Whistleblowing in Modern Medicine

Many healthcare providers have a bad connotation when it comes to someone who has blown the whistle. It is almost like they have crossed the white line, so to speak, regarding confidentiality and have also perhaps destroyed lives and professional careers, as well as violated HIPAA (in some people’s view). After 30 years of practice in healthcare, 20 years as a nurse practitioner, and two decades as an attorney, I can tell you: nothing could be further from the truth. At this point in time, billions have been lost in healthcare fraud schemes by the actions of unscrupulous providers.

One of the main targets are new nurse practitioners and less experienced physicians who join a group practice. The mechanics of healthcare fraud are myriad, but a good example is that of a nurse practitioner, physician assistant, doctor, or even an RN or LVN/LPN being used as a dupe in order to further the healthcare fraud scheme.

My Experience as a Federal Lawyer

In my experience as a federal lawyer, conspiracy is one of the weapons or tools that the government uses as leverage to seek the truth and either arrest or civilly prosecute those who are involved in healthcare fraud. For instance, imagine a nurse practitioner who joins a group and provides information (such as his/her provider identification number, or NPI). Often, these numbers are given blindly to the biller of a practice, many of whom are independent or have an economic gain in increasing the billing. For instance, a biller may earn between four and eight percent of the profit of the billing and may be tempted to upcode what a provider diagnosed. For instance, a regular office visit, coded as 99313, could easily be changed to a 99314 on a regular basis, allowing for greater reimbursement. This is a red flag for the Office of the Inspector General, the FBI, and other state and federal regulatory agencies. Although the provider did not bill the service themselves, or submit those bills to the government, they are nonetheless held responsible because they allowed their NPI number to be assigned to the bill.

Another example is a scheme in which less experienced providers are pressured into seeing more and more patients daily in order to increase revenues. As reimbursements decrease in fluctuating markets, many unscrupulous practitioners are interested in increasing the number of patients that they see in order to increase revenue. Similar schemes involve unbundling laboratory data or other diagnostic tools to increase revenue. In some cases, healthcare providers opt to practice in a medically-underserved or rural area or to self-refer up to 40 percent of their practice. These  schemes also trigger red flags from the government and can cause undue billing to the taxpayer and the patient. Of course, it also ultimately causes an increase in an already overburdened system.

The next steps would be of course to file a Complaint under seal and it is perfectly correct for a whistleblower to obtain the names and documents of patients who may have been overbilled or What Are the Solutions?

Many government agencies are encouraging lawyers like myself and healthcare providers to become what are called whistleblowers or relators. This takes a great deal of courage. Many providers may fear stepping forward and worry that they will be blackballed within their profession for becoming a relator. But nothing could be further from the truth. Often, these people are given rewards for stepping forward and telling detailed versions of what is happening within the office, the home health system, the hospice, or other healthcare institution. (Note that healthcare fraud schemes are not just limited to hospitals and clinics, but are being flagrantly used within the hospice and home health arena. Healthcare providers mistakenly believe that state and federal officials overlook other healthcare delivery system, but this is not true.) Care must be taken for the novice healthcare provider not to get involved with an organization that is committing healthcare fraud.

How Can the Novice Provider Exercise Caution?

Entering into a new field — particularly for the new provider or for the retired physician who is looking for “easier” or less strenuous work — is fraught with instability. Often, information is not shared freely by management and healthcare providers are expected to sign or acquiesce to a given organization’s culture. Examples of this include:

  • A physician is asked to recertify hospice and home health patients without the physician physically seeing the patients.
  • A nurse practitioners is asked to see patients initially to certify them for in home health, and then, without seeing them again, is asked at a later date to recertify.

Both of the above examples can be construed as illegal, unethical, and dangerous. A physician should always physically see a patient for whom he is signing a plan of care for, and should always see a patient before recertifying, whether it be for in home health or hospice. Many clinicians fail to do so. Many house call businesses are also scheming to commit healthcare fraud, and it becomes far easier when physicians are scarcely available and nurse practitioners are allowed to perform most, if not all, of the paperwork and duties that a physician might undertake under normal circumstances. If you are a nurse practitioner or physician assistant, insist that a physician maintain a pivotal role in initially assessing the patient and following the care plan. Communication is the key in an interdisciplinary group practice: the physician, the nurse practitioner, and the physician assistant should be involved.

In addition to the examples given already, telemedicine is another area of practice that requires the exercise of extra caution. Telemedicine is rapidly becoming a more sought-after form of revenue for the healthcare provider, and patients are increasingly interested in the convenience of care. Unfortunately, telemedicine services, particularly those provided to inmates in correctional facilities, can be abused. Indeed, as a clinician in Texas, a state that is one the “free states” where nurse practitioners may practice independently, I regularly ensure that I am collaborating with physicians. If you are in a state that requires collaboration, you are compelled to have a physician do the initial examination and documentation. If you are in a free state, I still would recommend careful documentation and oversight, especially for Medicare and Medicaid reimbursements.

What Is the Whistleblower’s Role?

Bearing in mind all of the information presented thus far, a whistleblower may be entitled up to 20 percent reimbursement for speaking out against unscrupulous healthcare providers. The whistleblower must remember that they should not discuss the alleged healthcare fraud with anyone that is not a member of the association. Whistleblowers are encouraged to confront those in management and ask them for an opinion regarding a practice that may seem unscrupulous. If they are ignored or retaliated against, this is the time when a whistleblower needs the help of a qualified healthcare attorney to coordinate efforts between the whistleblower and the state or federal agency. Without a qualified healthcare attorney, many whistleblowers make critical errors, like going to the press or otherwise “breaking the seal.” This makes the offense public knowledge and may constitute interference with the federal investigation, up to and including obstruction of justice. Whistleblowers must be as discreet as possible. In my cases, I urge my clients not to speak to anybody involved in the organization after attempting to notify upper management because it can lead to exposure of all involved. I encourage my clients to speak only to me and my legal team, in order to prevent obstruction of justice or interference with what may be an ongoing investigation.

The next steps would be to file a Complaint under seal, at which point it is perfectly correct for a whistleblower to obtain the names and documents of patients who may have been overbilled or who have been affected by healthcare fraud. Ordinarily, this would be a violation of the Health Insurance Portability and Accountability Act (HIPAA), but the exception to the rule is when obtaining information for the benefit of the government. If at all possible, the whistleblower can obtain the names and medical identification (or Medicare) numbers of those involved, and services that may have been overutilized or falsely created. Care must be taken to maintain absolute secrecy. The attorney may then file a lawsuit under seal, which means that it the case is not open to the public. A meeting is then held with the state or federal officials and they have the option to criminally or civilly prosecute the case (or both). There may be a substantial reward for those who stand up and prevent healthcare fraud.

Summary

The purpose of this article has been to create awareness that there are pitfalls for unknowing, inexperienced, and even experienced healthcare providers. Often, the institution’s culture has become so ingrained that healthcare fraud is not seen as wrongdoing and is deemed “business as usual.” Certain hotspots such as Houston, Detroit, south Florida, and south Texas are places that the government is thoroughly investigating. As a healthcare provider and a lawyer, I ask healthcare providers who suspect healthcare fraud contact the attorney of their choice and stand up to prevent billions of dollars of waste.


Joe Flores loves what he does. Not only is he a nurse practitioner and an RN, he is also a national lecturer on healthcare fraud. He is actively involved in preventing healthcare fraud. He represents whistleblowers in their attempts to save taxpayer money, prevent patient exploitation, and protect healthcare providers. You can contact Joe at joe@floreslawfirm.com.


Image: Lightspring / shutterstock

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