How To Report Questionable Practices in Physical and Occupational Therapy.
So let’s get right down to it!
If you have not read Part 1 of this series, please do so here. It gives some background into the terrible state of fraud, waste and abuse in physical any occupational therapy. It also gives some good reason why we all need to help fight this (including getting paid to be a whistle blower $-) . This article is all about the process of actually reporting the suspect activity.
To avoid any wrongful information or advice on how reporting healthcare fraud, waste and abuse works I went directly to legal counsel. I asked for help from an attorney. I will admit I have a fear of attorneys. In my experience, attorneys have always equaled $$$$. This recent pleasant experience has started to change my mind.
What follows are a series of 16 questions of my own or found searching current rehab social media groups, about rehab fraud, waste and abuse reporting; AND the response for each question from a most awesome lawyer that works medical fraud cases. I am giving you the responses exactly as he wrote them. So without further ado, I give you . . .
Brian Markovitz, Attorney at Law (https://www.jgllaw.com/attorneys/brian-j-markovitz)
Shareholder at Joseph, Greenwald and Laake PA
Greenbelt, Maryland (D.C Area)
On LinkedIn: https://www.linkedin.com/in/brianmarkovitzattorney/
Note: Questions in bold, Brian’s answers in italics
Before I begin, many of these questions really require an attorney to go over the situation. In many of these situations, health care personnel should consult one who knows this area of the law or who is in your local area. Results may vary considerably depending on where you work and what the situation is.
1. To start, what are the different names/types of whistleblowing that should be reported in healthcare? What is Qui tam and how is that related?
The different types/names of “whistleblowing” depends on the requirements of the jurisdiction. Many states and localities have a number of whistleblower protection statutes and reporting requirements that are unique for that jurisdiction for health care personnel.
At the federal level, there is a law called the False Claims Act (FCA). A complaint filed under the FCA is known as a “qui tam,” which is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur. This means, “He who sues in this matter for the king as well as for himself.” These are lawsuits brought by a private citizen to recover taxpayer money taken illegally from the government, which is the reference to “the king” in the latin phrase because it is actually a claim for the government. Many states and localities also have similar FCA statutes for their respective funds.
2. What actions can be reported? Just fraud? Or anything that seems “not right”, such as waste, abuse or anything of a questionable ethical nature?
Outright “fraud” is certainly reportable, but other actions can be reported. Fraud is a legal term that requires intentional taking of money inappropriately. However, the FCA does not require intent to defraud. A company or individual can be “deliberately indifferent” or show a “reckless disregard” for legal obligations while taking government funds and that also violates the FCA. So, waste and abuse can be violations and so can questionable ethical behavior. Concerned individuals should consult an attorney when they are not clear.
3. Who are the governing bodies that investigate and pass judgement on these kinds of cases? Will it depend on the type of offense and the stakeholders? (Medicare versus private health insurance, etc).
First, private insurance really has no governmental bodies for claims, except in a few limited jurisdiction such as California. You can report fraud or waste to private insurance companies but you may not be protected by law from retaliation if you do so. If a licensing issue is at stake, then you should report to whatever board oversees the applicable license.
The “governing bodies” are generally CMS and the Justice Department to investigate FCA healthcare claims. At the state and local level it is the IG for whatever agency handles Medicaid claims or other medical claims.
4. What are the primary guidelines available to help a clinician decide if something should be reported? Rules, statutes, laws, and/or our own clinical practice guidelines, etc?
Yes to all of the above, including CMS guidance. I would again tell the person to consult an attorney to help figure out if there is anything illegal before reporting it.
5. When we think there is something to report who all do we report it to? Do we start with an attorney like you? Should we also report to other agencies or governing bodies like police, OIG, etc?
Report to private attorney who handles whistleblower claims. Yes, I recommend always going to an attorney first. And the attorney can help the person decide if the police or OIG is the next step.
6. Can you give a list of the basic steps one would take to create and file a report?
The person should have documentation, if possible. Never copy any documents that you do not have access to in your normal course of your duties. But if you receive an email that shows illegal activity, print a hard copy. In addition to documents, you want to get a list together of witnesses, what they know, and their contact information. Then, go to an attorney that has a qui tam or whistleblower practice and he/she will create the report.
7. Due to EHR, passwords and network security it can be difficult to get copies of records. Some may not have access to printers or copiers; how do you recommend they gather needed information?
If you can’t print, then try to discreetly take a picture of information with a cell phone. But again, do not take pictures of any documents that you would not normally have access to as part of your job duties. For instance, you should not be going through files on a hard drive that are not part of your normal duties.
8. What kind of attorney should we look for help? Do they need to practice in the same state as the facility in question?
An attorney that does qui tam or whistleblower work is usually best. And, no they do not need to practice in the same state. They can always find local counsel for your case.
9. What if your company has a “compliance” department, should reports be made with them first? (or at all). If so, when do we know we can or should go beyond this department?
I generally do not recommend going to the compliance department before speaking with an attorney. Compliance departments exist to help the company only, and with rare exception, are not there to help the employee. Speak with an attorney first, and then make the decision whether to go to the compliance department with their help.
10. What kind of paper trail does one need to build before reporting? How much of a pattern needs to be demonstrated?
This is very case specific. One time is usually not enough but after that, it just depends.
11. Should there be any associated expense to the person/persons reporting a concern?
For a qui tam matter, there is a filing fee and a few other costs associated with the case such as copying. A general ballpark figure would be a few hundred dollars to file a qui tam. Qui tam lawyers, however, do these cases almost exclusively on a contingent basis so attorney’s fees should not be paid by the client.
12. What if I, as a clinician, had followed my administration’s unethical practices due to fear of losing my job, but I want to change and report. Could I be held liable and what possible protection might I have?
My experience is that the government has been very understanding in situations where people have been following the boss’s orders because they are scared of losing their jobs. The government generally wants the boss, not the people who work for the boss. While again, case by case, I generally think it is a good idea to get ahead of reporting illegal activity before someone else does to the authorities. If someone else reports the fraud first, then you would be on the wrong side of law and part of the fraudulent scheme and more likely to be pursued by the government.
13. I have co-workers that share my concerns, is it better to report as a group? Should each go through the same steps and then just report together? Or better to keep separate cases?
First step is to go to an attorney that has experience with whistleblowers. I would only go as a group if you can really trust the other people – meaning they are not just coworkers but friends. It also depends on how many co-workers. The more co-workers the less chance the reporting can be kept secret.
14. What if I don’t work for (or at) the facility in question but I do have access clinical documentation (such as an auditor, clinical reviewer, etc.) and I have concerns about practice patterns; can I still report concerns, and would I do it any differently?
The answer is yes. You can still report it and often should do so. You should do your job if you are an auditor and report it internally, but you also should strongly consider reporting to the authorities. Again, it is important to reach out to an attorney before making any decisions.
15. Any other cautions or tips to keep this anonymous from the facility being reported? I am afraid of repercussions or future problems . . .
FCA cases are kept under seal and protect the identity of the person for usually a couple of years. Hopefully, within that time, the whistleblower can get a new position or switch career paths if necessary. Unfortunately, there is retaliation. A good lawyer can assist a person in navigating those difficulties.
16. How is the best way for someone to get in touch with you to express a concern or start this process?
Call my office at 240-533-1207 or email me at firstname.lastname@example.org. My staff is very good about responding right away to screen potential cases and then I get back to the potential client very quickly.
Thank you very much for the opportunity!
Thank you so much for your time and responses Brian!
The information you have shared is very helpful and has changed the way I used to think about reporting fraud in skilled care. I would highly encourage anyone with questions about this to reach out to Brian. I found him to be very approachable and quick to respond. My guess is that he is very passionate about doing something to better healthcare for everyone.
Two additional resources to help you learn more about the steps in the complaint process and what types of information would be good to gather are the Office of the Inspector General and Medicare and Medicaid Services. They each have information about what types of things should be reported and what agencies address those concerns. I still recommend getting an attorney involved. We all know dealing with government and Medicare often involves long and complex processes. This is something you want to get right the first time and to be sure you doing things in a way that protects you:
Office of Inspector General, US Department of Health and Human Services. Things to know before filling a compliant
Center for Medicare and Medicaid Services Resource on reporting suspected fraud
Let us all work together to fight again those who only have their own greed at heart and get in the way of all of us who want what it best for our patients and the profession.