Whistleblower News & Articles
September 24, 2019
It is both interesting and fun to be interviewed by television news reporters about a story, genetic testing fraud, that closely aligns with work one is doing. It’s exciting to perform important newsworthy work and to be trusted as a source of expertise.
Last week’s CBS News expose of genetic testing fraud against Medicare was wonderful in that way. We are well-acquainted with a variety of scams involving genetic testing fraud against Medicare. With that immersion comes a certain amount of understanding of what’s going on and why this area is so hot.
Medicare initiated coverage for genetic testing for certain forms of cancer only a couple of years ago, and now there is a flood of underhanded actors trying to get in on easy money schemes. CBS News did a great job outlining how genetic testing fraud works. Criminals sucker a vulnerable population into giving up their Medicare number and a saliva swab.
The marketers then parlay that information into money one way or another. They do this by getting a doctor to certify expensive testing as medically necessary. The marketers then sell the DNA and identifiers to genetic testing labs in exchange for a kickback – a cut of the profits. Nasty business. These fraudsters create havoc in an otherwise important new field of genetic diagnostics and burden the government with enforcement distractions.
CBS News did an impressive job of uncovering the problem and raising awareness of it. The piece, however, was not focused on exploring solutions. And, as is often the case with government agencies, CMS, the Center for Medicare and Medicaid Services, which administers the Medicare program, reportedly did not want to answer CBS News’ questions about genetic testing claims on camera. Thus, viewers may have been left with the impression that the government was not doing anything to prevent these scams or that it could be solved by adding a couple lines of code to claim review software. This, however, is not the case.
The government issued multiple fraud alerts on this issue. They tell seniors not to agree to genetic testing without the involvement of their own treating physician. Moreover, DOJ is prosecuting several individuals and entities as we speak. Law enforcement’s response has been swift and is ongoing.
CMS processes millions claims a month from all manner of providers. It cannot efficiently determine whether a claim is fraudulent on its face, in the absence of extreme circumstances. Any simplistic code will block many meritorious claims while it weeds out some (but not all) fraudulent ones. CMS would face a crippling backlash if it failed to timely pay providers for legitimate claims. The most that better software could do for the government is identify compelling leads to investigate. Artificial intelligence (“AI”), if used properly, can identify patterns and targets to pursue. But it cannot, without more, make a definitive determination. Especially because providers file millions of claims each day and the system only functions if the government pays promptly. AI can comprise the beginning of the solution but not the end.
Whistleblowers are part of the answer. They can bridge the gap between the suggestions posed by data and the need for solid evidentiary proof in a court of law. Where AI can identify interesting patterns, insiders who come forward as whistleblowers can tell investigators what the patterns mean. They can provide the “who, what, when, where, and how” of the fraud generating improper claims for payment. The CBS News story illustrates this. CBS News started with certain seniors not receiving test results. Subsequently, it investigated undercover, dove deep with a former employee who courageously agreed to be interviewed, and consulted with an expert (me) to understand how the fraud and payment scheme worked.
CMS and government law enforcement agencies – and whistleblowers – are in fact doing a lot about this problem. We should not blame the government or citizen victims. We should keep our attention squarely on the fraudsters. They are the ones to blame.
Hopefully Medicare patients, like the ones interviewed in the show, will recognize the seriousness and cost of the scam exposed by CBS News. Whistleblowers will continue to come forward to help the government prosecute the bad actors.
Scammers trick seniors into giving up their DNA and sell that information to labs leaving the taxpayers with the bill and the seniors left out in the cold. That is not right.
Jun 25, 2020The Massachusetts U.S. Attorney’s Office announced that it will sue drug manufacturer Regeneron Pharmaceuticals for health care fraud. The False Claims Act complaint alleges that Regeneron paid tens of millions...
Feb 18, 2021One of the more astute things I learned from an experienced lawyer as I was coming out of law school three and a half decades ago was this: It’s much...
Jul 14, 2020As whistleblower lawyers and former prosecutors, we have seen a lot. One of the most enjoyable aspects of both of those roles is the wide (and wild) variety of “fact...