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Michael M. Guerra
2011 A Thompson Reuters service printed in Texas Monthly

In Qui Tam litigation a private citizen (the whistleblower) who knows of fraud committed against the government may, through his own privately retained lawyers, file a law suit to recover the losses caused by the government fraud. The False Claims Act provides huge financial incentives to citizen whistleblowers to retain attorneys and come forward, prosecute these lawsuits and fight government fraud. The lawyers at the Law Offices of Michael M. Guerra can help you evaluate whether may have a Qui Tam whistleblower claim. While Qui Tam claims can take on many forms, such as a government contactor falsely billing, many claims fall under healthcare fraud.
Pharmaceutical Fraud
Becoming a Whistleblower, and exposing pharmaceutical fraud, helps ensure that drugs are only marketed for the uses for which they were approved. Off-label marketing is profiteering at the expense of patient safety, a despiciable business practice that Whistleblowers regularly help eliminate. A healthcare system in crisis cannot afford such waste, and becoming a Whistleblower is an honorable way of doing your part.
Pharmaceutical fraud now accounts for the largest False Claims Act recoveries by the U.S. government and whistleblowers. Drug companies have been known to offer a doctor up to $10,000 worth in free trips, tickets to sports events, days at the spa, and dinner cruises. "Marketing" or as a way to "educate" doctors --- it is often simple bribery.
Pharmaceutical fraud is so pervasive that covering all the ways it happens is simply not possible. The Medicare prescription plan seems to ensure that the magnitude of this fraud will grow over time.
Drug company fraud often involves issues such as:
  • off-label marketing of drugs for uses other than those approved by the FDA;
  • kickbacks and other inducements to physicians, hospitals and pharmacies to prescribe specific drugs;
  • charging prices to the Government that are higher than allowable by law; and
  • providing false or misleading data to the FDA during clinical research trials.
Medicaid / Medicare Fraud
Becoming a Whistleblower, and exposing medicare and medicaid fraud, helps ensure that precious healthcare resources are used as intended. Whether used as a means of discouraging physicians and nursing homes from delivering substandard care, or ensuring that health care procedures are appropriately priced and delivered as necessary, Whistleblowers have become an integral check on the healthcare system. A healthcare system in crisis cannot afford such waste, and becoming a Whistleblower is an honorable way of doing your part.
Medicaid & Medicare healthcare expenditures are approximately 25% of annual U.S. healthcare expenditures, amounting to more than $600 billion in 2008. While physicians are often involved, Medicaid and Medicare fraud can be committed by many different parties, including hospitals, nursing homes, home health care agencies, durable goods providers, pharmacies and laboratories. If a provider receives reimbursement from Medicare and Medicaid, then as a government contractor any fraud they commit is subject to being recovered under the False Claims Act.
Medicaid and Medicare fraud often involve issues such as:
  • payments to reward the referral of patients or healthcare services payable by Medicaid or Medicare, including, referral fees, finder's fees, productivity bonuses, discounted leases, discounted equipment rentals, research grants, speaker's fees, excessive compensation, and free or discounted travel or entertainment;
  • various types of billing-related fraud, including:

    1. upcoding, which occurs when a health care provider submits a claim for health care services, treatments, diagnostic tests or items which misuse standardized billing codes so as to obtain more money than is allowed by law;
    2. submission of a claim for health care services, treatments, diagnostic tests, medical devices or pharmaceuticals that were never delivered to a valid patient;
    3. unbundling, which involves billing separately for groups of procedures typically performed together, so that a greater total reimbursement can be achieved than would be received from the group, or bundled, reimbursement rate alone;
    4. lack of medical necessity, a fraud where a health care provider submits claims for services, treatments, diagnostic tests, prescription drugs and medical devices that are not medically necessary;
    5. false certification, which occurs when a health care provider or healthcare company states that they have complied with terms of a contract, or other standards of care, so as to get a health care claim paid or to obtain additional business, when they know that such statements are untrue;

  • research grant fraud, involving some combination of providing false information on a government grant application, overbilling costs and other expenses covered by a grant, falsifying research data and results, inappropriate utilization of grant funds and undisclosed conflicts of interest for the principal investigators;
  • the existence of an improper financial interest, whereby a physician or other health care provider has a direct or indirect financial interest in services provided to their patients, including a prohibition on investment interests and compensation arrangements with entities that perform services to which they refer patients or from which they order goods and services paid for by Medicare or Medicaid; and
  • hospitals inflating the costs on their Medicare Cost Reports, or otherwise falsifying the information on these reports to maximize their reimbursement.
PBM & Pharmacy Fraud
Becoming a Whistleblower, and exposing PBM & pharmacy fraud, helps ensure that precious healthcare resources are used as intended. Whistleblowers have uncovered schemes between pharmaceutical companies, pharmacies and pharmacy benefit managers that cost the healthcare system billions of dollars. Whether illegal kickbacks to insurance companies, shorting prescriptions, switching prescriptions for improper reasons, or a host of other schemes, Whistleblowers have helped to correct these unacceptable behaviors through their actions. A healthcare system in crisis cannot afford such waste, and becoming a Whistleblower is an honorable way of doing your part.
As gatekeepers to the pharmaceutical companies, Pharmacy Benefit Managers ("PBMs") were to assist in reducing the costs of drugs for their clients --- private insurance companies, Medicaid and Medicare. PBMs earn billions of dollars for their services, but their close relationship with pharmaceutical companies has led to major whistleblower fraud recoveries.
Responsible for dispensing medication to patients, pharmacies often actually execute the fraudulent schemes based on relationships established between various parties, including PBMs, insurance companies and pharmaceutical companies. PBMs also own and operate specialty, retail and online pharmacies.
PBM fraud and pharmacy fraud typically involve some combination of the following:
  • illegal rebate and discount agreements with pharmaceutical manufacturers;
  • offering kickbacks to insurance companies or healthcare providers;
  • violating contractual responsibilities by shorting prescriptions;
  • switching patients' prescriptions so as to receive a kickback or other improper reasons;
  • cancelling prescriptions to conceal failures to meet contractually mandated deadlines for filling prescriptions;
  • charging Medicaid or Medicare patients a higher price than others for the same prescription; and
  • falsely reporting drug research grant information to government agencies.
Durable Medical Equipment Fraud
Becoming a Whistleblower, and exposing durable medical equipment fraud, helps ensure that medical equipment is safe and that precious healthcare resources are appropriately utilized. Delivering unnecessary medical equipment results in excessive costs to the healthcare system, ultimately limiting the availability of necessary medical supplies & equipment for all. A healthcare system in crisis cannot afford such waste, and becoming a Whistleblower is an honorable way of doing your part.
Durable Medical Equipment ("DME") fraud is on the rise as our population continues to age. Wheelchairs, prosthetic devices, portable oxygen tanks, orthotics, implants and related services --- DME fraud hinders society's ability to provide appropriate healthcare to our elderly and disabled.
DME fraud often involves issues such as:
  • payments to reward the referral of patients;
  • various types of billing-related fraud, including:
    1. upcoding, which occurs when a health care provider submits a claim for an item of durable medical equipment which misuses standardized billing codes so as to obtain more money than is allowed by law;
    2. submission of a claim for durable medical equipment that were never delivered to a valid patient; and
    3. lack of medical necessity, a fraud where a health care provider submits a claim for durable medical equipment that are not medically necessary.
 
 
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