious fraud and barring providers from having the chance to endanger patients ever again.

In the Dr. Sabit case, the cover was blown when 30 patients spoke up, suing for medical malpractice in less than 18 months. The Medical Board later investigated, stripping him of his license. Two False Claims Act suits were also filed, one by his physician colleagues who felt compelled to report to the Government after internal reporting proved futile. That suit alleges that the hospital’s peer review committee had found the doctor responsible for 71% of unplanned returns to surgery and that his infection rate was two times the national average. His fraud was lucrative. It produced an alleged $8.4 million in Medicare revenue to the hospital and $1.4 million to the doctor for the instruments he used in surgery. The whistleblower suit alleges that the hospital turned a deaf ear to complaints about his recklessly performed surgeries and it failed to properly supervise him due to the high revenues.[iii]

With Dr. Durrani, the unraveling seems to have begun with medical malpractice lawsuits claiming that more than 500 spinal surgeries were botched. The federal authorities investigated when some of his former patients filed suit under the False Claims Act alleging health care fraud stemming from unnecessary spine procedures. UC Health and West Chester Hospital paid $4.1 million in a civil fraud settlement related to the unnecessary surgeries. In all False Claims Act cases, the Government does an initial parallel criminal review. In a case like Durrani, that criminal review resulted in arrest.

The Government is watching and waiting for tips

The Government has task forces set up to investigate all sorts of health care fraud, but they usually have to be tipped off first. In all of the above examples, the fraud began to be uncovered when either the patients sued for malpractice or patients or physicians blew the whistle in sealed filings under the False Claims Act,[iv] which immediately get investigated by the Government. In the above cases, after the initial disclosure, other investigations followed, resulting in licensing and disciplinary proceedings, civil fines and even jail time.

According to a speech given by Assistant Attorney General Leslie R. Caldwell to the Health Care Compliance Association last April, the Government is looking at health care fraud through a criminal lens, and is getting results. “In the last fiscal year alone, the [Medicare fraud] strike force charged 391 defendants who had collectively billed the Medicare program approximately $1.4 billion. During the last fiscal year, the strike force had a conviction rate of 92 percent – a spectacular rate of success considering the volume and the complexity of the prosecutions – and secured prison sentences averaging 56 months.”[v]

While these examples are rare and extreme, all practices are wise to review and strengthen supervision, quality assurance reviews and compliance. There must be a robust and truly independent peer review process to root out fraud. When these processes and protocols are in place, fraud is stopped before it starts and it cannot spiral out of control.

Veronica Nannis is a principal at Joseph, Greenwald & Laake P.A. in Greenbelt specializing in complex civil litigation, especially in health care. She can be reached at vnannis@jgllaw.com. Sarah Chu, a law clerk at the firm, contributed to this article. She can be reached at schu@jgllaw.com.

 

Jerry Miller, a principal in Joseph Greenwald & Laake’s Business Services Group, attended the Prince George’s County 2017 State of the Economy Breakfast May 3 at the Colony South Hotel & Conference Center in Clinton, Maryland.

The Honorable Rushern L. Baker, III, Prince George’s County Executive, delivered the State of the Economy Address. The program, sponsored in part by JGL, also featured networking opportunities and presentations from the Prince George’s County Council and the Greater Prince George’s Business Roundtable.

Jerry has assisted a wide variety of clients with legal challenges associated with business ownership and operation in Prince George’s County for almost 30 years. He also has a wide range of experience in areas such as corporate tax, employment contracts and commercial real estate matters. 

With help and sponsorship from JGL attorneys Jay Holland and Timothy Maloney, the Quantum Companies/Beltway Plaza Shopping Center raised a total of $8,000 over the course of the weekend of April 28 for the science student exchange program at Eleanor Roosevelt High School in Greenbelt.

Gus’s World Famous Fried Chicken Restaurant at the Beltway Plaza Shopping Center sponsored the fundraiser as well. Quantum Companies’ Bionic Man Champion presented the check to the students and the Assistant to the Principal.

Please join us in congratulating the students of Eleanor Roosevelt High School on their achievement, and wish them luck as they travel to Japan to study STEM with their high school colleagues. 

 

Joseph M. Creed, a partner at Joseph, Greenwald & Laake, spoke at the Introduction to Federal Practice and Admissions Ceremony on April 21 at the United States District Court in Baltimore. The program was sponsored by the Maryland Chapter of the Federal Bar Association.

The program was aimed at both practitioners in Maryland’s Federal District Court and attorneys who would like to be admitted to the Court. It covered topics such as jurisdiction, venue and removal; evidence; discovery; mediation; and summary judgement and oral advocacy.

It also featured judges from the federal bench, and attorneys who regularly practice in the U.S. District Court. In addition, the program featured remarks from the Clerk’s Office of the United States District Court for the District of Maryland.

Joe is an attorney in JGL’s Civil Litigation and Labor & Employment Groups. Some of his practice areas include employment personnel matters, whistleblower protection and EEO matters. This year, Joe was selected by Thomson Reuters’ Super Lawyers.

Please join JGL in recognizing Joe for his accomplishment. 

The Department of Justice is claiming the healthcare giant filed false medicare claims in California. Click below for the full article.  

The university has yet another lawsuit on its hands. Former student athletes are claiming their coaches pushed them into phony classes. Click below for the full article. 

When a patient is injured or dies as a result of inappropriate medical treatment, it is known as medical negligence. In medical negligence cases, it’s important to provide your attorney with a list of specific items to better help them investigate the claim. 

The first set of items your attorney will need is any background information related to your case. Your attorney will need a chronological list of key events that led to your injury, as well as a list of any people who were there at the time. It’s also important to include a list of any people who spoke to the health care provider. 

You should also include a statement that will inform your attorney about how and when you first knew that you may have received inappropriate medical treatment. 

Next, you will need to provide information about the healthcare provider itself. Make sure you include the names of all doctors and hospitals involved in your care, on top of the name of the doctor or doctors’ professional practice(s). 

After you provide all of the background information and information about the healthcare provider, it’s time to give your attorney some information about yourself. 

The most important set of items to provide is your medical history. It doesn’t have to be too extensive, but make sure you briefly describe it. Include a list of any medications you take, along with a statement of what you were told by the doctor or hospital about your treatment at the time of the injury. 

It’s important to include a copy of all medical records, both from the treating doctor and from the hospital. These records should include the entire medical chart, and not just the summary. 

There are two special cases that would require more records: birth injury and death. 

In a birth injury case, it’s important to provide both your prenatal records and any records from other pregnancies and deliveries. Include your labor and delivery records, the fetal monitor strip, the baby’s newborn records and the pediatrician’s records. It’s also important to provide any reports of radiology studies, such as MRI or CAT scans, as well as any records relating to any testing done on the child. 

In a death case, it is important to include a copy of the autopsy report. 

It’s a lot of information to include, but all of it will help your attorney investigate the case. However, if you cannot obtain any of the records, your attorney can do that for you. 

 

Senior Counsel Eleanor Hunt attended the J. Franklyn Bourne Bar Association Inc. Women’s Committee Scholarship Tea on April 23.

The tea honored the new women judges of color in both Prince George’s County and Montgomery County. All proceeds from ticket sales went toward book scholarship for law students in the Washington DC metropolitan area who are also women of color.

 

 

Some basic considerations when thinking of reporting health care fraud

Most employees never imagine reporting their employers. No one takes a job with their sights set on clandestinely gathering evidence for a government health care fraud investigation. But, anyone working in the health care field long enough knows that fraud is still rampant and it sometimes causes real patient harm. So, how does a loyal employee turn whistleblower, and what should you do if you find yourself in this position?

What is the False Claims Act and what does a whistleblower do?  The Federal False Claims Act dates back to the Civil War and is also referred to as “Lincoln’s Law” as it was signed by President Lincoln. While it lay dormant for decades, it was strengthened by both Presidents Reagan and Obama. The current law provides for civil liability to anyone who knowingly presents or causes to be presented a false claim, uses a false record, conspires to commit these acts, or conceals or avoids an obligation to pay the Government. 31 U.S.C. § 3729. The Act carries significant penalties of between $5,000 and $10,000 per claim plus three times the amount of the damages sustained by the Government. 

The False Claims Act is one of the only vehicles that allows a private person to bring a claim on behalf of the Government – to do some of the Government’s work for it. Though this is not the whistleblower’s claim, if a case is successful, a whistleblower is entitled to receive between 15%-25% of the proceeds of a settlement. While this has been described as a “bounty” by some, it is much more. For, the successful whistleblower has intimate knowledge of the fraud, the scheme and the ways in which the defendant attempts to cover it up. The whistleblower has gathered evidence and taken personal risk to bring the fraud to light. He or she works closely with the Government to investigate, map out the fraud, and drive the defendant to the negotiation table or to trial. For his or her efforts, the Government will then pay the successful whistleblower between 15% – 25% of the total recovery. If a case goes forward without the Government’s participation (“non-intervention”), the percentage increases to between 25% – 30% of the ultimate recovery. 31 U.S.C. § 3730(d). 

What Does Health Care Fraud Look Like? If you have witnessed or have been asked to participate in fraud, you might want to, or feel compelled to, report it. Fraud can take just about any form. Fraudsters can be creative. There are lots of examples of fraud. But, here is a list of some of the most common fraud in the health care space:

• False and off-label marketing and promotion;
• Kickbacks or quid pro quo arrangements (e.g., speaker or writer fees, sham consultant agreements, paid dinners, outings or vacations, paid advertising);
• Upcoding CPT codes, DRGs, RUG rates or HHRG scores to increase reimbursement;
• The fabrication of records or bills;
• Billing for services not provided at all or not provided as billed;
• Billing for services or patients that are ineligible for government reimbursement; and
• Providing unreasonable and unnecessary medical services

Some fraud is blatant, rampant and out in the open. Most fraud, however, is more subtle and takes an insider to detect and uncover it. Basically, any time an employer is directing you to skirt the rules, or when you discover that decisions are being made for monetary reasons instead of in compliance with governing rules and regulations, you might rightfully suspect fraud.

Act Fast. If you are considering reporting fraud and filing under the False Claims Act, you must act fast. This cannot be overstated. The Act has a harsh “first-to-file” rule. Even if your allegations are more detailed and you have more evidence than the person who is first to file, if you are not first, you are entitled to nothing under the Act. 

Maintain All Records. As with any potential litigation, if you are even considering filing a whistleblower lawsuit, you should maintain, and do not purge, your files. If you do end up retaining an attorney to file under the False Claims Act, you will need to turn over all of your evidence to your attorney, who will then turn it over to the Government as required in a detailed Disclosure Statement. However, never try to get documents that you do not normally have access to or to which you are not privy. You can blow a case before it has a chance if you unlawfully obtain documents.

Keep Quiet!  False Claim Act cases, unlike other types of litigation, are filed under seal and are not served on the defendant at first. This means that during the Government’s investigation, the defendant target is unaware that you have filed a case and is unaware that the Government is pursuing a False Claims Act case against it. As soon as you file suit, the Court will issue sealing order, with which you and the Government must abide until it gets lifted, which could take years. This sealing provision is a critical part of the Act that allows the Government to conduct is investigation thoroughly, without detection and without fear that the defendant might destroy or compromise sensitive evidence. Any good whistleblower attorney will tell you to assume the seal is in place even before you file, while you are still putting together your Complaint. This means that you need to keep strict confidentiality about what you are doing and the evidence you are gathering from your friends, family and even from your spouse.

Get Trusted Legal Advice. If you have witnessed activities you think may violate Medicare, Medicaid, or other health care laws or regulations (including private insurance regulations in certain states), you should consult with an experienced whistleblower attorney immediately. These consultations are confidential and are protected from disclosure. Always call or email an attorney from a personal phone or personal email address and never from a work-sponsored computer or hand-held device tied to a company server to ensure the communication remains protected.

An experienced whistleblower attorney will walk through your various options, which may include: (1) filing a case under the False Claims Act or state false claims act equivalents; (2) bringing a retaliation claim under the False Claims Act and/or state laws; (3) negotiating a settlement and severance with the employer; and (4) other options depending on your unique situation.

Trust your gut! Trust your instincts, your training and your experience. If an employer is asking you to perform tasks that you know or feel are outside or contrary to Medicare’s or Medicaid’s rules and regulations, then you are right to question and pushback on these requests. If you are complicit in fraud, then there is a likelihood that someone will report it, whether it is a co-worker, a patient or a competitor. You will then be on the wrong side of the inevitable investigation. Licenses and livelihoods are then on the line. In the most egregious cases, criminal charges can result. It is best to consult with an attorney to know your rights and map out a strategy that works for you. 

The article explains implied certification under the False Claims act. A Supreme Court ruling last summer made some changes all government contractors should know. Click below for the full article