What happens when a whistleblower uses confidential medical records from work to prove that her employer is making false claims to Medicare or another government healthcare program? The answer depends on what the whistleblower does with the information. The Health Insurance Portability and Accountability Act (HIPAA) provides that private medical records and information may be disclosed if the following criteria are met: First, you must be a “workforce member” or a “business associate” of the employer. A “workforce member” includes an employee, volunteer, trainee, or other person under the control of the employer, whether or not you are paid. A “business associate” includes independent contractors, consultants, and other non-employees who provide legal, actuarial, accounting, consulting, data aggregation, management, administrative, accreditation, or financial services involving the use or disclosure of protected health information. Second, you must have a good faith belief that the employer “has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by [the employer] potentially endangers one or more patients, workers, or the public.” Third, the disclosure may only be made to an appropriate person. Appropriate persons are either: (A) A health oversight agency or public health authority authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the employer or to an appropriate health care accreditation organization for the purpose of reporting the allegation of failure to meet professional standards or misconduct by the employer; or (B) An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining the legal options of the workforce member or business associate with regard to the unlawful, unprofessional or potentially dangerous conduct. If you have information that false claims are being made to Medicare, Medicaid, or another government program, you should consult with an experienced lawyer immediately. To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules.
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The Federal Trade Commission (FTC) has issued a proposed order that will allow up to 10 cardiologists employed by Renown Health to avoid the “non-compete” restrictions in their employment contracts. The proposed order will settle allegations that the non-compete provisions unlawfully restrain competition in violation of the antitrust laws. Renown Health is the largest provider of acute care hospital services in northern Nevada. After it acquired two competing medical groups – Sierra Nevada Cardiology Associates (SNCA) and Reno Heart Physicians (RHP) – Renown Health became the employer of virtually all the cardiologists in the Reno area. The cardiologists’ employment contracts with their former employers included "non-compete" provisions. When those employment contracts were assigned to Renown Health as part of the acquisitions, they effectively prevented the cardiologists from joining medical practices that competed with Renown Health. The FTC issued an administrative complaint against Renown Health alleging that continued enforcement of the non-compete provisions would violate the federal antitrust laws. According to the FTC's complaint, Renown Health's acquisitions created a highly concentrated market for the provision of adult cardiology services in the Reno area. The complaint alleged that the consolidation of the competing practices into a single cardiology group would eliminate competition based on price, quality, and other terms. In addition, according to the complaint, the consolidation would increase the bargaining power that Renown Health has with insurers, and this may lead to higher prices for adult cardiology services in the Reno area. The proposed order will temporarily suspend the non-compete provisions currently in place with the cardiologists. Up to 10 cardiologists will be released from the non-compete restrictions, provided that they intend to continue to practice in the Reno area for at least one year and other conditions are met. If fewer than six cardiologists have decided to leave Renown Health after 60 days, then Renown Health must continue to suspend the non-compete provisions until at least six cardiologists have accepted offers with competing practices in the Reno area. At any time, Renown Health may ask the FTC to end the release order if 10 of its cardiologists have left for competing practices. Non-compete and non-solicitation agreements are generally enforceable unless they are unreasonable in scope or duration, or they unreasonably restrain competition in violation of the antitrust laws. If you are facing a dispute over a non-compete or non-solicitation clause, you should consult with an experienced lawyer immediately to protect your rights. To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. Some people are under the mistaken impression that a great trial lawyer must be as mean as a junkyard dog. In fact, the most successful trial lawyers tend to be more like the amiable Ben Matlock, the unflappable Perry Mason, or the irreverently humorous Horace Rumpole. By way of example, this post will describe some of the greatest trial lawyers of our generation. Each one is completely different than the other in terms of style, but they all have three traits in common. They always have a better understanding of the facts and evidence than any other person in the courtroom. They are always in control. And while they are often passionate, stern and indignant, they are never mean. The Folksy Cowboy When Gerry Spence walked into federal court in Manhattan to defend Imelda Marcos, he wore his trademark buckskin jacket with leather tassels and, of course, his ten gallon hat. Eleven weeks later, his client heard the jury foreman say “Not Guilty” to every count against her. Spence’s cross-examinations were striking in their complexity. He was at times folksy and at other times stern. He used humor and often ridicule to make a point. He was always persistent. But he was never mean to a witness. In fact, when one prosecution witness became jittery under cross-examination, Spence assured him that, “We’re not trying to embarrass you.” The witness seemed to sigh in relief. According to Spence, he cross-examines witnesses the same way he breaks horses: “If you take a horse and say, 'Come this way,' the horse will balk. So you just keep pulling on him gently. And he'll try to run away from my questions. But I keep coming back until he answers. Then I pat him on the side of the neck. And I pull him again. And once you've got him leading, you get him to admit things that are important to your case.” Gerry Spence has never lost a criminal trial, and he has not lost a civil trial since 1969. The Grand Master With his standard uniform of a blue suit, buttoned-down shirt, and blue knit tie, David Boies is the exact opposite of Gerry Spence when it comes to style and flamboyance. Yet, he is almost in the same league when to comes to being a great trial lawyer. Boies’ forte is setting subtle and complex traps for witnesses. Had he not become a trial lawyer, he might have been a grand master in chess. In fact, rumor has it that he can hold his own with the best professional bridge players. In his now famous cross-examination of Bill Gates in the Microsoft antitrust trial, Boies never lost his cool or accused the whiz kid billionaire of being a liar. Instead, every time Gates claimed not to know what happened or not to remember being involved in a decision, Boies simply took out an email or document contradicting what Gates had just said. Pretty soon, Gates was rocking back and forth in his seat, visibly uncomfortable that he could not get away with saying “I don’t know” or “I don’t remember.” Nothing Gates said seemed to matter anymore. He looked like he was not telling the truth. The LA Lawyer With his well-tailored designer suits, Johnnie Cochran looked like the successful Los Angeles lawyer he was. He had a distinct sense of style that included an ability to connect with an urban jury, yet he was in many ways cut from the same cloth as Spence and Boies. We all remember how Cochran ridiculed the prosecution’s case against O.J. Simpson by donning a black knit cap and telling the jury, “If the glove doesn’t fit, you must acquit.” That small piece of drama, however, tends to overshadow the incredibly substantive aspects of his closing argument. Watching a video of that closing argument today, it is striking how fact-intensive and analytical Cochran is while speaking with the jury. He methodically walks the jury through the evidence. He maintains a confident, matter-of fact tone even when he tells the jury that Mark Furman and other prosecution witnesses lied to them. Then he goes through a list of 15 questions about the evidence that he says raise reasonable doubt about his client's guilt. At the end of the day, Cochran backed up his theatrics with substance. Which is exactly what every great trial lawyer does, regardless of their own personal style. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. New York State will withhold payments under Medicaid when its Department of Health has determined or has been notified that a provider is the subject of a pending investigation into “a credible allegation of fraud.” Amended regulations providing for withholding of payment were adopted to comply with requirements in the Patient Protection and Affordable Care Act of 2010. They became effective on August 22, 2012. Under the amended regulations, the state “must” withhold payments when it has determined or has been notified that a provider is the subject of a pending investigation of a credible allegation of fraud, unless the department finds good cause not to withhold payments. A credible allegation of fraud is an allegation that has indicia of reliability and has been verified by the Department of Health, the Medicaid fraud control unit, another state agency, or a law enforcement organization. The amended regulations also permit, but do not require, the state to withhold payments when it has “determined that a provider has abused the program or has committed an unacceptable practice.” An unacceptable practice does not always rise to the level of being a credible allegation of fraud. In such cases, the state may exercise its discretion and impose a withholding against a provider where it has been determined, based on preliminary findings, that the provider has committed an unacceptable practice. The withholding of payments may continue for only 90 days unless further determinations are made. The Department of Health also has discretion, even in the case of mandatory withholding, to continue making payments. If you are facing allegations of Medicaid fraud or unacceptable practices, you should consult with an experienced lawyer immediately to protect your rights.To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. How much detail must a whistleblower provide to support a qui tam lawsuit under the False Claims Act? According to a federal court in Florida, the answer depends on whether the whistleblower is an insider with direct, personal knowledge of the facts. In a recent case, two whistleblowers alleged that their employer made false claims to Medicare and other government healthcare programs by using billing code modifiers to increase reimbursement rates, by submitting claims for 5,000mcg doses of a drug when only 1,000mcg doses were actually used, and by billing for computer aided detection software analysis of mammograms when the software was not in fact used. The defendants moved to dismiss the complaint on the ground that it failed to plead the alleged fraud “with particularity” as required by Federal Rule of Civil Procedure 9(b). The court denied the motion. It ruled that company insiders can state a claim under the False Claims Act if their complaint describes “the alleged fraudulent acts, why they were fraudulent, when they occurred, and who engaged in them.” Key to the court’s decision was the fact that the whistleblowers were company insiders who provided “a factual basis for their personal knowledge of the events at issue.” That factual basis included descriptions of meetings they attended and discussions with the defendant regarding the practices at issue, defendant’s knowledge of the practices, and defendant’s failure to take corrective action. The court was also impressed with the whistleblowers’ direct access to the events at issue. One whistleblower was a Health Information Management coding professional employed by the defendant for seven years. The other was a physician with staff privileges at one of defendant’s hospitals for 14 years. One caveat in the case is: The government declined to intervene in this case, forcing the whistleblowers and their counsel to prosecute the action on their own. Perhaps if the whistleblowers had provided more details backed up with documentary evidence, they could have convinced the government to intervene. The bottom line remains: It is always best to gather as much detail and documentary evidence as possible, even if the whistleblower is a true company insider. John Howley New York, New York Source: United States ex rel. Dittmann v. Adventist Health Sys./Sunbelt, Inc., No. 6:10-cv-1062-Orl-28GJK (M.D. Fla. July 30, 2012). The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. The government is paying large rewards to parents and employees who blow the whistle on schools that falsely report the number of students eligible for free or reduced cost lunch programs. More than just free lunch money is at stake. By falsely reporting the number of students eligible for free lunches, schools receive more grant money under other government programs as well. When an honest employee or parent helps the government recover those over-payments under the False Claims Act, they are entitled to a reward of between 15% and 30% of the amount the government recovers. The rewards are often hundreds of thousands of dollars – and sometimes millions of dollars False claims by schools and school districts can take many forms. Outright fraud is not required. It is enough if the school officials know the information being submitted is not true. For example, if parents are under-reporting their incomes on applications for free lunch programs, and school officials know that the information is not true, then they can be found in violation of the False Claims Act. Other types of false claims involving school lunch programs include:
If you have information that any of this type of conduct is happening at a school or school district, then you should consult with an experienced lawyer immediately. To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. Federal investigators are increasing their investigations of physicians who pay or receive kickbacks for patient referrals. The latest target is Dr. Jack L. Baker, a prominent Houston radiologist, who has agreed to pay $650,000 to settle claims that he violated the federal Anti-Kickback Statute, Stark Statute, and False Claims Act. Under the Stark Statute and the Anti Kickback Statute, Medicare providers are prohibited from billing Medicare for referrals from doctors with whom the providers have a financial relationship, unless that relationship falls within certain exceptions. The government often looks past the form of the financial relationship and considers it suspect if, for example, the amount of money exchanged is tied to the number or value of referrals. In the case of Dr. Baker, the government alleged that he entered into improper financial relationships with up to 17 physicians to induce them to refer patients to a diagnostic and imaging center he owned and operated. The prohibited financial relationships included: (1) personal services contracts and medical directorships which took into account the value of referrals from the medical directors; and (2) contracts to pay the salaries of employees in physicians’ offices, which also took into account the value of referrals from those physicians. The settlement resolves allegations made in a qui tam or whistleblower lawsuit filed in federal court by Drs. Philip Blum and David Spinks, practicing physicians who refer patients to imaging centers. Under the False Claims Act, private citizens can bring suit on behalf of the government and share in any amounts that are obtained through that legal action. In this case, Drs. Blum and Spinks will receive 20% of the proceeds of the settlement. As part of the settlement agreement, Dr. Baker has also agreed to a voluntary suspension from the Medicare and Medicaid programs for a period of six years. Under this provision of the settlement agreement, Dr. Baker will not be allowed to bill these programs for treating Medicare and Medicaid beneficiaries. John Howley New York, New York Sources: The Anti-Kickback Statute, 42 USC 1320a-7b; the Stark Law, 42 USC 1395nn; Press Release for the U.S. Attorney for the Southern District of Texas. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules A former employee of an ambulance company will be paid more than $1 million for blowing the whistle on his employer’s submission of false claims to Medicare. The payment is part of a $5,426,000 settlement by Rural/Metro Ambulance to resolve allegations that the company billed Medicare for ambulance services that were never provided or were medically unnecessary. Under the False Claims Act, an individual whistleblower can file a lawsuit under seal (that is, in secret) on behalf of the government when they have evidence of false claims being made to Medicare, Medicaid, and other government programs. The government will review the case and decide whether to join it. If the whistleblower helps the government win the lawsuit, then the whistleblower is entitled to receive between 15% and 30% of the recovery. By law, the recovery is three-times the amount that was falsely obtained from the government. According to the allegations in this case, the ambulance company sought Medicare reimbursement for non-emergency transportation of Medicare beneficiaries to receive dialysis services. Medicare's regulations cover the reimbursement of certain ambulance services only if the patient's medical condition dictates that other means of transportation are not advised. This generally means that ambulance transportation is appropriate if the patient is bed-confined or if the patient's medical condition, regardless of bed confinement, is such that transportation by ambulance is medically required. The complaint alleged that the ambulance company falsely represented that transported patients were either bed-confined or that transportation by ambulance was medically required. Many of the patients, however, were neither bed-confined nor needed to be moved on stretchers, and did not require ambulance transportation or qualify for ambulance transport under the applicable Medicare requirements. According to the Department of Justice, more than $22 billion of taxpayer funds have been recovered under the False Claims Act, largely because of the efforts of whistleblowers and their attorneys. These cases are brought on a "contingency fee" basis, which means that the whistleblower does not pay any legal fees unless and until the government pays them their reward. If you have information that an individual or company is submitting false claims to Medicare, Medicaid, or another government program, then you should consult with an experienced lawyer immediately. To schedule a free and confidential consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley (For more information about whistleblower rewards in ambulance fraud cases, click here). The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. A court in California found that it was “procedurally unconscionable” for an employer to bury an arbitration clause on page 42 of an employee handbook, but held that the employee was stuck with it anyway. Lorena Nelson sued her employer for failure to pay wages on time, maintain payroll records, pay overtime, and a host of other systemic failures related to the basic right of employees to be paid for their work. She brought the suit as a class action on behalf of herself and her similarly situated co-workers. Lorena’s employer argued that she had waived her constitutional and statutory rights to pursue her claims in court when she signed a form acknowledging that she had received her company’s employee handbook. Buried on page 42 of that handbook was a statement that any claim she may have “arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with” her employer would have to be brought in an arbitration. The court found that the arbitration provision was “procedurally unconscionable” because it was hidden in incomprehensible language in small font at the very end of a 43 page document under a heading that did not refer to arbitration at all. In the court’s words: “Several factors support a finding [the employer’s] arbitration agreement is procedurally unconscionable. It was part of a preprinted form agreement drafted by [the employer] that all [employees] were required to sign on a take-it-or-leave-it basis. The arbitration clause was located on the last two pages of a 43-page handbook. While the top of page 42 contains a highlighted prominent title ―TEAM MEMBER ACKNOWLEDGMENT AND AGREEMENT, the title makes no reference to arbitration and the arbitration language itself appears in a small font not set off in any way to stand out from the rest of the agreement or handbook. Moreover, unless [the employee] happened to be conversant with the rules of pleading in the Code of Civil Procedure, the law and procedure applicable to appellate review, and the rules for the disqualification of superior court judges, the terms and rules of the arbitration referenced in the clause would have been beyond her comprehension.” So why did the court find that the employee was bound by a contract that was secured by procedurally unconscionable trickery? Because it felt bound by precedent that required the employee to demonstrate “both procedural and substantive unconscionability.” On the issue of “substantive unconscionability,” the court held that the arbitration agreement was fair and balanced. It provided that the arbitrator would be a retired superior court judge, that he would have to provide a written reasoned opinion, and that either party could appeal to a second arbitrator. The court then held that the arbitration clause, as written by the employer, precluded the employee from pursuing any class action claims in the arbitration. If she wanted to arbitrate her claim, she would have to do so alone. The court noted that a different outcome might have been possible, but the employee in this case did not come forward with the necessary proof. Waivers of an employee’s right to bring a class action “can be held unenforceable,” the court wrote, but only if the employee demonstrates “that (1) potential individual recoveries are small; (2) there is a risk of employer retaliation; (3) absent class members are unaware of their rights; and (4) as a practical matter, only a class action can effectively compel employer overtime law compliance.” The employee did not prove her case, the court held. She submitted only “a one and a half page declaration solely addressing facts relevant to procedural unconscionability. She submitted no evidence as to any of the factors” relevant to whether the class action waiver was unenforceable. Don't lose your rights because you failed to provide the necessary proof. If you have a dispute with your employer, then you should consult with an experienced lawyer immediately. To schedule a free initial consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. Failing to Return Medicare or Medicaid Overpayments Can Result in Huge False Claims Act Liabilities8/6/2012 The Patient Protection and Affordable Care Act requires that overpayments from Medicare or Medicaid be reported and returned to the government within 60 days after the overpayment is identified. Overpayments that are not timely reported and returned will be treated as false claims under the False Claims Act, which could result in liability for three times the amount of the overpayment plus penalties. The Centers for Medicare and Medicaid Services (CMS) has published proposed rules that would consider an overpayment to have been “identified” if the provider has actual knowledge of the overpayment or acts in reckless disregard or deliberate ignorance of the overpayment. Reckless disregard or deliberate ignorance would include a failure to make a “reasonable inquiry” after a significant increase in Medicare revenue when there is no apparent reason for the increase. Other examples of when an overpayment will be considered “identified” include when a provider of services or supplier:
Failure to timely report and return overpayments could result in enormous damages and penalties. The proposed rules would allow the government to recover overpayments that were not timely reported and returned within the prior 10 years. Under the False Claims Act, a provider would be liable for three times the amount of the overpayments plus a penalty of $11,000 per claim. Whistleblowers who help the government recover overpayments by commencing qui tam actions can be paid up to 30% of the amount recovered by the government, with an average payout of approximately 17% of the amount recovered. If you believe that your employer is failing to return overpayments to Medicare, Medicaid, or another government health care program, then you should consult with an experienced lawyer immediately. To schedule a free initial consultation by telephone or in person, call my office today at (917) 652-6504 or click here to communicate with me via email. John Howley New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. |
John Howley, Esq.
350 Fifth Avenue 59FL New York, NY 10118 (212) 601-2728 |