My Correspondence with a Potential Client

I am posting the below information on my Blog for two reasons:

1. To give you, as a visitor to my site, an idea about some of the inquiries that I receive as a result of traffic to www.whistleblowerlawyer.com, my web site.

2. To make you aware of the attention I give in responding to these inquiries.

 

On Sun, Jul 13, 2014 at 12:58PM, <john.murphy18@comcast.net> wrote:

Dear Sir:

Thank you for your prompt response to my request for further details.

In the comments and questions that follow, I hope you can appreciate the skeptical thrust of some of my questions. 

If there’s to be a False Claims Complaint filed, the cheating physician should be left with very little “wiggle room” – nothing that might provide him with an excuse that goes – in layman’s terms – something like this “Yes, I did that, but I was allowed to do it under Section blah blah blah of the Federal Regulations,…” 

In other words, I’m looking for details that will prevent the physician from escaping responsibility and exposure under the False Claims Act by citing an exception in the regulations that right now we are not aware of.

You’ll note below that I’ve reordered the questions you’ve raised in terms of the priority with which I believe the allegations might be set forth in a Complaint. In order to remove the doctor as a sympathetic figure – the beleaguered physician overwhelmed by all those odious federal regulations and someone simply trying to ‘make ends meet’ – we’d lead off with the most egregious demonstrations of outright, provable fraud, setting forth all of the physician’s actions that might be considered malpractice or even borderline criminal.

 

1. Halving the doses on antibiotic shots in order to save money, but still billing the patient’s provider for the full amount of medicationThis has been the practice of the office for the last 4 months. 

While this particular allegation might not involve a substantial amount of damages, it certainly will be “an eye opener” for Federal officials when they examine your claim. “Here’s an internist, who, in order to ‘make an extra buck” is willing to expose his patients to disease or a virus.”

What follows are some of the questions I have to ask. What is the cost of a full antibiotic shot? What is the cost of a half shot?  How often did this occur? And did you see it? How many dollars are “saved” (and pocketed) by the physician’s not using the full shot, but nonetheless, billing and receiving money from the government for it? 

And finally, most importantly, (here’s that ‘wiggle room’ question again): Is there any rule that might allow the physician, in his discretion, to consider the size, sex, age (child or adult) and/or weight, etc. of the patient, in a circumstance where the doctor is fully authorized to use his discretion in administering the inoculation by only using ‘half a shot’ or other forms of decreased percentage? 

When you say, “This has been the practice of the office for the last 4 months” – how did this practice come about – did the physician issue a directive? Whom did he tell to do this? Did you see it?   

When a patient gets a shot, he or she assumes they’re receiving the full shot and that he or she is now fully protected – that they’re immune – and they no longer have to worry about being exposed to the flu or whatever disease or virus that he/she is being inoculated against. This particular act, if proven, (and if all the following questions are answered) comes quite close to malpractice and even criminal behavior.

 

2. He routinely adds a diagnosis of chest pain without any symptoms being present. He tells the patient that he just wants to make sure they are okay, but then in the bill and medical report, he diagnoses and falsely reports whatever disease is necessary to validate the tests – chest pain even when the patient has no chest pain or any cardiac related symptoms whatsoever. All of this is done so that he might get Medicare reimbursement after ordering diagnostic testing – the CXR/EKG combo when there are no clinical signs or symptoms, or echo/rad/carotids and Nuclear Stress tests when there are no symptoms.

The doctor then contracts with outside groups to come in and perform diagnostic tests – Stress tests and vascular studies that he orders. He collects the facility fees for performing the tests – even when Patients do not have any signs or symptoms that require the testing. This sort of unnecessary, undiagnosed and fraudulent conduct is a huge part of his office income.  There never are any empty time slots because he fills them up. 

With this allegation, my impression is that we might move above the 20% figure that you estimate are his Medicare payments, because, obviously, this type of problem – cardiac care – is more prevalent in the elderly.

We’d like to be certain that the doctor has no “wiggle room.” (Here, again, we’re faced with all sorts of HPPAA challenges.) In other words, might it not be argued at some point (by the doctor’s lawyers) that he was being extremely cautious and careful, and where you – the non-physician – didn’t see the symptoms that he saw and sees, that he as the treating physician is required to see things quite differently – smoking, elevated blood pressure, alcohol consumption, an overweight patient with a red face – all of which might, by the physician, be interpreted as some sort of predictor or signal of a future cardiac event. And his lawyers might argue that their client is “damned if he does, damned if he doesn’t” by claiming the doctor admittedly practices defensive medicine – that he doesn’t want to be hit with a malpractice claim in the distant future because he failed to order testing on symptoms that were visibly apparent.  And so, in the exercise of caution, he ordered the testing…. (Without actually listing this in any of the medical reports.)

Believe me – I’m not accepting what might be the physician’s argument. I’m simply suggesting that we ought to be prepared for how the physician (and his lawyers) might respond. 

 

3. The doctor does not perform physical exams. The office has a computer program that automatically populates a physical exam for each and every one of the 75 to 80  patients that the physician sees each day.  The number has averaged over 80 patients a day for the last year. We will see between 30-45 patients between the hours of 9:00 am and 11:00 am. We will see between 45-60 patients between 1:00 pm and 4:30 pm. If you pretend that the doctor is on the floor for the full amount of time and that each patient gets an equal amount of time, each patient gets 4 mins total with the doctor in the morning and 4.5 mins in the afternoon. In actuality, my doctor spends 1-2 minutes with each patient. The rest of the time he is on his phone or in his office. 

 

4. In the visit,  the doctor spends less than five minutes with the patient (1-2 minutes on average) and the only thing that he does in that 1 to 2 minutes is decide the treatment.

 

5. Given the fact that the doctor is only with the patient for less than two minutes,  there is no conceivable way for him to perform each of the exams.

 

6. The doctor documents physical examinations that were not performed in order to increase the complexity of the visit and receive reimbursement from the insurers and from Medicare.

 

7. When the patient presents with a complaint (cough, rash, broken bone) and the physical exam says the patient is perfectly healthy, something does not add up.

I don’t quite understand how this plays out in terms of the amounts Medicare gets billed. Let me be more specific: Is it the “automatically populated” physical exam (that is defaulted to) that says the patient is “perfectly healthy”? And wouldn’t being “perfectly healthy” generate a lower bill to Medicare than would the bill for treatment for a “cough, rash or broken bone?” And so (once again I’m being the devil’s advocate here) wouldn’t the physician be able to claim that ‘it’s a wash’ – the higher bill on the ‘complex physical exam’ is balanced out by under reporting treatment for the fracture?”

 

8. He bills visits based on the complexities of exams he did not perform

Is there a statute or regulation that requires the physician – individually and in person – to be present for all of the “complexities of the exam” – in order for his office to bill the Government? Is there anything that mandates that any exams that are performed by any one else, other than the physician – albeit under his supervision – cannot be billed by his office? Is there any statute or regulation that might allow medical assistants or nurses to perform these exams? 

 

9. He bills visits on histories he did not take.

Can’t someone else take the history? Isn’t it possible that there is a rule or regulation that says someone else can take the history?

 

10. He orders tests that are not necessary 

I take it you’re referring to the Cardiac care testing noted in #2 above. Are there other tests as well?

How can this be proven without HPPAA violations? What are the tests and what is the evidence that they are not necessary?

 

11. He receives payment in the form of outpatient facility fees 

What is “an outpatient facility fee” and how does this prove the allegation of an unnecessary test?

 

12. He receives payment in the form of xray/diagnostic fees.

What is an “xray/diagnostic fee”?  and how does this prove the allegation of an unnecessary test?

 

13. He bills as though the patient was seen for an extended period of time. The total charge for a visit is based on the complexity of the physical exams. He has it setup to look like he is performing complex exams on every patient so that he can receive a higher reimbursement. Every patient. Every visit by every patient is billed at a 15 minute face to face minimum. 

Is there a rule – that if it’s less time than, say, 15 minutes, it cannot be billed? Is there a regulation/rule that supports your statement that “the charge…is based on the complexity of the physical exam.” Or that the charge is increased on a prorated type basis as more time is spent with the patient?

 

14. He never bills for less. On 60% of patients, he bills for a 30 minute face to face.

Going back to my earlier question: Is there a regulation/rule regarding what Medicare will pay – a schedule that prorates the payment according to time spent – that would allow a ‘30 minute face to face’ to receive more from Medicare than the 15 minimum face to face?

And doing the math from the figures you’ve provided – 80 patients a day, with 60% of them – 48 – billed at a half hour face to face apiece, would require the doctor to be working 24 hours every day, just in performing all those ‘complex face to face physical exams.’

 

15. He does not do any documentation,

Is there a requirement that mandates documentation for every physical examination

 

16. I have direct contact with 30% of the patients that the doctor sees each day. If we see 90, I saw 27-30. If we see over a hundred, I will see close to 35. 

Earlier, you said he sees 75 patients a day, and recently, he’s averaging 80. At another point you put the numbers in ranges. So that, when you use 90, you are using the higher end number. 

 

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All the information that follows – information that forms the basis for how you know what you do, would go into a Relator’s Statement that is sent, along with the Complaint, to the Attorney General and to the United States Attorney in the District Court where the complaint is filed.

 

Where – in what state – did all of these events occur?

 

1. I take histories, record vital signs, and ultimately write the note for the doctor each day. The doctor does NO actual computer documentation. His login does sign notes and lab results but every part of the note is written by the nurse or generated by the computer program. I can prove that the doctor never actually signs any nurses exam notes. They are all signed by the office manager who uses his login. I, and all the other nurses, have been told to write notes that support the doctor’s diagnosis. The doctor leaves early and the manager stays and signs the notes one-by-one in rapid succession. I can prove this.

 

2I have disclosed hundreds of pages of documentation to the BCBS Auditors. My doctor treats all patients equally and defrauds all insurances equally. They thanked me for my report and assured me that they will be investigating.

Is Blue Cross Blue Shield the only insurance carrier. There are dozens of others, and I’m curious about why BCBS is the only carrier you mentioned

 

3. I am the charge nurse. I am in good standing. I am his “right-hand man.” He suspects nothing.

 

4. He is not documenting patient care. The nurses document all of the patient care. Most of the time the doctor never even sees the note. It is signed by the office manager. (also provable) I can provide full logs of each users activity and the IP address of the computer that accessed the information.

I already asked this question – I’m assuming that the physician is not required to personally document everything that he does, and I’m wondering where the line is drawn – where assistants are allowed to complete the documentation, and where they are strictly prohibited from doing so.

 

5. I can only bear witness to what I have seen in my two years (22 months) working for him. I can go back in the computer for up to three years and show evidence of his fraud. But I am an expert on more than the two years that I have been there. We bill for $6000-$15000  a day from visits alone. This does not include the outpatient diagnostic testing performed in our office.

I honestly do not know what percentage daily is Medicare, but at least a quarter of our patients are Medicare. I have access to the computer logs, patient charts, and superbill summaries. I do not have access to the A/R.

 

6. Is it worth pursuing this based on the medication fraud alone?

If you mean simply by only claiming fraud based on the elements set forth in paragraph 1 above, I think the answer is ‘No.’  Again, while decreasing the amounts is egregious enough, it doesn’t seem to me that this alone would ignite the Government’s interest in taking over.

 

7. Is my case too small?

Right now, this is a tough question to answer. Let’s do the math:

Assume preliminarily that all the claims come in positively and that $1,000,000 is the amount that your claim generates – in settlement or with a verdict. This would result in the Government’s receiving $850,000 with 15% of the recovery going to you.  (The statutory range is 15 to 25%, but unless there are extraordinary circumstances, for the most part, the lower end is usually paid to the Relator.)

As I mentioned in my earlier note, the first goal is always to get the Government to take over the claim. It’s difficult, (without the possibility of some form of criminal exposure,) to see the Government displaying any sort of enthusiasm for devoting its limited investigative resources to the possibility of a $850,000 recovery. Even doubling the recovery, it’s still a challenge to predict any enthusiasm by the Government. (And I think this might be the reasoning behind the other attorney(s) you contacted displaying some reluctance for taking you and your claim to court.)

And looking at the claim from your perspective – is it worth it for you?

On a million dollar recovery, 15% to 25% goes to you. Starting with $150,000, minus my 1/3 fee minus the costs of filing $400 leaves a net to you, after approximately a three or four year period, a recovery in the range of $95,000 to $98,000. 

As for my interest in representing you – some of my response is determined by what state all of these events occurred in. As you might know from my website, my office is located in Connecticut. If the claim arose in New England where my costs would be rather minimal, I don’t see the range of recovery as a problem with regard to my representing you. 

If, on the other hand, you’ve contacted me the midwest, the south, or from Texas or California where these events occurred, I’d have second thoughts about taking on this challenge.

I hope all the above remarks respond in some manner to the questions you raised.

Please let me hear from you.

 

John

 

______________________________________

From: “The Potential Whistleblower Client asking the Questions”

To: “murphy18, john” <john.murphy18@comcast.net>

Sent: Friday, July 18, 2014 11:51:47 AM

Subject: Re: Possible False Claims matter based on Medicare Fraud

 

Mr. Murphy:

 

Based on your missive, there does not seem to be any indication that this is something that you would be interested in.

1. I am from the deep south

2. There is not 1 million dollars worth of medicare fraud

 

I appreciate your time and patience.

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