Washington, DCIt’s not the users. It’s the doctors. In a November 22 interview with lawyersandsettlements.com, attorney Jason Brown told a strange two-track story where healthcare whistleblower lawsuits meet the opioid epidemic. It’s not pretty. He believes that 2018-2019 will bring a proliferation of whistleblower lawsuits that target the real villains – the doctors and the healthcare system within which they operate.
“Everybody does it.” He tells stories of healthcare workers who do not realize the conduct is illegal and of doctors who bus patients into hotels where they can be dosed with drugs. As Brown elaborated, “ The doctors can then continue to fraudulently bill Medicare and Medicaid for overprescribed opioids and then there are the kickbacks. Doctors and facilities are kicking back money to people who find them addicted patients, or patients that are candidates for unnecessary prescriptions. The kickbacks don’t stop there, as even the hotels reportedly pay kickbacks to the doctors.” No one is wiser until something happens.
The past summer, the Department of Justice and the Department of Health and Human Services announced the largest ever health care fraud enforcement action by the Medicare Fraud Strike Force. It involved 412 defendants in 41 federal districts, including 115 doctors, nurses and other licensed medical professionals. They were charged with participating in health care fraud schemes involving approximately $1.3 billion in false billings. Of those charged, more than 120 defendants, including doctors, were cited for their roles in prescribing and distributing opioids and other dangerous narcotics.
Set this against the long and deliberatively slow – year’s slow – legal process through which individuals with first-hand knowledge about what is going on can alert legal authorities. The False Claims Act operates through a strange indirect logic, offering the possibility of a reward to those who report false claims, including Medicare fraud, against the government. Many FCA plaintiffs are principally motivated, not by the desire for a reward, but by shock at the mistreatment and overprescribing of patients.
Most of these lawsuits remain sealed for years while under investigation. The government may then choose whether to intervene or not. Intervention, which increases the chance of success, occurs in only about one fifth of the cases. In addition, the whistleblower must be represented by an attorney. Although a whistleblower may share in a percentage of the ultimate recovery for fraud against the government, he or she also risks losing the job and perhaps other forms of retaliation during the process. No one would call this the way to make a living, much less a level playing field.
Will enforcement action increase? Jason Brown thinks so. Yet those in the best position to assist in the effort remain strangely hobbled, sometimes even devaluing their own immediate experience of healthcare fraud and mistreatment of patients.
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