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Whistleblower Revenge in Healthcare

Are you taking notes? I’m talking about the day-to-day administrative tasks your employer assigns to you. The notes you take now, when everything is agreeable, can save your ass or compensate you once things go sour.

Consider this, if I hired a forensic chart auditor and had them go through 100 of your random medical charts, could I find something wrong which could get you into trouble? Being a physician means that you are going to make mistakes. We take shortcuts and we follow our instinct. Without this, healthcare would be much more expensive than it already is.

Just like you make mistakes as a physician, so do medical groups. In order for a large HMO or PPO to remain competitive, they have to come up with workflows which border on illegal. Grossly, they are simple administrative tasks assigned to physicians. But the Department of Justice (DOJ) doesn’t care about the appearance – they actually care about the intentions of the medical group as I’ll explain below.

A great example is HCP, an organization I used to do a ton of moonlighting for in California. They were investigated for Medicare fraud under the False Claims Act through the DOJ and ended up paying $270 million.

The whole case unraveled because of a whistleblower; likely a disgruntled employee who gets to keep somewhere in the 15-30% range of this entire settlement. To be exact, somewhere in the $40-81 million range – all for one little person who spoke up.

 

What do you have on your employer?

A friend who was a specialist at a large private medical group, had a fallout with his boss. The boss pulled a power play and fired my friend which didn’t end well for the employer. What the employer didn’t know is that my buddy had been keeping detailed notes on all the day-to-day admin stuff, much of which wasn’t 100% legal.

It all passed the sniff test, but once you dove in deeper, that private medical group had been falsely billing Medicare for some crazy shit – nearly $45 million worth. Management was getting this billing blitz done by organizing weekly department meetings and telling the doctors what to order for what conditions and how to document it.

Except that you can’t do that when dealing with government dollars (Medicare and Medicaid). You can discuss health related issues with your physicians and how to best manage a disease but never in the context of what to order for what disease and how to bill for it for maximum reimbursement. I know that you might read this and think I’m wrong – I assure you, I’m not.

 

Keeping records

You never know when you might need some documentation to get you out of a bind or help you secure some justice. Maybe your boss bullied you or maybe HR told you to do something which didn’t seem right.

Maybe your office manager told you to perform a “Medicare Refresh” by fishing through a bunch of charts of patients who hadn’t been seen for a while.

Maybe you were contacted by the billing department and told that you should add a particular diagnosis and order something else based on what they had uncovered.

Remember that you cannot keep records which have HPI – that puts you at risk. But you can jot down patient initials, dates, and times. Then you can record for yourself in a time-stamped document what all took place. Will you ever need it? Hopefully not.

 

Recognizing fraud

For 3 years at Kaiser Permanente, 2 years spent as a medical director, I was in charge of some decision-making and in charge of passing down information to physicians for the purposes of billing and documentation.

An issue came up with refreshing Medicare diagnoses. To explain this to you, imagine you are an HMO taking care of 9 million Americans, employing 15,000 doctors. 35% of your patients are insured through Medicare which is your most solid revenue stream.

Kaiser is just such an organization and acts as a Medicare Advantage plan to administer Medicare to those patients. As an MA, they are paid per diagnosis and keeping that diagnosed refreshed, year after year. For example, a patient who has Type 2 DM will earn the organization $4,500/year. But if their A1C is at 6.5 and no diagnosis is put in the chart for DM2, no reimbursement takes place.

So, management hires a bunch of medical coders and puts them in charge of reviewing all the Medicare charts and identify cases where certain diagnoses weren’t updated or some which were missed. These are then flagged and pointed out to physicians.

However, not just any doctor can go around updating the patient’s chart and diagnosing random chronic diseases just because a test was done. You have to show that this physician was in charge of the continued care of the patient (primary care) and that the entire chart was reviewed for valid reasons and not just billing.

Finally, that diagnosis must be addressed in a face-to-face visit and counseling must be provided to the patient. You can’t just go in the chart and put in a diagnosis because of some piece of paper you got on your desk. Tsk, tsk, tsk.

 

Reporting fraud

Let’s say you were a physician at Kaiser and somehow you were let go or you left. But you still have your documentation and want to report this terrible injustice to the proper authorities. Not to make any money, no. You just love seeing justice being done in the world.

There are 2 ways to go about it. You can present your concerns to the Department of Justice and wait 5-10 years for them to investigate the matter and agree to a settlement with Kaiser. And if that amount is somewhere in the $100 million range, you’ll net 30% – $30 million.

Or you can go to a lawyer and have them package up the entire case nicely, do all the investigations, subpoena the right people, and present the whole thing to the DOJ in order to expedite the process.

Depending on your involvement, you’ll get a little less than 30% since the lawyers would need their share as well. But rarely less than 15%.

 

Whistleblower protection

Of course, you likely were involved in some of these illegal activities since you’re the whistleblower. But because you may not have known about it, you are afforded a lot of protection under various laws.

Even if you decide to remain employed, your employer cannot retaliate against you. Of course, it makes little sense to stay in your workplace after you out your employer.

Despite all the legal protections, you should expect potential retaliation and take steps to protect yourself. Fortunately, some law groups specialize in nothing but healthcare fraud and will protect you during the entire process.

 

Doctors as whistleblowers

If you’re a doctor, you probably are used to having a very high moral caliber – not because you’re high and mighty but because you are in charge of people’s lives; some who are under anesthesia, others who can make decisions for themselves.

Being a whistleblower is greasy business, should a doctor really get caught up in that shit? Well, if being a doctor is a privilege rather than a right, you definitely should be blowing your whistle and collecting that paycheck.

If you as a physician have always been fairly treated by your employer, if your employer has no history of retaliating against employees, and if your organization truly stands for the good of the community, you should rethink being a whistleblower.

What a doctor can do instead is go all the way up the food chain and express their concern with leadership. Again, if you don’t expect any retaliation and don’t feel that you’ll be identified as a complainer or troublemaker, this is the best option.

Alternatively, discuss the case with a lawyer – most lawyers will hear such cases for free due to the potential future payout. If they think that what your organization is involved in is illegal, you can then choose to walk away from the organization or make them your cash cow.

 

Blowing your whistle

If you’re going to blow the whistle on your employer, take steps to protect yourself and increase your chance of success:

  • look for previous successful cases against your employer in the same realm
  • find the law office which previously litigated your employer
  • sit down for a free hearing with that law group and provide them all the details
  • recruit other physicians, ideally a mix of ex-employees and current employees who can be witness to your claims
  • spend 1-2 years preparing the case with your lawyer (free of cost to you)
  • expect another 1-3 years for the cases to either be settled or for a court case to ensue

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