Whis­tle-blower re­play

Doc turns to court in kick­back case

Modern Healthcare - - THE WEEK IN HEALTHCARE - Joe Carl­son

Once again, a critic who says he was rep­ri­manded for con­fi­den­tially rais­ing con­cerns about doc­tors’ pay has turned into a whis­tle-blower for the fed­eral govern­ment. This time it hap­pened in Mo­bile, Ala., where car­di­ol­o­gist Dr. Chris­tian Heesch says a profit-shar­ing ar­range­ment be­tween doc­tors and the di­ag­nos­tic clinic owned by In­fir­mary Health Sys­tem vi­o­lated the Stark law and False Claims Act. Po­ten­tial dam­ages are said to be north of $500 mil­lion, mak­ing it at least the third ac­tive nine-fig­ure Stark case pend­ing against a hos­pi­tal in which the U.S. Jus­tice Depart­ment has in­ter­vened as a plain­tiff.

Un­like some of the other cases, Heesch also pin­points hu­man vic­tims: pa­tients, in­clud­ing a few mil­i­tary fam­i­lies on Tri­care, whom he claims were need­lessly ex­posed to po­ten­tially harm­ful ra­di­a­tion through nu­clear stress tests that use ra­dioac­tive dye to mea­sure the flow of blood through the heart. Most of the vic­tims cited in the com­plaint were on Medi­care and Med­i­caid.

Mark Nix, CEO of In­fir­mary Health Sys­tem, said in an e-mailed state­ment that the al­le­ga­tions re­late mainly to work done in In­fir­mary’s Di­ag­nos­tic and Med­i­cal Clinic, a sub­sidiary of In­fir­mary and code­fen­dant. He said the clinic de­nies the al­le­ga­tions and will fight them vig­or­ously.

Heesch said he be­gan speak­ing out about his con­cerns at least four years be­fore he filed suit, ob­ject­ing to both the ar­range­ments that gave physi­cians in­cen­tive to al­legedly fal­sify med­i­cal records to jus­tify more test­ing, as well as the high num­ber of stress tests be­ing done on pa­tients.

In March 2009, Heesch made a con­fi­den­tial re­port to the Alabama Depart­ment of Pub­lic Health, which he said cited the sys­tem’s Mo­bile In­fir­mary Med­i­cal Cen­ter with vi­o­la­tions for im­proper imag­ing and or­der­ing cor­rec­tive ac­tions.

Heesch said the cor­rec­tions and ob­jec­tions didn’t stop the high rates of test­ing. In­stead, the new test-ap­proval pro­ce­dure was “wa­tered down” be­fore it was im­ple­mented, and he was warned to stop men­tion­ing his con­cerns about the un­der­ly­ing prac­tices that led to the un­needed pro­ce­dures.

Rather than hav­ing his con­cerns ad­dressed, Heesch “re­peat­edly was ad­vised to cur­tail his ‘dis­rup­tive’ writ­ing of mem­o­randa,” the law­suit says.

Ex­perts say po­ten­tial whis­tle-blow­ers of­ten raise their con­cerns pri­vately within or­ga­ni­za­tions, and turn to the court sys­tem when their ef­forts at re­form are re­buked.

The Jus­tice Depart­ment has four months to file a sep­a­rate com­plaint based on Heesch’s al­le­ga­tions. The govern­ment of­ten pur­sues a nar­rower set of al­le­ga­tions than the ones laid out in the whis­tle-blower law­suit that draws the in­ves­ti­ga­tion.

Heesch’s com­plaint al­leges the tests were bla­tantly overused be­cause doc­tors were fi­nan­cially rewarded for or­der­ing more tests, even though they ex­pose pa­tients to small doses of ra­di­a­tion.

The Jus­tice Depart­ment in­ter­venes in only about 20% of all whistle­blower claims. Jus­tice of­fi­cials have said pub­licly many times that one of the top fac­tors they con­sider in de­cid­ing whether to join a case is whether it goes be­yond fi­nan­cial mat­ters and af­fects pa­tient health.

Heesch said pa­tient med­i­cal records were al­tered to jus­tify the tests, in­clud­ing in­stances where physi­cians would falsely claim that pa­tients had com­plained of chest pains or had ab­nor­mal test re­sults.

In re­turn for steer­ing pa­tients to­ward nu­clear stress tests, the law­suit al­leged, the health sys­tem pro­vided be­low-mar­ket of­fice space and an offthe-books pay ar­range­ment in which the hos­pi­tal gave the physi­cians a share of the fees from govern­ment health pro­grams. The se­cret pay­outs were held back a year and dis­guised us­ing a “fudge fac­tor” so they didn’t di­rectly cor­re­late with physi­cians’ pre­scrib­ing ac­tiv­ity, it said.

The ar­range­ment al­legedly vi­o­lated the So­cial Se­cu­rity Act’s pro­hi­bi­tion on kick­backs in health­care, as well as the Stark law pro­hi­bi­tion on physi­cians re­fer­ring pa­tients to other providers in which they have a fi­nan­cial in­ter­est. The vi­o­la­tions would cre­ate il­le­gal claims for govern­ment health­care dollars, trig­ger­ing dam­ages up to three times the orig­i­nal pay­ments un­der the False Claims Act.

Nix said the govern­ment’s de­ci­sion to join Heesch’s com­plaint was dis­ap­point­ing, es­pe­cially since th e sys­tem and the clinic have worked with govern­ment in­ves­ti­ga­tors for more than a year to re­spond to ques­tions.

“We be­lieve the clinic has pro­vided ser­vices and com­pen­sated its physi­cians in full ac­cor­dance with the law and that the clinic acted in the best clin­i­cal in­ter­est of our pa­tients,” Nix said in a state­ment. “Tests per­formed at the clinic were med­i­cally nec­es­sary to pro­vide ap­pro­pri­ate care for our pa­tients and in com­pli­ance with ap­pli­ca­ble re­quire­ments.”

The Jus­tice Depart­ment has at least two other high-dol­lar cases pend­ing against health­care providers. The govern­ment asked a fed­eral dis­trict judge in South Carolina to fine Tuomey Health­care Sys­tem as much as $237 mil­lion af­ter a jury ruled May 8 that the hos­pi­tal vi­o­lated the Stark law and False Claims Act be­cause com­pen­sa­tion for 19 lo­cal spe­cial­ists var­ied with the vol­ume of ser­vices they re­ferred to the hos­pi­tal.

And in a whis­tle-blower case slated for trial in Novem­ber, the Jus­tice Depart­ment has asked for $354 mil­lion against Hal­i­fax Health of Day­tona Beach, Fla., in a case that al­leged the hos­pi­tal com­pen­sated six on­col­o­gists based on the op­er­at­ing mar­gin of the sys­tem’s can­cer pro­gram.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.