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A Solid Compliance Program Avoids Whistleblowing


Medicare and Medicaid billing fraud scams-upcoding and unbundling schemes, double and triple billing, phantom billing and illegal kickback schemes -cost the United States an estimated $100 billion annually, inflating the size of government, escalating healthcare costs and burdening taxpayers.

To combat the scams, the US government amended the Federal False Claims Act, adding the qui tam provision to encourage more citizens to blow the whistle on Medicare fraud. Originally enacted during the Civil War to deter defense contractors from ripping off the government, the “Lincoln Law” allows whistleblowers who file a suit to not only be free from retaliation, but also entitled to receive a portion of any funds recovered in the case, sometimes up to 30%.

One of the most recent and heinous cases involving whistleblowing is on Farid Fata, MD, a Detroit oncologist sentenced to 45 years in prison on July 10, 2015. Dubbed "Dr. Evil" by the press, Fata not only bilked the government of $91 million, but also administered excessive or unnecessary chemotherapy to hundreds of patients, some of whom died even though they had been cancer-free. Fata’s fate is thanks to a nurse who blew the whistle on him and his appalling “chemo mill.”

Fata’s case of defrauding the government is not an isolated one, although it is particularly egregious. Two whistleblower suits allege that Florida cardiologist Asad Qamar, MD, performed and billed for numerous medically unnecessary procedures on patients. Qamar collected $18 million from Medicare in 2012, second among all physicians nationwide. His case is still under way.

Thanks to whistleblowers, DaVita Healthcare Partners, Inc., one of the largest dialysis firms in the country, just got socked with a $450 million fine over billing for drugs in excess of what the firm had administered.

Whistleblowers come in all shapes and sizes and in all settings—acute care, clinics, home health, hospice, extended care, dental offices, labs, etc. A whistleblower in the Qamar case was a management consultant. Sometimes they are disgruntled current or former employees. The nurse in the Fata case was motivated by concern for patients undergoing excessive or unnecessary treatment. Other times, angry ex-wives of physicians play the qui tam card. Sometimes the whistleblower is a physician himself. An orthopedic surgeon blew the whistle on Tuomey Healthcare System for false claims. The $237 million fine is more than the South Carolina hospital’s annual revenue and could be a death blow for the community hospital. Michael Drakeford, MD, is entitled to receive 15% of the total recovery.

Unusual billing patterns and excessive claims and denials, not to mention patients undergoing unnecessary treatment, raise the red flag for whistleblowers. Ethical practice, accurate billing and a strong compliance program, are the best defense against whistleblowers.

The Affordable Care Act requires healthcare organizations to train employees on the qui tam provisions of the False Claims Act, so it's important to make sure it’s part of your annual staff education. Take complaints seriously and don’t be afraid to rock the boat. Effective leadership and proper compliance require rocking the boat. Listen effectively and with an open, fair mind and work quickly and steadfastly to resolve the problem. Also, be sure to communicate to the whistleblower how you are working to resolve the problelm and what changes you are making to ensure the practice isn’t repeated. Remember, if you don’t do anything about healthcare fraud, you may be found to be complicit in the scam.

The HHS Office of Inspector General publishes recommendations for compliance programs for all kinds of organizations. If you don’t have a compliance program in place or if you have one you think could be improved, visit https://oig.hhs.gov for recommendations on how to create a rock solid program so you don’t hear the piercing phweeeeeep of a whistle blown on you.

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