Blowing the whistle on health care fraud [PODCAST]

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“Fraud in the health care industry is a fact of life.  In 2016 alone, the federal government estimated that improper payments by Medicare and Medicaid totaled about $95 billion.  And that’s only a single year’s amount for just two of the government’s many health care programs.  With an aging population, increased health care spending, the passage of the CARES Act, and the government’s multi-trillion-dollar effort to mitigate the health and economic effects of the COVID-19 pandemic, health care fraud will only increase.

Unfortunately, some of the readers of this article will be in the unenviable position of witnessing or even being asked to participate in billing and treatment frauds. Most will want to do the right thing and report it but will understandably be concerned about the effect on their careers. Rest assured, there are powerful laws in place to address this situation.”

Joseph Gentile is an attorney.

He shares his story and discusses his KevinMD article, “Blowing the whistle on health care fraud: the rewards and protections of doing the right thing.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have Joseph Gentile. He’s an attorney, and he wrote the KevinMD article “Blowing the whistle on health care fraud: the rewards and protections of doing the right thing.” Joseph, welcome to the show.

Joseph Gentile: Thank you very much. Happy to be here.

Kevin Pho: So we’ll get into your article in a little bit, but first off, can you share your story and your journey to where you are today?

Joseph Gentile: Sure. Before we start, I just wanted to say thank you to you for having this platform and having me on. It’s a really great resource for the wider health care community, which I consider myself a part of, so thank you.

So I guess my journey is, I grew up in New York City. I live here now and practice out of New York City. I went to Catholic schools basically my whole life. I think I hold a world record there: I have 19 years in a row of Catholic schooling, which culminated with me going to law school at Boston College. While I was at Boston College, I knew I wanted to go into something that intersected with public interest work. And so what I did when I graduated is I started working at a law firm that handled class actions on the plaintiff side. At that time, I worked on cases mostly representing investors, or employees in their retirement plans or health care plans.

I started my own firm with an associate there a short while after I started. That was in 2004. And so since that time, we’ve been handling class action lawsuits, and at one point we transitioned to where, while we still handle class actions, our practice now is largely focused on representing whistleblowers.

The way we got into that was really pretty organic and unintentional. Frequently, when we have a class action, the cases get a lot of press, and you will get employees of the companies that you’re suing kind of calling out of the woodwork and saying, “I know you’re focused on this aspect of what’s going on, but you should know that the company is also doing this.” And over time, it occurred to us, from a lot of this information that was being said to us, that these people had really legitimate whistleblower claims, and we decided to transition in that direction.

The majority of our whistleblower practice is focused on health care, because the majority of whistleblower cases have to do with Medicare and Medicaid and, to a lesser extent, TRICARE. So we’ve been doing that. We handle cases in this area nationwide. When there are cases outside of New York, we team up with local counsel around the country to handle them. And that’s basically where we are.

Kevin Pho: All right, so let’s talk about your KevinMD article, “Blowing the whistle on health care fraud: the rewards and protections of doing the right thing.” Now, for those who haven’t read your article, can you walk my audience through it and perhaps share the story of why you decided to write it?

Joseph Gentile: I wrote the article primarily to educate doctors and other health care professionals that there are laws out there that are meant to help you if you’re in the unfortunate situation of witnessing, or tangentially kind of being forced to be part of, a fraud, a fraud on Medicare or Medicaid or other permutations of it. A lot of people aren’t aware of that, and so I wanted to just raise public awareness for that, because from dealing with people all the time that are in this situation, it’s an extraordinarily stressful situation that I wouldn’t wish on anybody. And I wanted to just walk through the bare basics of what’s out there.

So the primary tool that is out there in this area is a law called the False Claims Act, which is a federal law. And there’s a bunch of state laws that essentially mimic it at the state level also, but they’re very similar to the federal law in a lot of ways. That law was initially passed during the Civil War, because you had a lot of profiteers selling sick mules and faulty ammunition to the Union Army, and it was a way to encourage people to come forward and put an end to that.

In the modern context, it deals by and large with health care. And what it is, is a law that says that if you have evidence that there is a fraud on the government, there are laws that essentially offer protection from retaliation, so that if you step forward and bring the information to the government and you’re retaliated against by your employer, there are protections in place to try to lessen the flow of that and to discourage that from happening.

And also, there’s a bounty, essentially, associated with it. People take a big risk with their careers when they step forward and decide to blow the whistle. So to try to still encourage that and compensate people for taking that risk, the government also offers a percentage of what they recover to those people. It’s usually between 15 and 30 percent of what’s recovered. These cases, though, have a history, not in every case, of returning large amounts to some people in some cases. We were involved in one case where there were six whistleblowers, and they ended up splitting over $100 million between them for blowing the whistle on a pharmaceutical fraud. So while that’s not typical, that does happen. So we really just wanted to let people know that that’s out there, and that’s a tool that they could use if they’re in a bad situation with us.

Kevin Pho: Sure. In a typical outpatient physician practice, like the practice that I’m in, for instance, what are some common examples of health care fraud that you see?

Joseph Gentile: Probably the most egregious ones that I see are procedures or tests being performed when they’re not necessary, simply to drum up bills. That is probably the most egregious example. It’s not my case, but I’m aware of a colleague that has a case, for instance, where it was a practice that was unfortunately diagnosing people with cancer when they didn’t have cancer, so they can go and bill chemotherapy. That’s probably the worst thing I’ve ever heard happen on this front.

But the more typical has to do with upcoding. It has to do with billing for services that did not occur, perhaps billing at a higher code than it deserves. Those are probably the most common frauds that you see. And then there’s off-label marketing, which has to do more with pharmaceutical companies than it does with practicing physicians, but they’re part of that too, because sometimes they’ll have evidence of this through kickbacks that are offered as part of that.

Kevin Pho: So during the pandemic, which is during the last six, seven months or so, are there any other specific cases of fraud that are related to all the telemedicine and virtual medicine that’s been more prevalent since the pandemic started?

Joseph Gentile: I’ve seen anecdotal evidence of that, but one of the things about these cases is they take a long time to become public, because when we file these cases, we file them under seal, because the government wants the ability to investigate the target without the target being aware that it’s out there. So a lot of the investigations that are going on right now due to COVID-related stuff, it’s not public. But I have seen anecdotal evidence that there’s been a spike in fraud related to that, particularly at the hospital level: taking funds that aren’t necessarily needed, or charging for services that aren’t actually being provided.

Kevin Pho: So let’s say you suspect cases of fraud within an organization. Now, what is the practical advice? What is the next step that employees should take?

Joseph Gentile: The next step that they should take is they should probably get in touch with an attorney. This is a highly specialized area, so I think it really behooves them to get in touch with an attorney that focuses their practice on this area. And that attorney hopefully will be able to guide them through several things: number one, look and see whether what’s going on is in fact illegal or not; how to prevent retaliation; if they decide they want to go forward with the case, how to gather evidence in a way that’s not going to raise alarm bells and also is not going to violate any laws around HIPAA or around any type of agreements that you have with your employer in terms of how to treat information; and just to prepare for what’s coming down the line.

Because if you do go forward with one of these cases, more often than not, the person is going to end up leaving their job voluntarily. They’re not going to want to be there when this is going on, for a bunch of reasons. So they’re going to want to get their house in order to deal with that, and also just to mentally and emotionally prepare for what will be a tough few years. Even if these cases go well, there’s a lot of stress involved. For most people, it’s not their everyday practice to be dealing with the FBI and assisting them in an investigation, or the U.S. Attorney’s Office, so it takes a little preparation.

Kevin Pho: Sure. We’re talking to Joseph Gentile. He’s an attorney, and he wrote the KevinMD article “Blowing the whistle on health care fraud: the rewards and protections of doing the right thing.” Now, what are some red flags that practitioners should look out for that may be suggestive of fraud within your organization?

Joseph Gentile: I guess one of the things that I see come up a lot that’s a good indication of fraud is that the people you would expect to be performing certain functions in the normal course are not performing those functions. If you see somebody that is more secretive and hoarding paperwork, for instance, more than you would expect; if you see, even if you’re not sure of an area, somebody trying to force a particular behavior down your throat, just to sign off on something or do something because “this is just the way we always do things,” that type of stuff is usually a good indication that something is afoot, if you’re not seeing anything explicit.

And if you see that type of behavior, especially as a doctor, I would take some pause and really try to figure out what’s going on. Because unfortunately for doctors, not related to False Claims Act cases necessarily, it’s very easy to almost unsuspectingly get involved in something where you’re signing off on papers because your boss is telling you to. You can’t really abdicate responsibilities to people above you, because you have licensure risks that other employees may not necessarily have. So I would just say, at those junctures, if your spider sense is telling you that something may be off, I’d take some calls.

Kevin Pho: And my final question: Do you have a take-home message that you want to share with my primarily clinician audience at KevinMD?

Joseph Gentile: If you are in the unfortunate situation of being a witness to some fraud that’s going on, some intentional fraud that’s going on, it’s an extraordinarily difficult situation to be in. There are so many things that will probably be going on in your head in terms of the pros and cons of doing something about it, because if you do do something about it, even if it’s just emotional, there’s a price to pay with it.

But I will say this: The majority of the time, the worst does not come to pass. The worst-case scenario does not play out for people, especially if they are proactive and seek help, because there is a group of attorneys, which I’m one of, in the country that handle these cases, and we are out there to try to help in these situations. And they should just feel comforted, I guess, that there are people out there, and there are laws in place, and there are people in the government as well that are interested in protecting them and interested in acting on what they have to say. So, you know, the situation looks really dire now. In my experience over the course of a few years, it doesn’t play out that bad. A lot of times, it plays out really well for people.

Kevin Pho: Joseph, thank you so much for sharing your time and insight, and thanks again for being on the show.

Joseph Gentile: Yeah, thank you very much. Really appreciate your time.

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