ThePopTort

The Real Fraudsters

If you happen to live in a black or Latino neighborhood in a swing-state city like Cleveland, Ohio, you may have noticed Clear Channel’s screaming “Voter Fraud is a Felony” billboards. These billboards, “'stigmatize the African-American community by implying that voter fraud is a more significant problem in African American neighborhoods than elsewhere,’ [even though voter fraud is a myth ] and the billboards ‘attach an implicit threat of criminal prosecution to the civic act of voting.’”  The cowardly rich folks who paid for these billboards won’t come forward. Of course not.

We bring this up because one of the burdens of being disadvantaged in the country is having to live with the indignity of being regularly accused of committing fraud.  Yet, it’s the power elite themselves who commit most of it – and often victimizing the disadvantaged while doing it. 

Workers compensation is another example.  In the early 1990s, insurers and businesses began trumpeting up distorted rhetoric around the idea of “fraudulent” workers’ compensation claims, greatly exaggerating the extent of the problem (maybe 1 to 2 percent of claims).  Yet fraud is most likely caused not by workers, but by employers - underreporting payroll, declaring employees as independent contractors, misclassifying occupations, and misrepresenting claims experience.  See more here.

There’s no area where that’s more true than health care fraud.  For example, on Thursday, AP reported on the U.S. Justice Dept.'s announcement of another big health care fraud settlement, specifically,

Boehringer Ingelheim Pharmaceuticals Inc. will pay $95 million to settle allegations that the company promoted three drugs for uses that were not medically accepted.… Thursday's announcement is the latest in a series of settlements with pharmaceutical companies engaging in so-called off-label marketing. In the law enforcement initiative's biggest case, GlaxoSmithKline agreed to pay $3 billion and pleaded guilty to promoting two popular drugs for unapproved uses and to failing to disclose important safety information on a third.

See more here.

Also this week,

The owner of a Miami health care agency was sentenced on Oct. 23, 2012 to 37 months in prison for his participation in a $60 million home health Medicare fraud scheme … Rodolfo Nieto, Jr., 40, of Miami …was the owner and operator of Ronat Home Health Care Inc. According to court documents… from approximately January 2006 to approximately November 2009, Nieto accepted kickbacks in return for recruiting Medicare beneficiaries to be placed at Nany Home Health Inc., a Miami home health agency that purported to provide home health care and physical therapy services to eligible Medicare beneficiaries. The owners and operators of Nany paid Nieto kickbacks in return for allowing Nany to bill the Medicare program on behalf of the patients Nieto had recruited through Ronat. Specifically, as part of the scheme, Nany billed Medicare for home health services purportedly provided by Ronat.

Joining the crowd, “A Dover [DE] psychiatrist who was accused of improperly prescribing painkillers and defrauding the state’s Medicaid program admitted guilt today and was fined and sentenced to a year in prison."

It never seems to stop.  In fact, that was the message of a Today Show segment today, finding that, "Federal agents arrest a health care fraudster nearly every day, charging close to 1,500 people last year alone.”  In many cases, these crooks are billing Medicare for services never provided, and “victims are elderly and disadvantaged.”

If you see Medicare fraud, HHS is asking you to call its tip line: 1 800 hhs tips.  I would image a good tip might be a doctor who bills Medicare for tests that are not "medically indicated or for the health of the patient." They like to call such tests “defensive medicine.” Actually, it’s fraud.  

That number again? 1 800 hhs tips. 

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Let’s Stay Focused - Reduce Medical Malpractice

There’s suddenly been a lot of scary debt-reduction talk about Social Security and Medicare cuts.  This is news.  As the New York Times notes in an editorial today, “Older Americans, a potent voting bloc, have made clear that they won’t stand for serious changes in Medicare.”  What’s not news, however, are the ongoing attacks on Medicaid because, as the paper also notes, “Medicaid … provides health insurance for the most vulnerable, who have far less political clout.” 

The Times argues for sensible Medicaid savings, noting “a greater effort could be made to rein in malpractice costs.”  We’re gonna take them at their word, that they do actually mean malpractice costs (and not as some states have interpreted this, immunity for unsafe hospitals and incompetent doctors.)  The cost of malpractice remains a huge drain on our health care system.  Let’s take a look at a few facts:

Medical errors occur in one-third of hospital admissions, as much as ten times more common than previously estimated. 

In 2006, medical mistakes contributed to up to 6.1 million injuries and 187,135 deaths in the United States.  Lost lives and disabilities caused by medical error cost between $393 billion and $958 billion in 2006, equivalent to 18-45% of total US health-care spending in that year. “For every dollar that was spent in the health care system, about 18 to 45 cents of that dollar went to hurting someone,” explained co-author Pamela Villarreal in an April 7, 2011 briefing.

According to a November 2010 study by the Office of Inspector General of the U.S. Department of Health and Human Services, about 1 in 7 hospital patients experience a medical error, 44 percent of which are preventable. These errors cost Medicare $4.4 billion a year.  Moreover, “These Medicare cost estimates do not include additional costs required for follow-up care after the sample hospitalizations.” 

Meanwhile, according to the National Center for State Courts, medical malpractice claims are in steep decline, down 15 percent from 1999 to 2008. The NCSC says rarely does a medical malpractice caseload exceed a few hundred cases in any one state in one year. 

Oh, and if people think the answer to any of this is to wipe out the right to trial by jury and substitute an administrative system or “health court” to resolve these cases, take a look at the enormous costs and patient safety disasters in Sweden and New Zealand, which have administrative systems like this. (New CJ&D study here.)

Let’s stay focused people!  We need to reduce the epidemic of malpractice in this country, not the legal rights of people who suffer costly preventable errors through no fault of their own.

Drug Company Triggers Migraines and Not Much Relief

Here is how the Mayo clinic describes migraine headaches:

A migraine headache can cause intense throbbing or pulsing in one area of the head and is commonly accompanied by nausea, vomiting, and extreme sensitivity to light and sound. Migraine attacks can cause significant pain for hours to days and be so severe that all you can think about is finding a dark, quiet place to lie down.

Put it this way.  Migraine sufferers don’t need any more grief in their lives.  But it turns out, one pharmaceutical company, which should be figuring out how to help these folks, decided to make things worse for them by lying about a treatment that never worked, just so they could cash in on the migraine market.

Yesterday, the U.S. subsidiary of Belgian manufacturer UCB, which manufactures the epilepsy treatment Keppra, agreed "to pay more than $34 million for marketing the medication to treat migraine headaches in violation of U.S. drug laws.”  It also pleaded guilty “to a misdemeanor in connection with the misbranding. … The federal government will get $15.8 million of the civil settlement and nearly $10 million will go to state Medicaid programs.”  Writes the New York Times, “The case is among scores of whistle-blower complaints that the Justice Department has brought in recent years against pharmaceutical companies for illegal marketing.”

Wanna know what they did?

UCB prepared business plans that recognized the market for off-label uses of Kempra “offered a much higher sales potential than the epilepsy market,” the document states. At the time, UCB was being outspent by competitors who were aggressively pursuing off-label business, according to prosecutors.

UCB’s marketing included sponsorship of doctor-paid “studies,” posters, publications and oral presentations about the supposed benefits of using Keppra to treat migraines. Prosecutors said UCB failed to disclose that a 2000 study showed that Keppra was not effective in preventing migraine….

“UCB put its pursuit of profits ahead of its obligations to patients,” Ronald C. Machen Jr., U.S. attorney for the District of Columbia, said in an e-mailed statement. “Today’s guilty plea and UCB’s $34 million payout should remind drug companies that try to cleverly design off-label marketing schemes that we will not allow them to compromise patient safety.”

Really?  A misdemeanor plea will do that?  Paying a $34 million penalty, when the company made $1.37 billion in sales last year from this drug alone? 

Excuse my cynicism, but I think a little more “deterrence” may be needed here.  Any defrauded migraine sufferers out there?

Attention Medicare Auditors: Doctors Admit Fraud And Call It Defensive Medicine!

We thought we’d add to today’s jaw-dropping news with little tidbit from the world of medical malpractice. 

As has been noted, doctors who bill Medicare or Medicaid for tests and procedures done for personal purposes as opposed to what are medically necessary for patients, are committing fraud under federal and state Medicare/Medicaid programs.  The law is so clear about this, that when this issue came up not once but twice at Congressional hearings this year, the doctors who first testified to performing unnecessary tests essentially wound up denying it when Members of Congress asked if they billed Medicare for them.   Woops!  (Make sure you check out the exchange between Troy M. Tippetts, MD and Rep. Jan Schakowsky (D - IL) when the transcript for this hearing becomes available.  It was a beautiful thing.) 

Anyway, low and behold, we were checking out the comments generated by this Huffington Post blog post by Center for Justice & Democracy Executive Director Joanne Doroshow, when we noticed something kinda stunning - physician commentators actually admitting not only that they routinely ordered unnecessary tests, but also that they knew precisely how to “outsmart” Medicare auditors so they wouldn’t get caught!

Here’s one from someone who calls him/herself “Boston Doc":

Today I requested additional consult ($300) and several additional tests ($247). This is of no benefit to the patient.… I can always prove in the court of law that the consult was necessary, even though I personally think it was not.

Second comment from “Boston Doc”:

No Medicare audit will ever find me fraudulent, because I know my field and my billing better than any Medicare audit. I AM THE EXPERT. I can justify any of my actions as 'reasonable and necessary', even if I know damn well that they are only necessary to me to make myself lawyer-proof.

“No death panels” defended “Boston Doc”:

A doctor could order ANY test to look for ANY condition that can cause chest pain-V/Q scan, CT scan, EKG, cardiac enzymes, O2 sat, etc etc-and could justify them all easily.

 "Boston Doc" again:

Anybody who walks into ER with even the most trifle complaint could have a million dollar workup ordered. …  In my specialty, I could triplicate cost of pathology diagnosis, and justify this with multiple publications and expert opinions.

“No death panels” continued:

How can a lawsuit-fearing physician be certain acid reflux might not be masking a pulmonary embolism or a pneumothorax, an esophagotracheal fistula, heart attack, aneurysm, cardiac tamponade, pericarditis etc etc.?  Well, he can't. So he's gonna go right on testing. And if Medicare questions any of it, he's gonna say, “Hey, the patient was having chest pain.” And the auditors are going to have an early lunch that day.

(I don’t know about you, but I’ve got acid reflux and my doctor ordered Nexium.)

There goes that “God Complex” thing again. I know they may think they are above the law, but turns out, they’re not!  So to all the Medicare auditors out there, you are welcome.  Lets get some of that money back!

How Hospital Lobbyists and Execs Can Get Carte Blanche To Rewrite Your State’s Civil Justice System!

Here is our latest “How To of the Day” submission to WikiHow:

If you are a wealthy hospital executive or lobbyist and want to do something extra special for your members, like protect them when they kill or injure children, things may be looking up for you in states where the GOP has taken over.  But what about a State like New York, where the legislature (or at least part of it) actually cares about protecting the rights of the sick and injured and ensuring patient safety?  This is not so easy!  But get ready, cause there’s a solution:

Steps

1. Tell your Governor that you want to help him or her reform Medicaid.  Then, get a bunch of your members onto a Task Force that he creates.  It helps a great deal if one of those in your group is best friends with the Governor.  It helps even more if you keep consumer or patient safety advocates off the Task Force, and anyone who thinks it might be important to protect the judicial branch of government from your influence peddling and interference.

2. Once on the Task Force, come up with proposals (especially things that you've been unable to do legislatively ) to drastically limits patients’ legal rights, including brutal “caps” on non-economic damages and a birth injury fund that limits the rights of brain-damaged babies and their families. You can do this even though such proposals would increase Medicaid costs, and were shot down during earlier Task Force’s.   But unlike your new Task Force, those earlier ones may have had members with expertise on civil justice issues or disagreed with your desire to provide a financial windfall for your members.  

3. Keep the details of your proposals under strict lock and key so no one, like your opponents but especially the legislature, ever sees them.  This will keep any outside experts from vetting your proposals, yet will permit you to “score” them privately using fabricated data, allowing you to come up with an absurdly-high “savings” number that everyone knows is ridiculous.

4. Make sure you are clear with the Governor that your support for his other Medicaid cuts is contingent upon his agreeing to wipe out patients' legal rights, and that it must be done through the budget process so it’s impossible for the legislature to pull these proposal out of the larger budget package. 

5.  Have your Task Force vote out these proposals at its first public meeting ever, but where no public comment is allowed, no substantive discussions take place, and no notice given that a vote would even happen.

6. You’re almost done.  Unless people start to wake up, and fast.

New York’s Medicaid Trouble

On July 30, 1965, when President Johnson signed the Social Security Act establishing Medicare and Medicaid, he spoke about “planting the seeds of compassion and duty which have today flowered into care for the sick and serenity for the fearful.” 

But today, most of the discussion is about how to save money on the backs of the sick and fearful.  For example, recently we covered a new idea being bounced around Florida to let doctors off the hook for committing malpractice on the poor, i.e., Medicaid patients. 

Another thing happening is a huge federal Medicaid fraud lawsuit just filed by the federal government (here’s the complaint ) against New York City’s Medicaid program for:

"[C]heat[ing] the federal government after a 2006 change in Medicaid rules relieved the city of having to contribute to the cost of the round-the-clock care. In many cases, the government said, the city enrolled patients who did not need such services. And in some cases, the lawsuit alleged, the city approved in-home care for people who needed more intensive services, like nursing home care, but which would have required the city to contribute to the cost.

The lawsuit, which followed a whistle-blower’s complaint, also said the city ignored rules requiring recommendations from doctors, nurses and social workers before patients could be enrolled in the home care program, or sometimes rejected doctors’ findings that the services were not needed. The lawsuit did not say exactly how much overbilling the federal government believed had occurred, but it asked the court to award it triple damages.

Home care, which provides aides who help with housecleaning, dressing, bathing, shopping and other personal needs, is one of the fastest growing services covered by Medicaid, the joint federal-state health care insurance program for the poor."

So the feds want their money back and they want more people thrown into expensive nursing homes.  We’ll leave that discussion for another time, but for now it’s clear that reforming the system is a high priority of New York Governor Andrew Cuomo.  Unfortunately, the way he’s going about it is highly disturbing.

The Wall Street Journal reported recently that:

Cuomo has put union leaders and hospital lobbyists in charge of a "Medicaid redesign team" and asked them to propose ways to cut spending by a target amount by April 1. 

"The governor was very clear in talking about not allowing special interests to dominate. But then he appointed a task force for Medicaid with the top special interests controlling it." said Judy Wessler, director of the Commission on the Public's Health System, a patient-advocacy group based in Manhattan. "This is why we're in this crisis, and he's just repeating it.

While Cuomo officials then “released an expanded list of about two-dozen members, including Medicaid Matters, a coalition of patient groups, and several city and local health officials, … Elizabeth Swain, head of the Community Health Care Association of New York State and a member of Mr. Cuomo's Medicaid team, said she was taking a wait-and-see approach. In an interview Thursday, she said she understood the governor's logic of putting 'key decision-makers in the same place as those who must change the way they see the world.'  But she added: 'I certainly understand why consumer and advocate organizations are offended. There wasn't even a tip of the hat to the ultimate recipient of these services.'"

What’s more, on Friday the Medicaid Redesign Team met for the first time - in secret! 

“How odd,” kindly wrote the Albany Times-Union, “just a week into an administration we thought was so committed to open government and changing the political culture that prevails at the Capitol.… What is achieved by doing the public’s business in private? … Where’s the harm in letting citizens — those who use Medicaid and those who pay for it — hear the many special interests on the panel debate why this service must go or that one must stay? … Take careful note of the concerns raised already by Lara Kassel, coordinator of Medicaid Matters, the one consumer representative on the panel. She fears the repercussions of shutting out the public."

We can only imagine what Lyndon Johnson would be thinking now....