Healthcare Fraud: How to Recognize and Report Fraudulent Activity

This video features Jason T. Brown, an Employment and Labor Law attorney based in New Jersey.

Whistleblower Attorney Accepts Cases Nationwide

Video Transcript:

Jason Brown:

Some people do it for the nobility of it, and God bless them for coming forth and helping the system, but there's also an economic incentive attached to a whistleblower who blows the whistle the right way. Why not try to partake in that upside as well, if you're going to do the right thing?

Rob Rosenthal:

Could you possibly be a witness to health care fraud and not even know it? Maybe you have a whistleblower case. We’re going to find out right now because that's what we're going to ask the lawyer on this episode.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com, and my guest here to answer all of our questions as New Jersey attorney Jason Brown. I want to remind you if you have questions about your specific situation, just head over to askthelawyers.com, click the little button at the top of the screen that says “Ask a Lawyer”, and you can do all your asking right there, but right now it's my turn. Jason, it's always good to see you. Thank you for making some time to answer our questions.

Jason Brown:

Great to see you this morning. Thank you.

Rob Rosenthal:

So when we talk about health care fraud, that's a pretty big umbrella, and that covers a lot of different things. Specifically for our conversation we're talking about defrauding the federal government, right?

Jason Brown:

Yeah. It is a very broad conversation because it is fraud to the tune of hundreds of millions of dollars a year when you talk about defrauding the federal government, but when you also add into the mix defrauding private insurance, the number probably reaches a trillion dollars. If you're not ticked off, you should be, because this type of fraud winds up hurting everybody. It hurts you as a taxpayer because your taxes go up when the federal government is defrauded, and it hurts you when you have healthcare insurance because your premiums go up as a result of all this fraud.

Rob Rosenthal:

Wow. You've had a lot of experience with this; is it possible that some people might be aware of this fraud and not even realize it, or am I being naive?

Jason Brown:

People don't even know what they know. It is an interesting tension about what goes on, because there's all different types of fraud, and some of the fraud is so prevalent and incestuous that they just think it's the new normal, so therefore it's normal and not illegal. But I can run through one prevalent example of something known as kickbacks; in the kickback paradigm, what happens is that healthcare providers pay to get Medicare or Medicaid patients funneled in their direction, but inside the institution they may think this is normal. If they pay a doctor that's outside their practice money to get the Medicaid, that might be what everybody's doing. They don't think there's anything wrong, but under the federal guidelines, there is something deeply wrong with that.

Rob Rosenthal:

What are some of the other areas in layman's terms that constitute healthcare fraud?

Jason Brown:

There's a variety of them, and there's no real shortage depending on how innovative the dirty doctor or medical practice is. There's upcoding; upcoding involves when somebody, for example, is there for a 15-minute visit, but the healthcare practitioner puts in for a 30-minute visit. Services not provided, that's an easy one; a person comes in for one procedure but the doctor bills Medicare or Medicaid for multiple procedures that weren’t performed. Ghosting patients; these are phantoms but there's some real money that's attached to these phantoms, and what happens with ghosting patients is that the actual person may show up once a month, but the healthcare practitioner bills them two or three times a month.

One of the huge areas that sometimes is a billion dollar claim by itself is pharmaceutical fraud, and that can happen in a few ways. When they go for approval of a product—big pharma generally—if they falsify the FDA results and the studies to get a product approved, that's a big no-no. If they lie about the efficacy of a product; so for example, if there's a case involving a product that the pharmaceutical company knows is inert or does not work, that could be a huge pharmaceutical case. Off-label marketing; in the past, for example, let's use Propecia as an example, although I'm not saying anything was wrong legally with the Propecia marketing, Propecia was supposed to be used to treat benign prostate enlargement, but the off-label promotion was for hair loss and hair growing, not that I know anything about that one or the other. But if you're telling the federal government, you've been approved for A) the prostate usage, but then sell it to the federal government and everybody else for B) the hair loss part, you may have a big case.

Unnecessary tests, particularly in the context of what's going on right now with the virus that unfortunately we’re all plagued with and have to face. You may come in for the virus and they may decide, :Hey, we'll also test you for STDs,” even though there's no necessary correlation. So there's really no shortage of false scams the healthcare practitioners engage in in order to over-bill the Federal Government and you the taxpayer.

Rob Rosenthal:

In your experience, Jason, is there one type of person who usually ends up being the whistleblower? Is it a person in charge of billing or coding, or does it run the gamut?

Jason Brown:

It could run the gamut, although individuals that tend to fare better in this type of litigation are individuals who have inside information about systemic fraud, so that could be a coder or a biller or a doctor. But it could be anybody, even a receptionist, potentially, that knows there's a scam going on. The key is not necessarily understanding the entirety of the scam, but knowing where to go and who to ask the right questions to, so you can tease out and flush out the fact pattern, and find out if you may potentially be exposing a fraud. The way it goes with the qui tam under the False Claims Act, is that the fraud isn't exposed immediately. Oftentimes, after you consult a whistleblower lawyer or whistleblower law firm, it's years before the defendant finds out that there's an active investigation into their conduct, because the case is filed confidentially, under seal.

Rob Rosenthal:

And we mention this often, but I think it's worth mentioning again; you talked about knowing where to go. If someone thinks they have knowledge of wrongdoing, they need to talk to someone like you first before they go and confront somebody or call the HR Helpline or any of that stuff. They need to talk to an attorney first, right?

Jason Brown:

Absolutely. They need to speak to a whistleblower lawyer first. I think we try to talk every month, and we certainly appreciate having the opportunity to speak with you, and we talk about it all the time. In the last period since we talked we had two individuals that came to us that internally reported the matter; one was fired a week later, and one was fired within an hour after internally reporting through the company’s internal mechanisms which allegedly are supposed to have no reprisals. That's why you should speak with a professional, even if it's not our firm, to speak with somebody who focuses on protecting whistleblowers like our firm does, and they'll go over your options and potential consequences for reporting it through the internal reporting mechanisms.

Also, if you report it to the government in the wrong way, you may have all the downside and none of the upside. What I mean by that is your identity may eventually be disclosed to the defendant, but you may not be able to partake in any recovery. Some people do it for the nobility of it, and God bless them for coming forth and helping the system, but there's also an economic incentive attached to a whistleblower who blows the whistle the right way. Why not try to partake in that upside as well, if you're going to do the right thing?

Rob Rosenthal:

Well, let's talk about that quickly. Besides “I did the right thing and I can pat myself on the back”, there can be a monetary reward for the whistleblower. Tell us about that.

Jason Brown:

It could be quite hefty. When we talked about healthcare fraud being in the billions each year, every year under the False Claims Act, between two to three billion dollars are recovered, and whistleblowers under that statute alone could obtain up to 30%. So that's almost $900 million a year available to the whistleblowers under the False Claims Act alone, and that's the federal False Claims Act. In fact there are other statutes that a skillful firm might be able to navigate, such as the Illinois Private Insurance Act or the California Private Insurance Act where you can get up to 50% of what the government recovers. So if you have the right information and you steer that information to the right firm, they're going to look for ways to, number one, better society by addressing the issue, but number two, protect you as the client and try to maximize your potential for recovery.

Rob Rosenthal:

Does someone need to be prepared to pay out of pocket to talk to you to find out if they have a case, Jason?

Jason Brown:

With our firm, not at all. With our firm, we offer free confidential consultations across the country about various whistleblower matters, and most of the time we take the case, we're not paid unless we win the case. So we may spend tens of thousands of dollars litigating, flying out once air flight happens once again, and assuming the case goes south, the individual does not owe us a dime. We only get paid if we win, and we like to win.

Rob Rosenthal:

Lots of great information. Always an interesting talk, Jason. It's good to see again. Thank you for making some time for us.

Jason Brown:

Thank you very much for having me.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been New Jersey attorney Jason Brown. Remember, if you have questions about your specific situation, head over to askthelawyers.com, click the button at the top of the page that says “Ask a Lawyer”, and it'll walk you through the process there. Thanks for watching, everybody. I'm Rob Rosenthal with AskTheLawyers™.

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