Healthcare Fraud in Oklahoma

This is the second part of an interview of Wayne Allison by Tony Munter. Click here for Part 1.

Tony: You got into this from healthcare. I assume most of your cases are healthcare related. Are you seeing a significant amount of healthcare fraud in Oklahoma? Are you seeing it in nursing homes, and medical devices, in hospice centers? Are you seeing the mix that I guess we’re seeing everywhere else that’s vulnerable?

Wayne: I think you have the same mix. You have a lot of rural healthcare providers. You have a few big health care facilities in the two larger population areas, Oklahoma City and Tulsa, but there’s 3.6 million people and a good 1.5 to 2 million of them are in rural settings or near rural settings. There are a lot of rural providers. I think the level of sophistication is limited with regards to a rapidly increasingly compliance environment. There is the meaningful use electronic health record incentive program, which has been going on for a couple of years. The Feds budgeted about $16 billion in incentive money. I think they have (last time I saw) spent over 28 billion and what that means is in fact, there were nearly 500,000 medical providers that attested to meeting all the compliance requirements and therefore being worthy of receiving this free money from the federal government. I’ve now begun to see news releases of folks getting rung up under the False Claims Act for falsely certifying those attestations and taking those federal dollars. My suspicion in Oklahoma is you have a lot of rural folks that have not fully implemented what they should have, but they might have attested. I don’t know that this is too different than in other states, but my suspicion is there’s a bunch of that unlike other areas of the country where you have lots of government contractors of all kinds. You have ship builders, and airplane builders, and everything else. Oklahoma doesn’t have that much. So, the concept and basic knowledge of the False Claims Act, and qui tam, and whistleblower law is still very new and novel here. I think part of the exercise is how you get the folks that would be potential relators to understand and know what they’re looking at.

Tony: I still see that in DC, which you would think would be very attuned to this sort of issue. I can understand in an environment that when there have not been very many cases why potential relators would not know that they necessarily have this action. I imagine you get your clients mostly the old-fashioned way. They complain to the boss and they get fired and they don’t know what to do.

Wayne: There are a couple of things that I think will change that slowly. One is a federal directive, which is if you participate in Medicare or Medicaid as a provider, or Tricare, or any government payer, you are required to educate your staff on the False Claims Act and the whistleblower, qui tam provisions. In fact, if you are a Medicaid Advantage provider, the Medicaid Advantage is basically a third of the total population of Medicaid, the requirements are even more so that you have an anonymous reporting mechanism built in to your organization and you have to have multiple layers of training for different types of employees. So, little by little, healthcare employees are being exposed to training programs and education on the False Claims Act. In order to maintain your status as a Medicare, Medicaid provider, you’re supposed to provide this training every year to all your employees. You’re supposed to keep the records of all the employees’ attendance. You’re supposed to keep those records for 6 years. So, if you find yourself under review for whatever reason, you’re supposed to be able to demonstrate that you have taught all your people about the False Claims Act annually. How much of that is happening? I don’t know. But I know that’s what’s supposed to happen. The other thing that I do is I provide a fraud abuse False Claims Act overview to some of the local colleges in their nursing programs, medical assistant programs. I go over what they’re supposed to get when they begin working for a medical provider. I go through that for these local colleges and at least there are people who are exposed to it and have some ideas of what do because if you find yourself in a situation as a relator and you’re questioning your boss, it is often a very scary proposition.

Tony: In some environments, it’s possible for a nurse to go from job to job very easily. But, of course, nobody ever wants to put their job on the line.  It can be a very scary situation. I guess I was going to also ask you just because the state law is limited to healthcare doesn’t mean that the Federal Law as it applies to Oklahoma is limited. You have the capacity to sue if federal funds are at risk for other programs that happen to impact within the jurisdiction of Oklahoma. Have you come across any cases that fit that description and are people filing False Claims Act cases in Oklahoma outside of the area of healthcare, I mean to the extent that you can talk about something that’s not under seal.

Wayne: Yeah. I can tell you as far as generally describing without disclosing anything that’s under seal or anything too much detail as far as under investigation, there are many, federal programs that pump dollars into the states and they can be for facilitating transportation of wide varieties, trains and vehicles, and planes, and anything else, DOT and DOE programs, and housing and urban development programs. The trick is finding the documentary trail to connect the federal dollars to the state. These come in the form of loans, low interest loans, loan guarantees, and grants. So, there are a number of avenues that federal dollars flow in to Oklahoma and are used on the face of whatever the project is as they’re purely state projects or even a steady municipal project. I know that there is activity in those arenas because I’m involved with some of that activity. So, compared to healthcare, you know, it’s the minority, less than a third of the cases that I investigate fall under that general description. They present a little bit more difficulty because I have to figure out something that I’m not as familiar with as the healthcare arena, but clearly those federal dollars are traceable down to local municipal projects.

Tony: There’s nothing about Oklahoma that makes it less susceptible to fraud than anywhere else I assume? So, you have at least some business to deal with at all times. Is that fair to say? I mean, it’s not that Oklahoma is any cleaner or dirtier than anywhere else with respect to spending federal or state money?

Wayne: I know we have a lot of churches. We have a lot of banks and we have a lot of guns, but I don’t think any of that and notwithstanding the folks walking around with the Bible in one hand and a gun in the other, I don’t think that makes them any less susceptible to motive to scheme to try to rip the government a little bit here or there in whatever form or fashion it may be.