• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Guttman, Buschner & Brooks

  • Home
  • Areas of Practice
    • High Impact Litigation
    • Whistleblower and False Claim Cases
    • Employment Litigation and Civil Rights – Employees
    • Employment Counseling and Litigation – Employers
    • Dispute Resolution and Investigation
    • Corporate Governance
  • Successes
  • Articles
  • Attorneys
    • CLE Seminars featuring GBB Lawyers
    • Justin S. Brooks
    • Traci L. Buschner
    • Judge Nancy Gertner (Ret.)
    • Dan Guttman
    • Reuben A. Guttman
    • Dr. Caroline Poplin
    • Elizabeth H. Shofner
    • Aaron Welo
  • Amicus
  • Videos
  • Contact Us
    • Twitter
    • Facebook
    • LinkedIn

Articles

August 7, 2014 By Reuben A. Guttman

CHS Cites ‘Shifting’ Standards in Fraud Allegation Settlement

This interview with Reuben Guttman, who practices law with Guttman, Buschner & Brooks PLLC in Washington DC. and who represented three Plaintiff-Relators in United States ex rel. Doghramji v. Community Health Systems Inc., was conducted by John Commins, Senior Editor with HealthLeaders Media. The interview was published online on August 6, 2014.

An attorney representing one of the whistleblowers alleging that Community Health Systems committed fraud says that as a nation, “we have a healthcare delivery system where doctors and individual decision making, to some degree, have been shoved to the side by corporate managers.”

Community Health Systems, Inc. and federal prosecutors have agreed to a $98.1 million payout to settle system-wide fraud allegations levelled by whistleblowers against the Franklin, TN-based for-profit hospital chain.

While they have agreed on a settlement, CHS and federal prosecutors disagree on what prompted 119 hospitals in the nation’s largest acute care hospital chain to allegedly overbill Medicare, Medicaid, and TRICARE from 2005-2010 for inpatient services for patients who may not have needed to be hospitalized.

CHS Chairman and CEO Wayne T. Smith said the hospital chain was struggling “to operate in a complex and everchanging regulatory environment.”

“The question of when a patient should be admitted to a hospital is, and always has been, a matter of medical judgment by the individual physician responsible for a patient’s care,” Smith said in a media release.

“Unfortunately, shifting and often ambiguous standards make it extremely difficult for physicians and hospitals to consistently comply with the regulations. We are committed to doing our best, despite these challenges. Because this is an industry-wide issue, we hope the government will work to devise sound and reasonable rules for the important decision about whether to admit an individual for inpatient care, and we appreciate the opportunity to engage in meaningful dialogue with the government over these incredibly complicated issues.”

A CHS spokesperson amplified Smith’s point by saying that the shifting standards, “such as the two-midnight rule, which has had numerous updates, clarifications, and additional guidance attached to it since it was issued in August 2013… make it difficult for ALL providers to consistently comply with regulations.”

Federal prosecutors said flatly that the fraud allegations stemmed from a “deliberate corporate-driven scheme.”

“Charging the government for higher-cost inpatient services that patients do not need wastes the country’s healthcare resources,” said Assistant Attorney General Stuart F. Delery for the Justice Department’s Civil Division. “In addition, providing physicians with financial incentives to refer patients compromises medical judgment and risks depriving patients of the most appropriate healthcare available.”

Even though the settlement terms don’t include a guilty plea, Daniel R. Levinson, inspector general of the Department of Health and Human Services said that “in an effort to ensure the company’s fraudulent past is not its future, CHS agreed to a rigorous multi-year Corporate Integrity Agreement requiring that the company commit to compliance with the law.”

CHS had already set aside $102 million to cover the settlements and legal bills.

The settlement also resolves several whistle-blower lawsuits levelled by CHS employees in hospitals in several states. The whistleblowers’ share of the settlement has yet to be determined, DOJ said.

Reuben Guttman, an attorney with Grant & Eisenhofer representing whistleblower James Doghramji, MD, a former emergency physician at CHS’s Chestnut Hill Hospital in Philadelphia, spoke with HealthLeaders Media about the settlement. The following is an edited transcript.

HLM: CHS CEO Wayne Smith says that the billing irregularities are due to complex and shifting federal requirements. Do you buy that?

RG: I don’t think he has a legitimate point. This is a company that is crying out for additional scrutiny and oversight and this is a poster child for a Congressional investigation. In theory, doctors are supposed to make decisions.

In practice, people like Mr. Smith and companies like CHS have set up a dynamic where individual patient medical necessity is secondary to marketing and money. We are at a point where we have a healthcare delivery system where doctors and individual decision making to some degree have been shoved to the side by corporate managers.

This is a story about a company that was gobbling up suburban hospitals for no medical rationale. It’s not that they can run them better or that they were providing significant expertise. It was just about extracting cash from the Medicare/Medicaid system.

CHS was designing its admissions criteria on a centralized basis. CHS in Nashville was tracking exactly what was going on in all of these hospitals. They knew the economics at a micro level. I don’t think plausible deniability exists here.

HLM: Do you have a sense of the value of the alleged fraud versus what CHS is paying for?

RG: If you actually look the cash flow for this company, this is a very significant amount of money that they have put off. It is probably not significant in relation to the actual cost to the United States government or individual payers or what the government could extract if they tried the case, but it is a number that pushed the edge of the envelop in terms of paying something that is significant but allows the company to go forward.

The most significant thing about these cases is that they make the wrongdoing to some degree transparent as a catalyst perhaps for Congressional oversight. The reality is that unfortunately, many of these settlements are nothing more than the fee for a license to continue to break the law. What is apparent to us is that a lot of large companies are gaming the system and thinking ‘what is the likelihood of getting caught, and if we get caught what is the penalty?’ The penalty becomes part of the game.

We have to have a penalty system that is hard to calculate in advance and that will make it more difficult. But in reality you have to change the healthcare delivery system in the sense that we rely on the integrity of these types of corporations that have put medical decision making secondary to making money.

You can see when a train wreck is about to occur when you look at the debt service for a company. You are not going to create additional sick people. There are only a certain number of sick people. This is a situation that is going to be ripe for fraud.

HLM: Was there a smoking gun for prosecutors or whistleblowers in this case?

RG: In all of these cases, the complexity of the cases, you don’t find smoking guns. It requires you to find the smoke and the pieces to the gun and put it all together. Then, the trick for somebody who is doing lots of fraud cases is to look at the facts that aren’t there, or the rules that don’t exist, or to see what appears to be facially neutral practices are driving impropriety.

For example, if you have an innocuous practice that says when somebody comes into an emergency room and there is a rule that says they should be put on an IV, you can look at that and say that is not a smoking gun, putting someone on an IV.

But wait a second, when you put someone on an IV that means you are going to streamline them into an admissions situation as opposed to giving them bottles of water, maybe they will be OK, and we will send them home. You have to look at facially neutral practices and how they are driving an unlawful result. That is the trick to uncovering fraud. It’s extraordinarily complicated.

You have two things that are going on. One is you have companies engaged in these facially neutral practices that have an unlawful result for the purpose of deceiving regulators. Two, more significantly, it is a way of creating a cult and convincing people internally that they don’t have to worry about it because nobody internally is putting the pieces together. People who are paid well generally don’t want to do it.

This is the simple question you need to ask: What person or entity knowingly exposes somebody to infectious diseases in order to make a buck? That is the cutting question, because the reality is that while hospitals are places to get well they are also places that are dangerous because there are infectious diseases in hospitals. You don’t want to admit somebody unless it is medically necessary.

There are corporate executives who are knowingly and recklessly putting people at risk. That is unconscionable.

HLM: Do you feel this is a fairly widespread practice in the hospital sector?

RG: I wouldn’t be surprised.

A CHS spokesperson reached for comment late Tuesday said “This investigation was not about the quality of care provided or the location of the care that was provided for any patient–or even how long patients were in the hospital. It is about whether the hospital could rely on the physician’s signed orders in the medical chart to establish the patient status as inpatient–and then bill for the exact care that was provided. It is about the “status” of the patient–inpatient or observation–while that patient was in the hospital.

February 24, 2014 By Staff

Reuben Guttman on “Internal Compliance”

With the growth of multinationals whose business transcends geographic boundaries and whose revenue streams exceed the gross national product of some nations, legislators and regulators—at least in the United States—have looked to leverage the resources of whistleblowers to bolster compliance enforcement. Under the right circumstances whistleblowers can be an invaluable resource.

First, whistleblowers can surface information not readily available, or otherwise concealed from regulators. Second, in places like India and China they add eyes and ears with cultural and language sensitivity and skills that the enforcement agency itself may not have available, at least in these particular locales. Third, they can have technical or scientific skills in areas that will assist the enforcement agency. Fourth, they often come equipped with counsel who can spend the time translating lay complaints into cogent legal arguments.

Read the entire article at Harvard University, Edmond J. Safra Center for Ethics.

March 14, 2013 By Staff

Blocking the FDA

Forks, orthodontic braces, hip-joint replacements-all made with radioactive metals. That’s what could have happened in the late 1990s as a result of the Department of Energy’s agreement with BNFL Inc. to recycle as much as I 10,000 tons of contaminated metal taken from the Oak Ridge, Tenn., nuclear weapons facility.

This did not sit well with Guttman, a Washington, D.C.based attorney who filed suit against Secretary of Energy Bill Richardson to block the recycling and distribution of these metals.

“I learned about the National Environmental Policy Act in Professor Arthur’s course on environmental law and knew that this was a federal action, which could have potential impact on health or the environment,” he says.

“This would mandate an environmental impact statement.” In pursuing the case, Guttman searched through copious documents for an environmental impact statement or a decision against assembling one. Neither could be found.

“I filed suit in the U.S. District Court for the District of Columbia against the secretary of energy,” he says. “When I sought discovery in the case, the Department of Justice, representing the Department of Energy, argued that this was an action under the Administrative Procedures Act and therefore, while I was entitled to a record, I was not entitled to discovery.”

Guttman argued successfully that because the government had failed to develop a record, he was entitled to the discovery necessary to develop one. He took depositions, including one from the assistant secretary of energy, and secured documents.

“The judge ultimately found that the entire project was troublesome. A public interest group took out a quarterpage ad in The New York Times quoting the judge,” Guttman says. “There was even a ‘Boondocks’ comic on
the subject of the case.”

The secretary of energy canceled the project. Now director at Grant & Eisenhofer in D.C., Guttman heads the firm’s whistle-blower practice. He has served as counsel in some of the largest recoveries under the Federal False Claims Act, including U.S. ex rel. Johnson v. Shell Oil Co., 33 F. Supp. 2d 528 (ED Tex. 1999), which recovered more than $300 million from the oil industry. He also represented one of the six main whistle-blowers who said Pfizer Inc. tried to entice doctors to promote and prescribe drugs for unapproved uses. Pfizer settled in 2009 for $2.3 billion.

Even before filing a case, Guttman’s team engages in intense investigation, retains experts and prepares as if a trial is imminent.

“We look at the case from all sides. We look at good facts and bad facts. We assume the court will see the entirety of the case,” Guttman says in an article, “Frontloading the Case: Theme & Theory in False Claims and Fraud Litigation.” “We develop theories for the case and a theme, which allows the decider of fact to ‘get it.”

Guttman also uses social media and other web-based resources to enhance his work. To that end, he founded whistleblowerlaws.com, which provides information about “qui tam” lawsuits that allow whistleblowers to seek damages on behalf of the government. He has a Listserv of more than 200 lawyers who share information about whistle-blower and civil rights cases. He also biogs for The Global Legal Post and uses Twitter and YouTube. Though his practice focuses on the most complicated of cases, Guttman can boil it all down to the simple idea that first piqued his interest in the field: Complex litigation can help people.

“The ability to try a case in court levels the playing field for those without power or resources to vindicate their rights,” he says.

Source: Emory Lawyer | Spring 2013

January 15, 2013 By Staff

YEAR OF THE WHISTLEBLOWER?

Whistleblowers and the people and organisations that support them have been making waves  and making news for decades. Finally, they’re making laws.

Over the past two years, many countries throughout the world have passed new or strengthened existing laws to protect whistleblowers from retaliation, and to help ensure that their efforts to disclosure corruption, fraud and other crimes result in needed reforms.

From Luxembourg to Vietnam, from South Korea to the US, and from Peru to Jamaica, countries in all regions of the world are granting new and expanded legal protections to people who expose a wide range of crimes. In many more countries – Australia, Canada, Colombia, Guatemala, India, Ireland, Lebanon, Nigeria, Pakistan and Taiwan, to name just a few – new or improved whistleblower protection laws are actively under consideration or being proposed.

The latest major breakthrough came in November, when US President Barack Obama signed into law the Whistleblower Protection Enhancement Act, which will provide new legal shields for federal employees – including protection for government scientists who challenge censorship, and for employees who challenge the consequences of the government’s policy decisions.

Thirteen years in the making, this victory was pushed over the top thanks to an extraordinary grassroots campaign by the Government Accountability Project, the Project on Government Oversight and the public radio programme “On the Media”.

And, last month, the European Commission – acknowledging input from TI and our friends at Public Concern at Work – passed new whistleblower guidelines for EU staff members, including a critical provision that requires managers to prove that any actions taken against employees were not motivated by whistleblowing.

Why are whistleblower protection laws important? Without them, citizens can be fired, suspended, harassed or otherwise retaliated against for exposing wrongdoing. In extreme cases, they and their family members are threatened, beaten or even killed – as in the case of an Indian whistleblower named Lingaraju, who was hacked to death in front of his wife while they were fetching water near their home on November 20.

Why are whistleblowers important? Worldwide, they have saved millions of lives, helped to recover billions of dollars in stolen and lost funds, saved precious environmental resources, and exposed all manner of cases of corruption, tax evasion, financial crimes and human rights violations gone undetected or ignored by official authorities.

According to a 2012 survey by Ernst & Young, 40 percent of respondents worldwide identified whistleblowing as a highly effective tool for detecting wrongdoing. According to KPMG India, nearly 30 percent of all fraud detected in the country has surfaced due to the anonymous whistleblower.

The oldest whistleblower law in the world – the US False Claims Act ­– has been credited with securing tens of billions of dollars in fines and stolen funds. An all-time record $4.9 billion in settlements and judgments was secured by the US Justice Department in 2012 under a whistleblower law that allows citizens to expose corruption and bring it to the attention of federal investigators. The figure topped the previous record by more than $1.7 billion, and brings total recoveries under the False Claims Act since 2009 to $13.3 billion – the largest four-year total in history, and more than a third of total recoveries since the law was amended in 1986.

These huge successes led Reuben Guttman, one of the top whistleblower attorneys in the US, to proclaim, “2012 can be looked upon as the year of the whistleblower.”

The international whistleblower movement is now at the point of no return. Activists around the world are demanding legal rights and protections for whistleblowers – and they’re winning in record numbers. As these protections expand, whistleblowers will have greater assurances that if they come forward and report wrongdoing, they will not suffer the consequence of committing the truth.

Source: https://blog.transparency.org/2013/01/15/whistleblower-laws-hitting-the-books-and-whistleblowers-winning-cases-in-record-numbers/

  • « Go to Previous Page
  • Go to page 1
  • Interim pages omitted …
  • Go to page 21
  • Go to page 22
  • Go to page 23

Primary Sidebar

Information

  • Where to Start
  • Whistleblower Information
  • Federal & State False Claims Acts
  • Protecting Whistleblowers
  • CLE for Attorneys

Law Flash

UPMC, head of cardiothoracic surgery will pay $8.5M to feds to settle lawsuit

"Patients don’t know their doctors are serving two masters." UPMC, a renowned cardiothoracic surgeon there and a physicians group will pay the federal government $8.5 million to settle a lawsuit … [Read More...] about UPMC, head of cardiothoracic surgery will pay $8.5M to feds to settle lawsuit

Footer

Guttman, Buschner & Brooks PLLC

Washington DC Office NEW!
Embassy Row District
1509 22nd Street, NW
Washington, D.C. 20037
Phone: 202-800-3001



Pennsylvania Office: New!
450 N. Narberth Avenue
Suite 102
Narberth, PA 19072
(610) 547-9556
On Demand CLE: Reuben Guttman, and Professor JC Lorepresent CLE covering topics in their book, Pretrial Advocacy, Wolters Kluwer-NITA (2021).”
To learn More
More about the book here
More CLEs by GBB Attorneys

Articles

CLE: Demand Letters and Pre-Complaint Settlement

UPMC, head of cardiothoracic surgery will pay $8.5M to feds to settle lawsuit

The Travesty of The US News Rankings: How Legal Education Should Be Measured

More Articles

Copyright © 2023 · Guttman, Buschner & Brooks PLLC
Disclaimer