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The Shadow Government: The Government’s Multi-Billion-Dollar Giveaway of its Decision-Making Powers to Private Management Consultants, “Experts,” and Think Tanks

A book by GBB Legal’s Dan Guttman, Available Amazon Here

The Shadow Government book_Dan GuttmanIn the past two decades the federal budget has tripled. However, popular wisdom to the contrary, the number of full-time civil servants has remained relatively constant. How does the government manage? In keeping with the American ethos that private is better than public, a large part of the business of government has been contracted out to accounting firms, think tanks, management consultants, and industrial corporations like McKinsey and Co., Peat, Marwick, Mitchell, and Co., the Stanford Research Institute, the RAND Corporation, Booz, Allen, and Hamilton, Westinghouse, and the Brookings Institution, among many others. The contractors do not merely build hardware and carry out a myriad of mundane tasks. They increasingly perform the functions of government itself, albeit in the guise of private efficiency and disinterested expertise, without accountability to the public. They make and implement policy recommendations, staff and restructure government agencies, reorganize railroads and hospitals, and produce the findings that allocate the spending of the federal budget dollar.

What is their track record? How well is the public interest served by the burgeoning and costly private bureaucracy which government contracting has spawned? Is it proper to delegate public affairs to a shadow government of private, corporate, and governmental constituents? These are the questions at the core of this important study, which was prepared for Ralph Nader’s Center for Study of Responsive Law.

Available Amazon Here

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Federal prosecutors launch investigation of prominent surgeon who double-booked operations

By Jonathan Saltzman GLOBE STAFF OCTOBER 05, 2017

Federal prosecutors are investigating the billing practices of one of the nation’s highest-paid surgeons after a Spotlight Team report detailed that Dr. David B. Samadi ran two surgeries simultaneously on hundreds of occasions — a routine that colleagues said many patients did not know about.

Samadi, the chief of urology at Lenox Hill Hospital in Manhattan and a medical expert on Fox News, already is the focus of a state inquiry into how he handles his enormous caseload of prostate surgeries. Current and former Lenox Hill medical personnel say he typically relied on unsupervised residents who were still learning how to do surgery.

Now, the US attorney’s office in Manhattan is looking at Samadi, too. Federal law prohibits surgeons at teaching hospitals from billing Medicare for two simultaneous operations unless the doctor was present for all “critical parts.”

. . .

Reuben Guttman, a Washington, D.C., lawyer who has represented clients in federal cases alleging health-care fraud, said it was extraordinary for a prosecutor to disclose an open investigation.

The e-mail to the Globe, he said, was a “clear signal that the matter of concurrent surgeries is extremely material to the payment of Medicare and Medicaid funds.”

. . . .

read the full article here.

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Whistle-blower files suit over alleged double-booked surgeries

By Jonathan Saltzman and Todd Wallack – GLOBE STAFF JUNE 07, 2017

Orthopedic surgeons at Massachusetts General Hospital repeatedly kept patients waiting under anesthesia longer — sometimes more than an hour longer — than was medically necessary or safe, as they juggled two or even three simultaneous operations, according to a federal lawsuit that alleges frequent billing fraud at the prestigious hospital.

Dr. Lisa Wollman, a former anesthesiologist at Mass. General, alleges in the lawsuit that at least five surgeons endangered patients by regularly performing simultaneous surgeries. Wollman charges that the doctors also defrauded the government by submitting bills for surgeries in which they were not in the operating room for critical portions of procedures, leaving the work to unsupervised trainees.

Wollman said she witnessed surgeons performing simultaneous operations repeatedly from 2010 to 2015, when she left MGH for New England Baptist Hospital. She said hospital policy gave the doctors financial incentives to do more procedures, and they never told patients they would be going back and forth between operating rooms.

. . .

Wollman’s lead attorney, Reuben Guttman of Washington, D.C., argues that the doctors violated rules for two government health insurance programs, Medicare and Medicaid, which require surgeons to be present for all “critical portions” of an operation in order to get paid. If surgeons weren’t present and billed the insurers without making their role clear, it could constitute billing fraud, though the rule has seldom been enforced.

. . .

Guttman, Wollman’s attorney, said it was premature to talk about the damages if Mass. General is found to have improperly billed Medicaid and Medicare, but the costs could be considerable. The law calls for treble damages and Mass. General could face an additional penalty of at least $5,000 for each instance of improper billing, Guttman said. If Wollman prevails, he added, she could potentially receive 25 percent to 30 percent of any money recovered under the False Claims Act.

Read Full Article here.

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Amicus of Certain Members of Congress Opposing Motion to Dismiss in United States v Arpaio

United States of America,
Plaintiffs,
v.
Joseph M. Arpaio
Defendant.

MEMORANDUM OF AMICI CURIAE CERTAIN MEMBERS OF CONGRESS IN OPPOSITION TO DEFENDANT’S MOTION FOR VACATUR AND DISMISSAL WITH PREJUDICE

The amici curiae are members of Congress. They are Representatives John Conyers, Jr.; Jerrold Nadler; Zoe Lofgren; Sheila Jackson Lee; Steve Cohen; Henry C. “Hank” Johnson, Jr.; Theodore Deutch; Karen Bass; Cedric L. Richmond; Luis V. Gutierrez; David N. Cicilline; Ted Lieu; Pramila Jayapal; Jackie Speier; Raúl M. Grijalva; Joseph Crowley; Linda Sanchez; Bennie G. Thompson; Keith Ellison; Adriano Espaillat; Ro Khanna; Ruben Gallego; Norma J. Torres; Eleanor Holmes Norton; Jimmy Gomez; Dwight Evans; Juan Vargas; Nydia M. Velazquez; Jim Costa; Colleen Hanabusa; Frank Pallone, Jr.; Grace F. Napolitano; and Barbara Lee.

The amici have an interest in protecting the division of powers among the executive, legislative, and judicial branches of government set forth in the Constitution. The amici regard that division of government powers as essential to the preservation of liberty, as did the framers.

The amici oppose Defendant Joseph M. Arpaio’s Motion for Vacatur and Dismissal with Prejudice. The presidential pardon upon which that motion is based is an encroachment by the Executive on the independence of the Judiciary. The amici urge the Court to defend jealously against that encroachment as the framers intended.

. . . .

Amincus in US v Arpaio.

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Litigation in the age of the Internet

Top trial lawyer Reuben Guttman considers the use of emails and social media postings as evidence and how it is changing the nature, and possibly the outcome, of cases.

On the morning of 18 December 2015, the New York law firm of Kaye Scholer still had not taken off its website the biography of partner Evan Greebel, who, along with Turing Pharmaceutical CEO Martin Shkreli, had been indicted for securities fraud less than 24 hours earlier by the US Attorney for the Southern District of New York. By sundown, the biography was gone. Those wanting to learn about Mr Greebel could still view his LinkedIn page, which showed one ‘endorsement’ for his skill in private equity. That endorsement came from none other than Martin Shkreli.

For his part, Mr Shkreli’s life is more of an open book, with posts on LinkedIn, Facebook and Twitter and lengthy livestreams on YouTube. His LinkedIn page shows endorsements from approximately 100 individuals, whose detailed biographies also appear on the site. His tweets and retweets are revealing. Re-tweeting Bloomberg Press on 16 December, Mr Shkreli posted: ‘Wu-Tang loving Turing CEO Martin Shkreli is really good at short selling.’ Re-tweeting XXL Magazine on the same day, he wrote: ‘Martin Shkreli, who paid $2 million for the secret Wu-Tang album, says he’ll bail Bobby Shmurda out of jail.’ Now there’s an irony!

The New York office of the Federal Bureau of Investigation also cannot resist social media; it too has a Twitter account. On 17 December, it posted: ‘BREAKING: no seizure warrant at the arrest of Martin Shkreli today, which means we didn’t seize the Wu-Tang Clan album.’

Not hip enough to have heard of Wu-Tang? No problem, Wikipedia can tell you that it the Clan is an American hip hop band from New York. By the way, the band also has a Twitter account. And Bobby Shmurda? He’s a rapper from Brooklyn whose biography is on Wikipedia and who, like Shkreli, tweets whatever comes to mind.

With about one hour of internet surfing, an FBI agent can come up with a list of witnesses to interview, gain insights into the mind-set of criminal targets and even get a rough sense of who is communicating with whom. In the age of the Internet, the lives of witnesses and targets are to a certain extent an open book.

Federal agents undoubtedly looked at this very public information when crafting document subpoenas and conducting witness interviews, which allow penetration well below the surface of public banter.  And what do the document subpoenas turn up? Thumb drives loaded with emails!

Undoubtedly, it is the communications memorialised in emails that allowed the Justice Department to craft a detailed indictment alleging the who, what, when, where, and how of the criminal conduct. In a federal district court in the US, emails transmitted by a ‘party opponent’ (in this case the defendant) can be admitted into evidence as long as they are authentic, which means that they are what the purport to be: true and correct copies of the emails.  In US v. Shkreli, it is possible that federal prosecutors can make the case on the documents alone. Electronic communication and social media memorialise events in real time and statements made in these communications can be more insightful and convincing to a jury than oral testimony recollecting prior events. Times have changed since the days when handwritten drafts were given to a cleric to type. That process took spontaneity out of the mix.  These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness. The ability to use emails as evidence is perhaps only second to playing recordings of verbal or videotaped exchanges. For the attorneys and investigators in US v. Shkreli, it is just another day litigating in the age of the Internet.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

Article also available at The Global Legal Post.

This article is Part I of a series. Learn More at the National Institute for Trial Advocacy.