[Updated Ed. note: This is a copyrighted article written by our friends at Mcgrath & Grace in Cleveland. Attorney James McGrath helped law firms and businesses with investigative and in house compliance needs. Jim also wrote extensively on the Foreign Corrupt Practices Act. Sadly, after writing this article, Jim died unexpectedly. He was a young lawyer with a brilliant mind.
We reposted this article because of our False Claims Act / Whistleblower practice. Although we are sometimes on opposite sides, we have great respect for Jim and his team of investigative lawyers. Our regular readers and clients know that our recent false claims act case against Allied Home Mortgage was adopted by the U.S. government on November 1st. With that filing, Mahany & Ertl becomes one of the few law firms in the nation with a whistleblower complaint in excess of $1 billion. We are always looking for new clients – if you know of fraud or fraud against the taxpayers of the United States, please give us a call. This includes taking Foreign Corrupt Practice Act cases on behalf of whistleblowers. All inquiries are confidential.]
by James Mcgrath, Esq.
With the uptick in Medicare and Medicaid fraud enforcement and False Claims Act intervention, surely the number of government investigations will continue to outstrip manpower. It is the nature of the beast and we are talking about government, after all. Previously, the delay that this has placed upon evaluations of qui tam claims and decisions on interventions has been written about in this corner. Burgeoning to-do lists or not, a Wyoming case seems to be the poster child for intolerably slow inquiries by the government.
As reported in an Associated Press article, a former hospital worked filed a suit in 2007 alleging that Wyoming Medical Center altered hospital records to collect higher fees from the Medicare and Medicaid programs by having its records clerks change the admission status of patients. According to the pleading, these changes from out-patient to in-patient allowed the hospital to fraudulently garner nearly $10,000 in higher reimbursements from the federal insurance programs.
The whistleblower and qui tam plaintiff is a former worker named Gale Bryden. She was responsible for collecting fees that had been denied by Medicare, Medicaid, and private insurers, and in the complaint cited 21examples of clerks modifying patient records. These changes resulted in increased charges ranging from $35 to $1,100 that subsequently appeared on patient accounts.
Bryden’s claim also asserts that this practice was “by and under the direction of the highest levels of hospital management” and that it is suspected that the practice continued after she notified a hospital administrator. Specifically, Bryden contends that she shared her concerns with Wyoming Medical Center’s then-COO and current President, Vickie Diamond, sometime in 2006. Diamond has said that she has no memory of meeting with her to discuss concerns about fraudulent billing.
While Bryden filed two amended complaints in 2008 and 2009, U.S. District Court Judge Judge Scott Skavdahl ordered the 2007 filing unsealed late last month after federal attorneys notified the court in mid-October that the government wouldn’t be intervening in the case for now because its investigation isn’t complete.
As to that investigation and according to hospital attorney Dick Williams, Wyoming Medical Center has been cooperating with the government since being requested to do so in May 2009. Specifically, Wyoming Medical Center has provided the Department of Justice with information on public and private insurance claims from 2002 through 2009.
Certainly one could argue that at $10,000, the Wyoming Medical Center case is not the biggest fish in the Medicare and Medicaid fraud pool. However, it probably is one of the more prominent ones in Wyoming, which is not exactly the fraud hotspot that South Florida or Southeastern Michigan are. And while there is much to be said for triaging investigations by dollar amount, there is also much to be said for clearing the list of action items that are quickly and easily dispatched.
This case would seem to fall into the latter category. Patients either got treated while they were laying in a hospital bed or not. The implicated records are going to show the former and the only issue, then, is where the patient really was at the time. So the critical investigatory step is to find each patient and ask if he or she was admitted to the hospital or not when a given procedure was performed. Who would know better?
By way of an internal investigation – which is not referenced and was presumably not done – four years have elapsed. With respect to the government’s external investigation, two years have elapsed. Either way, these are long times for someone to drive to 21 homes in and around Caspar, Wyoming and ask the definitive question at each