Will the HHS Release of the Medicare Treasure Trove Lead to More Healthcare Fraud Lawsuits? Will the HHS Release of the Medicare Treasure Trove Lead to More Healthcare Fraud Lawsuits? Will the HHS Release of the Medicare Treasure Trove Lead to More Healthcare Fraud Lawsuits? It's likely. Reuters reports that attorneys specializing in whistleblower healthcare fraud cases are mining the data for clues about potential fraud.

Using data mining techniques to find fraud is not new. The Medicare Fraud Strike Force has been using these analysis techniques - along with trend evaluation and modeling - for some time. During a speech at the Los Angeles Health Care Fraud Prevention Summit in 2010, for example, Lanny A. Breuer, Assistant Attorney General for the Criminal Division, told the audience that:
In 2007, the Criminal Division of the Justice Department refocused our approach to investigating and prosecuting health care fraud cases. Our investigative approach is now data driven: put simply, our analysts and agents review Medicare billing data from across the country; identify patterns of unusual billing conduct; and then deploy our "Strike Force" teams of investigators and prosecutors to those hotspots to investigate, make arrests, and prosecute. And as criminals become more creative and sophisticated, we intend to use our most aggressive investigative techniques to be right at their heels. Whenever possible, we actively use undercover operations, court-authorized wiretaps and room bugs, and confidential informants to stop these schemes in their tracks.[1]
And the big data analysis techniques are working. In 2012, several individuals allegedly involved in a $375 million home health fraud scheme were indicted in the Northern District of Texas. HHS Inspector General Daniel Levinson commented that they were discovered by the use of "data analysis [allowing the investigators to] target suspicious billing spikes." Levinson explained that, “[i]n this case, our analysts discovered that in 2010, while 99 percent of physicians who certified patients for home health signed off on 104 or fewer people Dr. Roy certified more than 5,000."[2]

But, with the release of the Medicare billing data to the public, now plaintiffs' lawyers have access to the data as well. Given the possible recoveries, it's no surprise:
A whistleblower who prevails gets up to 30 percent of whatever the government recovers, and 40 percent of that reward typically goes to the whistleblower's lawyer.

Whistleblower cases can result in huge settlements, such as the $3 billion GlaxoSmithKline paid in 2012 to resolve claims that it promoted drugs for unapproved uses and failed to report certain safety data.[3]
As explained by Reuters, the whistleblower lawyers are doing the same thing that the government is doing in it's analysis - looking for doctors whose billing practices are outside the norm to bolster existing cases:
By Thursday, Pennsylvania lawyer Marc Raspanti was having a ball. Raspanti said he spent six hours combing through the data. He has several Medicare fraud lawsuits pending against pharmaceutical companies alleging kickbacks to certain doctors.

Raspanti is analyzing the data, he said, to see if doctors are prescribing an unusually high amount of the pharmaceutical company's products. If so, he said, that could bolster allegations that something is amiss.[4]
In undertaking this analysis, however, attorneys are likely find new cases. Additionally, practice managers, pharmaceutical sales managers, nurse practitioners, and others who have a suspicion that something may be amiss in a practice, with their employer, with a pharmaceutical relationship, can now themselves use the database to investigate. This data release will likely lead to additional healthcare fraud cases and bolster whistleblower claims.

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[1] Press Release, Department of Justice, Assistant Attorney General for the Criminal Division Lanny A. Breuer Speaks at the Los Angeles Health Care Fraud Prevention Summit, Speech, Aug. 26, 2010, available at https://www.justice.gov/criminal/pr/speeches/2010/crm-speech-100826.html (last visited April 19, 2014).

[2] Press Release, Department of Justice, Dallas Doctor Arrested for Alleged Role in Nearly $375 Million Health Care Fraud Scheme, Feb. 28, 2012, available at https://www.justice.gov/opa/pr/2012/February/12-crm-260.html (last visited April 19, 2014).

[3] Terry Baynes, Lawyers Start Mining the Medicare Data for Clues to Fraud, Reuters, April 14, 2014, https://www.reuters.com/article/2014/04/14/us-data-idUSBREA3D05820140414.

[4] Id.




Posted by Tatiana Melnik April 19, 2014.