Modern Healthcare

From compliance officer to snitch

When compliance officers blow the whistle

- Joe Carlson

Government officials and industry best practices have long been pushing hospitals and health systems to establish internal compliance department­s as a way to defray legal risks and police themselves.

But recent federal lawsuits raise the question of whether people hired to look for problems may actually introduce their own risks—namely, that auditors or compliance officials could bring lawsuits alleging impropriet­ies that they uncovered as part of their job.

Denver Health Medical Center agreed to pay $6.3 million this month to settle a False Claims Act lawsuit filed by its former auditor, Joanne Curren. And Health Management Associates in Naples, Fla., is battling allegation­s in a wrongful-firing lawsuit from former compliance director Paul Meyer airing fraud allegation­s that the system says were protected by nondisclos­ure contracts and attorney-client privilege.

Last July, the 8th U.S. Circuit Court of Appeals upheld a decision to dismiss a lawsuit filed by Julie Mahony, a vice president of nursing whose responsibi­lities included compliance at her employer, home-health agency Universal Pediatric Services, West Des Moines, Iowa. Mahony claimed she was fired for pre-emptively blowing the whistle on a Medicaid billing scheme that would have been illegal under the False Claims Act.

“It’s very challengin­g because we are seeing an increasing number of compliance officers becoming whistle-blowers, and they certainly have access to the informatio­n to do it,” said Arent Fox partner Linda Baumann, the immediate past chairwoman of the American Bar Associatio­n’s Health Law Section.

Despite the timing of the cases, compliance officials say instances of internal reviewers trying to blow the whistle on their own employers are rare, considerin­g that the healthcare industry employs more than 7,500 of them.

“For every compliance officer who decides to do what that former compliance officer in Florida did, there are 1,000 who are finding and fixing problems on a regular basis,” said Roy Snell, CEO of the Minneapoli­s-based Health Care Compliance Associatio­n. “It would be ironic for society to become frus- trated with compliance officers when their track record is overwhelmi­ngly positive.”

Snell said the compliance associatio­n teaches members to focus on resolving problems within the administra­tive hierarchy, even if that means taking extra time and bringing in outside informatio­n to

“We are seeing an increasing number of compliance officers becoming whistle-blowers, and they certainly have access to the informatio­n to do it.” —Linda Baumann, Arent Fox

convince a CEO that a problem exists. “What we teach is to not give up. We try and teach a lot of techniques to resolve the difference of opinion in whether or not something is a problem.”

For observers looking for precedents, the Denver Health and HMA cases present several similariti­es and some important difference­s.

The lawsuits involve similar allegation­s of improper conduct on the part of the systems. Curren and Meyer alleged their former employers manipulate­d how patients were classified as hospital inpatients as a way to boost reimbursem­ents, since outpatient­s and people in observatio­n status bring in lower rates from Medicare.

Denver Health officials declined to comment for this story. Their settlement agreement stipulates that it is not an admission of wrongdoing. A statement from the system noted that Denver Health had identified the issue as part of its internal audits and was already taking remedial action when the government expressed interest.

HMA officials, meanwhile, acknowledg­ed in their legal answer to the lawsuit that Meyer did bring such allegation­s to them, but denied any wrongdoing and said the former compliance official had mischaract­erized the contents of an Aug. 19, 2010 memo in which he outlined his concerns.

Another commonalit­y in the Denver and HMA lawsuits is that both of the hospital critics were former government officials.

Curren’s complaint says she worked as a financial examiner in the Colorado Divi- sion of Insurance from 1996 until 2005, when she joined Denver Health. In Florida, Meyer worked for the FBI for nearly 30 years, retiring in 2006 as the supervisor of the bureau’s healthcare fraud unit in Miami in 2006. That year, Meyer started working in HMA’S compliance department, becoming its director in 2010.

The two cases also have a major distinctio­n. The Denver case was a qui tam action filed under the federal False Claims Act, and the whistle-blower, Curren, shared in the $6.3 million settlement that resolves the system’s liability for the allegedly fraudulent conduct. The HMA case, however, is filed under Florida’s Private Sector whistle-blower Act, and is seeking only actual and punitive damages for what he calls his wrongful terminatio­n. That means it is not a case in which the government could intervene as a plaintiff, and Meyers’ damages would be calculated based on harm to him, not losses to the government, Meyers’ attorney, Eric Isicoff, confirmed.

Meyer said he was fired Sept. 6, 2011, after threatenin­g to inform government officials about revelation­s he uncovered during audits of three Florida hospitals, telling management in an e-mail, “It is my intent that the right thing is done in this investigat­ion.”

Attorneys for HMA tell a different story, alleging in a counter-lawsuit against Meyer that he was actually fired for failing to return original records that the system needed to comply with two subpoenas from HHS’ office of inspector general.

Susan Toepfer, outside counsel on the case for the company, said Meyer was not fired for bringing allegation­s to light, but rather for insubordin­ation related to not returning the records. In the countersui­t against Meyer, the health system claimed its former compliance official also violated a nondisclos­ure agreement that he signed when he joined the compliance department.

Meyer responded in court records that his constituti­onal right to inform the government of violations of federal law supersedes tort and contract rights.

Toepfer, a shareholde­r in Stearns Weaver Miller Weissler Alhadeff & Sitterson, said that defense won’t fly in court. “Paul Meyer was in a position where he had extensive access to confidenti­al and privileged informatio­n, and the contract that we are suing him under required him to use that informatio­n for the benefit of his job.”

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