The Risk of Diagnosis Upcoding

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 »

New Department of Justice Guidelines on Credit for Cooperation in False Claims Act

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 »

The Finances of Being a False Claims Act Whistleblower – How Much Do You Get for Blowing the Whistle?

The Finances of Being a False Claims Act Whistleblower - How Much Do You Get for Blowing the Whistle?

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.

How Can Whistleblowers and Companies Work Together to Solve Problems? 

Tim McCormack

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.

How Can Whistleblowers Fight Kickbacks in the Health Care Industry?  

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.

Internal Reporting System to Support Whistleblowing Benefits Corporations

Tim McCormack

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.

Compounding Pharmacy Fraud

Compounding pharmacies can provide a valuable services when a patient needs a customized formulation of a prescription drug.  Unfortunately, because of lax regulations and high reimbursement, some compounding pharmacies can also present the potential for major risks to patient health and significant healthcare fraud, especially for fraudulent prescriptions for topical pain creams and scar creams.  

Protecting Whistleblowers from Retaliation: Using a Corporation or Partnership as the Whistleblower

Partnerships and LLCs, are they the magic bullet to help protect whistleblower confidentiality? In this video I discuss the benefits and limitations of whistleblowers using a corporate entity (like an LLC) or a partnership (LLP) to protect themselves from whistleblower retaliation. In short, using an LLC or LLP can be helpful, but: (1) only in specific limited situations; (2) there are risks that come with using a partnership or a corporate form while you are blowing the whistle; and (3) you cannot guarantee anonymity.