The realities of the opioid crisis call out to us, again and again. A sea of devastation drowns individual addicts, families, and communities. In response to lawsuits, government investigations and scathing press reports, the typical response from drug manufacturers and their defenders on social media argues: “The drug companies didn’t do anything wrong, they didn’t write the prescriptions, why are you saying this is their fault?” Here’s a short video laying out some (not all) of the key federal laws that some drug manufacturers may have violated in their drive to sell more and more opioids – and thus reasons why some of them could be legally liable for the devastation that overuse and misuse of their products has wrought. Full transcript below:
Congratulations to whistleblower James Glenn (my former client) who helped expose a serious security flaw with Cisco’s video surveillance and management software. Kudos to my old colleagues at Constantine Cannon, Phillips & Cohen and Personius Melber as well. James blows the whistle James is a brilliant, modest, honest and thoughtful guy who discovered the problem with Cisco’s software, reported it to the company, tried to get them to (and help them to) take action and wound up fired (total coincidence, I’m sure…). He was not deterred, though. He reported the problem to the FBI, and then to the Department of Justice using the False Claims Act (see the complaint he filed here).
I recently made a video, see this blog post, describing the problem of kickbacks in the healthcare industry here in the United States. The short version: a kickback is a bribe, paid to someone who is supposed to advise you on what products or services to buy. If that advisor, or “agent,” steers you to buy something not because it is the best, but instead because they get a financial benefit from the seller, this is a kickback. These things happen all the time in business and politics, which is troubling enough, but is also, unfortunately, all too common among medical practitioners. And it is particularly troubling because of how much trust we place in our physicians. If a doctor is a paid speaker for a drug company, that can be a kickback. If a doctor consults for a medical equipment company and then uses or recommends their products, that too can be a kickback. And it’s not just doctors who get kickbacks. Hospitals, nursing homes, pharmacies – all of these entities must face the morally ambiguous transactional nature of the business at some point. There are myriad opportunities for medical practitioners to take advantage of the system and use their expertise to gain financially from a mutually beneficial relationship that puts the consumer at risk. Remember, it is illegal to give anything of value that may influence the provider’s treatment plan. Do you think that as a patient you have been inadvertently involved in one of these bribery schemes?… Read more »
The Office of Inspector General for the United States Department of Health and Human Services has issued a fraud alert about genetic testing scams, in which companies send patients a free genetic testing kit as a way of stealing their identity information, which is then used to bill fraudulent services. This is a new twist on two tried-and-true scams. The first scam involves fraudulent claims for durable medical equipment, such as wheelchairs and expensive braces. You may have been getting calls from fraudulent telemarketers telling you that your insurance company has approved you for an expensive brace for your back or you knee. Often, such calls were a way for the fraudsters to steal your medical information and use it to bill for fraudulent services. The Department of Justice recently cracked down on that scam, filing criminal charges against 24 individuals who allegedly stole more than $1.2 billion. Next, some clinical laboratories have been fraudulently billing for expensive genetic tests that were not related to a patient’s actual diagnoses, were not proven to be effective in helping treat a patient’s diagnosis, or repeatedly performing a genetic test for no good reason. The new fraud alert warns about a fraud scheme that combines the two – using stolen patient information to order expensive genetic tests, and even to submit claims to Medicare and other insurers for services that were never actually performed. Reportedly, scammers offer Medicare beneficiaries cheek swabs, ostensibly to provide a battery of genetic testing, turn around and sell… Read more »
The Office of Inspector General of the Department of Health and Human Services recently released a report that showed that diagnosis upcoding continues to be a problem in the Medicare Advantage risk adjustment program. According to their findings, Essence Healthcare received at least $158,904 of overpayments from the Centers for Medicare & Medicaid Services (CMS) program. Unfortunately, Essence Health is not the only guilty party in healthcare who has received such overpayments. A report published by the New York Times in 2017 showed that UnitedHealth allegedly used diagnosis upcoding to over-bill Medicare by billions of dollars. Understanding Diagnosis Upcoding at a Glance Diagnosis upcoding is a phrase used to describe what happens when a medical provider or insurance company reports or documents that a patient was treated for a disease or condition that the patient either does not have or was not treated for. Because insurers and some providers in the Medicare Managed Care program get paid more from the Government for certain types of conditions, there is a higher risk of diagnosis upcoding to try to get more funding. Unfortunately, the way the system is set up it almost encourages healthcare providers to upcode, which is proving to be problematic in causing a seemingly ongoing issue. Why Whistleblowers Should Help Combat Problems with Diagnosis Upcoding Diagnosis upcoding hurts everyone, right down to the patients who are receiving care. For one, upcoding diagnoses leads to what looks to be an appearance of higher rates of certain illnesses and conditions among the general… Read more »
For many years, the Department of Justice (DOJ) has worked hard to encourage companies to cooperate during an investigation after a False Claims Act case has been filed. While some companies have taken initiatives to make whistleblowers more comfortable about stepping forward, many still choose the path of obstruction and retaliation instead. The DOJ recently released new guidelines to encourage further cooperation from defendants. Cooperation Defined According to the DOJ DOJ’s policy provides incentives for the following types of cooperation: Voluntary disclosure about a potential False Claims Act violation Sharing information learned during an investigation into the claim on an internal level Implementing new compliance programs within the company to handle reports Offering insight beyond what the DOJ is already investigating Taking remedial measures as soon as the investigation is opened Disclosing misconduct that the DOJ suspects or is outside of what is already suspected Notably, an informed whistleblower can often help a company with each of these steps, by providing a roadmap to aspects of the misconduct that it might otherwise take investigators significant time to discover and understand Rewards for Cooperation In exchange for cooperation, the guidelines provide that the defendant could get credit in the form of reductions in damages multipliers used to determine settlements or reduced civil penalties. If there are administrative overseers involved, the DOJ will work to inform those overseers of the company’s willingness to cooperate so it can be considered if further action has to be taken through those administrations. Companies who get credit… Read more »
One of the ways the government makes reporting fraudulent activity attractive is by offering cash incentives, or settlements. However, although there are obvious monetary benefits to blowing the whistle, there are other points to think about when you are considering bringing a case out into the open. The first is the cost to you, personally, such as the cost of retaliation, the time dedicated to your case that will be lost, as well as the cost of lost wages. The other consideration is more positive, and that involves the monetary gains that will come to you from blowing the whistle and reaching a successful outcome.
Research and practical results show that companies perform better and have better results when they encourage and support whistleblowers. Those within a company who realize there is wrongdoing taking place are often afraid to step up and say anything for fear of repercussion. Much of this apprehension comes from a lack of understanding of the process, confusion about the role they play in the investigation and fear about their identity being revealed. Companies stand to gain a significant ally in their efforts to improve corporate performance when they support whistleblowers to help them feel comfortable and confident about speaking out.
Patients rely on care providers to give them advice based on their own best interests, but when kickbacks are involved, these patients are getting advice based on something else entirely that could put their health at risk. Whistleblowers are encouraged to fight back for the benefit of everyone. Here’s how whistleblowers can fight kickbacks in the health care industry.
Most people believe they would do the right thing if they discovered the corporation they worked for was doing something illegal or unethical. The truth is, being the whistleblower can come with risks. You face the possibility of repercussions, such as being ostracized by your fellow employees or losing your job.