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Whistleblower Lawyer Blawg

heart-on-fence.jpgOnly a paranoid person would think that his doctor is picking his medicine, or recommending a hospital or nursing home, because the doctor is being paid under the table, right? Your doctor really thinks you NEED this medicine, right? And that the rehab hospital actually can help you recover from your stroke?

What if you found out that your doctor stuck you in the hospital and performed surgery on your heart because it was profitable to him – even though you didn’t need the heart procedure at all?

Sound like something from a dystopian movie? Unfortunately, this past year a Kentucky hospital paid more than $40 million to the Government to resolve allegations that it violated the Anti-Kickback Statute (AKS) by paying cardiologists to perform heart procedures – that were medically unnecessary.
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Lab tests.jpgU.S. taxpayers are doling out mega-dollars for lab tests. The Office of Inspector General estimated that Medicare spent $8.2 billion on lab tests in just the year 2010, which amounted to a whopping 3% of everything Medicare spent that year. As if those numbers were not bad enough, Medicare says that some labs are paying doctors kickbacks to funnel lab tests to them – which obviously raises the specter of doctors being biased toward ordering more lab tests than they otherwise might.

Kickbacks in the Healthcare Field Dominated FCA Settlements Last Year

Back in 2000, an OIG report out of the Department of Health and Human Services discussed several cases where healthcare providers were nabbed for kickback fraud. Unfortunately, kickbacks continue to be a problem in the healthcare field. In fiscal year 2014, the Government settled 136 False Claims Act cases. A whopping two-thirds of those related to fraud in the healthcare industry. The single biggest category of FCA medical fraud cases came under the Anti-Kickback Statute (AKS) violations.
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Candy.jpgLetting a home health agency decide whether patients need home health care is like asking your kid, “Do you think you need some candy?” You can pretty much tell what the answer is going to be before you get the question out of your mouth.

Fraud in the home health arena has been plagued by exactly that sort of conflict of interest. Home health agencies make money from their patients, so it’s just not a good idea to let them decide whether or not the potential patient needs home health care. Someone who knows the patient and his or her medical needs — and who has no financial stake in whether they get home health care — should make that decision.

To try to cut down on fraud in the home health industry, Medicare made a common-sense rule: a patient cannot start receiving home health care until a doctor certifies that the patient actually needs it. But the Department of Health and Human Services (DHS) says that not every home health agency (HHA) is complying.
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Shells.jpgAn Indiana hospital played tried to play “hide the surgery” from the Government, but the Government won. According to a DOJ press release, Community Health Network (ACHN) of Indiana claimed that surgeries were being performed at the hospital, when actually they were being performed in free-standing ambulatory surgery centers.

Why does that matter? Under Medicare and Medicaid rules, when a surgery is performed at an ambulatory surgery center, or “ASC,” Medicare and Medicaid pay a certain rate per surgery. If the same surgery is performed onsite at a hospital, however, Medicare and Medicaid pay a higher reimbursement rate for the surgery. So by claiming that all of the surgeries were performed at the hospital, ACHN got paid more for each surgery.

Pretty sneaky. But not sneaky enough, apparently. Community Health Network, a non-profit health system, wound up paying the Government $20,324,902.22 to resolve allegations of upcoding medical services – or at least wrongly coding them – under the False Claims Act.
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Empty_plate_orange.jpgIn my last whistleblower lawyer blog post, I talked about a man who stood up to food service giant Chartwells, ultimately forcing it to repay $19.4 million to kids in the District of Columbia school system.

Turns out that fraud by school lunch providers is more widespread than you might think.
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Rotten_apples.jpgThe only thing worse than getting a school lunch is not getting a school lunch. Or being handed a plate of spoiled food.

This month D.C. schoolchildren tasted sweet revenge when the contractor providing their school lunches agreed to settle a False Claims Act suit brought by Jeffrey Mills, the former head of food services for the D.C. School District. Food services contractor Chartwells agreed to pay D.C. $19.4 million to end the suit, and whistleblower Mills will get up to 30% of that amount.
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ClownCreepy.jpgPatient: Are you sure this is the right drug for me?
Doctor: Why, yes, Ms. Smith, I have no doubt this is the absolute best drug I could prescribe.
Patient: How do you know that, doctor?
Doctor: Well, the company that makes this drug pays me a lot more than the other drug companies do!

Sound like the punchline to a joke? But what if it isn’t? When we go to a doctor, we assume he is recommending treatment in order to make us as healthy as possible. But what if your physician is really deciding what to recommend based on how much money he personally is going to get in a kickback?
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Injectionshotsyringe.jpgWhen I read an article about a Marietta, Georgia, lab owner who faked allergy tests, the healthcare fraud hit home for me on a personal level.

From the time she was little, my daughter was terrified of shots. She needed allergy shots, but it took me six years to get her calm enough to even consider doing what her doctor and I knew she needed to do. She finally had had enough of Atlanta’s double-barreled spring and fall allergy seasons. She was old enough to see that if the shots worked, the benefit would be worth the injections.
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MoneyStatue.jpgThe Anti-Kickback Statute made it illegal for hospitals to pay doctors to send them patients. Instead of following the law, some hospitals have worked out elaborate schemes to try to disguise the kickbacks they seem hell-bent on handing out to physicians.

Thanks to whistleblowers, Government enforcement efforts, and occasionally the hospitals themselves, the Government is trying to root out the practice of kickbacks that is tainting the medical industry. In fiscal year 2014, the Government collected close to $200 million from healthcare organizations accused of violating the AKS.
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