Elizabeth Warren May Have Just Tapped On The Tip Of The Iceberg
Recently, Senator Elizabeth Warren (see video above) pointed out that banking regulators were settling all of their cases out of court. This pattern doesn’t just apply to banking regulators but it also applies to other justice department dealings with corporations. The pattern is to not prosecute CEOs for criminal actions and to settle lawsuits against corporations out of court. To be fair, this isn’t always a problem with the Department of Justice. Laws can make it difficult for them to go after CEOs and the justice department under the Obama administration has recovered far more from corporations than past administrations. Nevertheless, the focus on certain types of cases often seems backwards to what one might expect. For example, consider the following case (see below for details) involving a Fairfax Nursing Center (FNC) which agreed to pay $700,000 to resolve allegations of unnecessary procedures and other problems. The Justice Department focus on these cases isn’t on the potential health problems caused but on the financial losses to Medicare. Patients who had unnecessary procedures may not be notified and no determinations made if unnecessary injuries occurred.
One problem with settling such cases out of court is the public never sees the details. This is particularly disturbing when there are allegations of unnecessary services being rendered. So what should be done instead? The transparency movement in medicine has frequently focused on reporting of results of specific medical personnel but transparency for hospitals and nursing homes that control medical safety policies that may influence many patients is also an important step. Policies that influence whole systems can have a greater influence than a single individual.
However, quality fraud is seldom prosecuted even though the disastrous effects of ignoring such problems have led to a scandal in Britain where it’s estimated that nearly 1,700 patients died.
One possibility is to have unannounced safety inspections. Through the Centers for Medicare and Medcaid Services (CMS), such inspections are supposed to occur but the unannounced inspections are telegraphed in several ways. First, there is a time frame given and hospitals within certain regions are inspected one after the other so hospitals usually know when such inspections will occur within a period of several weeks. The results of these inspections are usually only partially made public and the inspections have rarely led to serious fines or penalties.
The focus of such hospital inspections has also been criticized. The inspections don’t take a quality improvement approach but rather attempt to find specific wrong doing or failures to comply with regulations. The problem is that such inspections by their very nature can’t be comprehensive. The inspections have also been criticized for not making the results public. In fact, states have attempted to block access to hospital complaints.
Experts have suggested that the US health care system should adopt quality control inspections similar to the approach taken by the Air Traffic Safety Commission. Using this approach when a mistake is made, an investigation doesn’t just stop at the hospital level. Rather, the information should be made available nationally and outside inspections focus on understanding the root causes of problems. In the current system, the identification of such problems and potential solutions are done on a piecemeal basis that relies upon hospital administrators.
Instead, anyone should be able to make a complaint to the national board that could make decisions about what problems to follow-up on. Such boards should include patient representatives and not be dominated by medical insiders or politicians. When good solutions or problems are discovered, the solution can be taught to other hospitals. When hospitals perform poorly, they can receive training from hospitals that perform better or from other experts. Such a quality improvement approach has worked well in many industries and not only leads to higher quality results but can lower costs.
Instead, the justice system has focused on financial fraud within the health care industry. The extent to which necessary services are not being provided is simply unknown but there are plenty of reasons to expect that such problems are prevalent. In the U.S., efficiency experts frequently encourage medical personnel to spend less time with their patients and to perform more procedures in less time. Those who can’t improve productivity risk financial and job loss. Such incentives against quality shouldn’t be the part of any safe health system. Nursing unions frequently negotiate for lower patient to nurse ratios because they believe high ratios are unsafe and stressful because nurses are afraid they will not have enough time to treat everyone. In fact, this was identified as a core problem in the British scandal.
Health experts argue that reimbursement based on benefit to the patient both at the hospital and provider level would also help resolve these problems. The Affordable Care Act begins to move in this direction by requiring that a high percentage of insurance company money go to direct patient care.
Government Alleges Skilled Nursing Facility Billed for Medically Unnecessary Therapy
Fairfax, Va.-based skilled nursing facility Fairfax Nursing Center (FNC) and its owners have agreed to pay $700,000 to resolve allegations that they violated the False Claims Act by knowingly submitting or causing the submission to Medicare of false claims for non-reimbursable rehabilitation therapy services, the Justice Department announced today.
The settlement resolves claims that FNC provided excessive, medically unnecessary, or otherwise non-reimbursable physical, occupational, and speech therapy services to 37 Medicare beneficiaries serviced by FNC between January 2007 and December 2010. The United States alleged that the rehabilitation therapy services provided by FNC to these beneficiaries were not reasonable and necessary for the treatment of their condition. Specifically, the United States alleged that the therapy services were often excessive, duplicative, performed without clear goals or direction, and, in some instances, performed primarily to capture higher reimbursement rates.
“Today’s settlement is another example of the Department’s efforts to hold skilled nursing facilities accountable for the rehabilitation therapy services they deliver to some of the most vulnerable in our society,”
said Stuart F. Delery, Principal Deputy Assistant Attorney General for the Civil Division of the Department of Justice.
“The provision of excessive and medically unnecessary therapy services will not be tolerated.”
“Medicare fraud takes many forms and arises in various segments of health care,”
said U.S. Attorney Neil H. MacBride.
“We continue to work toward recovery of money lost to overbillings to Medicare.”
This resolution is part of the government’s Health Care Fraud Prevention and Enforcement Action Team (HEAT) initiative, which was announced by Attorney General Eric Holder and Kathleen Sebelius, Secretary of the Department of Health and Human Services in May 2009. The partnership between the two departments has focused efforts to reduce and prevent Medicare and Medicaid financial fraud through enhanced cooperation. One of the most powerful tools in that effort is the False Claims Act, which the Justice Department has used to recover nearly $10.2 billion since January 2009 in cases involving fraud against federal health care programs. The Justice Department’s total recoveries in False Claims Act cases since January 2009 are over $14 billion.
The allegations settled today arose from a lawsuit filed by two former FNC therapists and one former contract therapist under the qui tam, or whistleblower provisions, of the False Claims Act. Under the False Claims Act, private citizens can bring suit on behalf of the United States and share in any recovery. The whistleblowers in this case will receive, collectively, $122,500 of the recovery. The lawsuit is captioned as United States of America & Commonwealth of Virginia ex rel. Christine Ribik, Nadine Kelly, & Stephanie Beauregard v. Fairfax Nursing Center, Inc., et al. , No. 1:11-cv-496 (E.D. Va.).
The claims settled by this agreement are allegations only; there has been no determination of liability.
by Todd Miller
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