I just hate to hear that lonesome whistle blow

July 1, 2005

"Phil, whatcha doin'?""Working on my retirement plan.""In the hospital dumpster at 9:30 at night?""You got a problem with that?"

"Phil, whatcha doin'?"

"Working on my retirement plan."

"In the hospital dumpster at 9:30 at night?"

"You got a problem with that?"

"No, but it's the same answer you gave when I found you videotaping the CEO's car in the parking lot yesterday."

"That's also part of my retirement plan."

"How, exactly?"

"The CEO of Octagiant Universal Care Hospitals (OUCH) made over $100 million last year. He's gotta be doing something crooked to make that kind of money. Jeffery Barbakow, the CEO of Tenet, made $116 million the year before he was forced out for overseeing Tenet's Medicare overbilling. Richard Scrushy spent over $200 million on his lavish lifestyle while allegedly orchestrating a $2.3 billion fraud at HealthSouth."

"Your point?"

"Whistleblowers! I just need to get some incriminating evidence, and I can sue and share in those huge criminal awards. The whistleblowers who nailed HCA got over $151 million."

"How does video of the CEO's car help?"

"He has the hospital maintenance crew service his car. I filmed them changing the oil and spark plugs. These other crooks have been caught billing Medicare for flowers, vacations, home repairs."

"Phil. Isn't that a human fingertip on the top of your shoe?"

"That might be useful."

"Qui tam" is not the name of that lovely plum sauce on your mu shu pork. Qui tam is a legal term, an abbreviation of "qui tam pro domino rege quam pro seipse," meaning "he who sues for the king as for himself." It is associated with whistleblower laws, under which an individual can bring an action against an offender or compel the government to act.

The law dates to 1863 and was strengthened in 1986, resulting in a dramatic increase in claims. Actual whistleblower awards rose to 30% of the final settlement, and protections for the whistleblower were expanded. Since the government is allowed to collect treble damages plus a $10,000 fine per claim, the "ka-ching" sound can be intoxicating to prospective whistleblowers.

Medical fraud now exceeds corporate fraud. In 1996, the Office of Inspector General concluded that 14% of Medicare payments, totaling $24 billion, were improper. Medical fraud charges have become very profitable for the government, since for every $1 invested in prosecution, the government sees a return of $13. Whistleblowers accounted for 70% of all fraud recoveries in 2003, representing $1.5 billion. Who are these whistleblowers?

Centre Radiology and Summit Radiology in western Maryland merged to form Tri-State Radiology after their hospitals-Sacred Heart and Memorial Hospital-merged. A Dr. Pumroy learned that the merged group would continue to use questionable billing practices that included upcoding and unbundling. The centers billed screening mammograms as diagnostic and routinely performed CTs of the pelvis on patients for whom the referring clinician ordered only a CT of the abdomen. Pomroy sued. The final judgment was for $1.1 million.

Suzan Walker, who served as the supervisor for Medicare coding for Radiology Regional Center, a group of 27 radiologists in Florida, won more than $443,000 after the group agreed to pay $2.5 million for numerous billing irregularities.

Search online for "whistleblower" or "qui tam," and you will generate a huge list of lawyers advertising their services to help you file a lawsuit. Books can teach you how to find billing errors and file suit. Even the Medicare Web site encourages beneficiaries to blow the whistle.

You're not a criminal, right? You have not authorized any fraud, right? Think again. The 1986 revisions to the False Claims Act eliminated the "intent" standard, so you can be held liable even if you did not intend to submit a false claim or relied upon a subcontractor who made an honest error. Think such errors are infrequent? Think again. HealthHelp, a radiology management services organization, found in an audit of two HMOs that 38% of claims had errors. Honest errors, right? Easily corrected by asking the right people, like those who work at the Medicare help line? Wrong, wrong, wrong. A study from the Government Accountability Office found that 96% of answers to billing questions were incomplete, only partially correct, or totally wrong. That "helpless line" fielded 28 million calls in 2004.

If you want to avoid turning your own employees into bounty hunters, either check out certified radiology coders or spend the time and money to train your staff appropriately. Kathy Dunlap is president of the Radiology Coding Certification Board, which has certified about 700 radiology coders since 2001. She makes some very astute observations.

"Patients may trust their doctors, but they are predisposed to not trust their medical bills," she said. "Physicians need to view coding as a significant risk to their practices that needs to be carefully managed. It is our job to impress upon physicians the consequences of doing it wrong. This includes loss of their license, Medicare participation, as well as fines. It can affect not only cash flow but reputations."

Give your staff the tools to do their job right, and they will protect you. Don't be like the internist I know whose wife does his billing; when she wants a new car, she just upcodes for that month.

Do you ask the right questions? Is your first question "Are our collections high enough?", or is it "Is our error rate low enough?" Too often, the tone is set by how much money is being collected rather than how compliant or accurate a group is. Consider an outside audit of your claims process.

If an employee comes to you with a concern, listen. Most whistleblowers did not want to hurt their employers but were just trying to help. It is the frustration of seeing their concerns ignored or challenged that often compels them to become a whistleblower, since so many suffer for their actions.

Do you have a partner who is responsible for compliance? Does your group send out the message from the top down that everyone has to do the right thing? Don't be like Thomas M. Coughlin, a 28-year Wal-Mart veteran who had served as executive vice president, president, and chief executive. He was forced out after a whistleblower exposed financial improprieties. For a man making $6 million a year, it just doesn't make sense to loot the company for another $100,000 on little things like gift cards and boots, as he did during his career.

Targeting a large corporation with a qui tam lawsuit might seem like the answer to retirement planning for Phil. But he and other radiologists may find themselves victims of a suit by their own employees if they're not careful. Better to spend time getting it right the first time. You don't want to find yourself in Sing Sing eating lunch with a white collar criminal, do you?

Dr. Trefelner is a radiologist and cofounder of NightShift Radiology. He invites comments by e-mail at ericxray@pacbell.net or fax at 650/728-5099. He also answers questions posed by readers in the "Ask Eric" column on diagnosticimaging.com.