By Karla Bowsher, BrowardBulldog.org 
A whistleblower apparently sparked the ongoing federal anti-kickback inquiry into allegations of false Medicare and Medicaid claims at Broward Health.
U.S. Department of Health and Human Services (HHS) agents surfaced the probe in May 2011 with a subpoena demanding records related to the public health care system’s business dealings with more than two-dozen doctors.
“We have reason to believe there’s a whistleblower,” said Broward Health General Counsel Sam Goren. He explained that belief is “based on the nature of the subpoena and its substance,” as well as the experience of Broward Health’s Washington, D.C. lawyers.
Under the False Claims Act, private individuals with knowledge of fraud against the government can blow the whistle – and seek rewards – by filing a lawsuit on its behalf. By law, such lawsuits are brought under seal to allow the Department of Justice time to investigate and decide whether to help prosecute the lawsuit.
An HHS official declined to say whether a whistleblower is involved in the Broward Health case.
BrowardBulldog.org, however, has learned that HHS agents are conducting the current civil inquiry jointly with the Department of Justice in Washington, D.C. and the U.S. Attorney’s Office in Miami.
Does that mean there is a parallel criminal probe? “Not to our knowledge,” said Goren.
Millions of pages of district documents have beenhanded over to federal authorities, Goren said. He explained it took so long because the district’s lawyers sought to limit how much information had to be turned over.
Broward Health, whose legal name is the North Broward Hospital District, did not finish producing all of the subpoenaed records until last month.
SUBPOENA SERVED
The 15-page subpoena from HHS’ Office of Inspector General (OIG) demanded Broward Health’s records concerning its contracts, negotiations and agreements with 27 doctors and one doctor-run business, North Broward Orthopedic Associates.
The kinds of documents sought included tax returns, financial data and other information regarding compensation, patient referrals and hospital admissions by the 27 doctors since January 2000.
The subpoena also required Broward Health to produce proof that it had taken steps, like employee training, to ensure that federal anti-kickback laws were not violated.
State corporate records state that North Broward Orthopedic Associates was run by physicians Michael Abrahams and Sein Lwin, and was involuntarily dissolved in 2008 when no annual report was filed.
“I just happened to be the representative for the group,” said Lwin, one of the 27 doctors named in the subpoena. “It has nothing to do with my practice.”
Broward Orthopedic Associates’ contract with Broward Health ended more than five year ago, Lwin said, and he had not been served a subpoena himself.
Lwin is one of six orthopedic surgeons named in the subpoena. Seven other physicians are cardiologists or chest surgeons – the most common specialty among the 27 identified.
Cardiologists generally treat more Medicare patients than other types of specialists because cardiac problems are common among the elderly.
Most of the doctors named in the subpoena – 18 – belong to the Broward Health Physician Group, meaning they are district employees rather than independent doctors in private practice.
INVESTIGATION ONGOING
The tax-subsidized Broward Health has hired the Arent Fox law firm to represent it in the matter. Attorneys Linda A. Baumann and Jacques Smith specialize in false claims issues. Both declined comment because the investigation is ongoing.
Alicia Valle, spokeswoman for Miami U.S. Attorney Wilfredo Ferrer, declined to comment.
Agent Omar Perez with the HHS Office of Inspector General’s Miami Lakes regional office declined to discuss specifics of the inquiry.
“We’re still … inquiring whether there’s some substance to the allegations that were raised,” he said.
By law, whistleblower lawsuits filed under the False Claims Act must remain under seal for 60 days. If the government wants to keep it sealed after that, it must demonstrate “good cause” to a judge every 60 days
PROGNOSIS UNKNOWN
If Broward Health submitted false or otherwise improper insurance claims to Medicare or Medicaid, the district could be in violation of the federal Anti-Kickback Statute or the Stark Law.
The Anti-Kickback Statute prohibits offering or receiving incentives for patient referrals that involve any federal health care program, such as Medicare and Medicaid.
Criminal offenders can be sentenced to up to five years in prison and fined up to $25,000 per violation. Civil penalties can include fines of up to $50,000 per violation.
The Stark Law, also known as the Self-Referral Law, prohibits doctors from referring Medicare patients to entities, such as hospitals, to which they have financial ties. It also prohibits those entities from billing Medicare for such referrals.
Violators can be required to refund illegal payments and pay civil fines up to $15,000 per violation.
Broward Health commission Chair Joel Gustafson did not respond to interview requests.
Broward Health Chief Executive Frank Nask, through attorney Goren, declined to comment because the investigation is ongoing.
Karla Bowsher can be reached at [email protected]
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