INDIANA FALSE CLAIMS

Approximately ten years ago, Indiana created the Indiana False Claims and Whistleblower Protection Act.  The Indiana Act is very similar to the federal False Claims Act (FCA).  The Indiana statute contains some of the same advantages and disadvantages of the federal FCA.  For example, a person is liable who submits a false claim “knowingly or intentionally”.  As with the federal Act, there is little or no definition of “intentionally”.  Since this is presented as an alternative to knowingly, it raises a significant question of how one could intentionally submit a false claim without knowingly doing so.

The damages are also different.  The Indiana Act provides only for a civil penalty of $5,000 per violation which can be trebled.  Also, there is no maximum penalty and there is a provision for reducing the damages under certain circumstances, including cooperation with the investigation or voluntary disclosure.

There do not appear to be any reported cases on the Indiana False Claims Act, and it appears that it has rarely been utilized.  Apparently, the federal Act’s allowance of $11,000 per claim has convinced whistleblowers to primarily use that statute.

LET’S JUST USE MONKEYS

Recent reports, including that published recently in JAMA, indicate that legally required usability testing is not being undertaken and documented properly for EHR vendors.  Reports indicate that nearly 20% had not filed public reports on usability which are required by law, and of the ones that were on file, a third of those failed to follow the requirements for certification.  In the sample reviewed, two-thirds of the vendors had fewer than 15 participants in user testing, for an industry that has taken in, literally, billions of dollars in sales.  In some cases, no physicians were utilized in physician order entry testing.

If you are a physician working with EHR and wonder why a particular system doesn’t seem to have any relationship to what you should be doing, the fact that the EHR vendors did not use any physicians in the design or testing may help answer your question.

IS YOU IS OR IS YOU NOT?

Prosecutors claim that a physician’s assistant, rather than a surgeon, conducted nearly two dozen orthopedic operations leaving patients scarred and damaged.  Again, according to the prosecutors, over $150MM was involved in a scheme that included illegal referrals of patients, payments of $10,000 a month to referral sources, falsified MRIs and other records, and the ultimate, an unqualified physician’s assistant performing orthopedic operations.

But it gets better, the doctor’s office manager and personal assistant (a “female James Bond”) had been acquitted by a jury in 2013 of strangling a 21 year old women whose father had had business dealings with the surgeon at the center of this alleged scheme.  In total, 11 defendants appeared recently for pleas and bail hearings that included Dr. Uwaydh, Dr. David Johnson and others, including, in a separate indictment, Uwaydh’s attorney, Tatiana Torres Arnold.  The prosecutor’s claimed that more than $150MM was fraudulently billed to insurance companies, and included 132 felonies.

One of the interesting questions not answered by this report is where or what facilities were used for the surgeries not undertaken by a surgeon, but rather by the physician’s assistant.  One can expect that if these surgeries occurred in hospital owned facilities, that the hospitals will be named for failure to confirm that a qualified physician was performing the surgery.

This newsletter is edited by Paul Wallace of Jones ∙ Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians, practices and hospitals in contract items, federal legal compliance, practice entity creation, estate and wealth planning and similar issues.  Please feel free to call if you have any questions on this newsletter or legal matters at (812) 402-1600 or pwallace@joneswallace.com.