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Data Whistleblower Case Raises Question of What is a Public Disclosure

Posted  February 21, 2019

As regular readers know, we have been closely tracking the progress of data analysis firm Integra Med Analytics’ whistleblower lawsuit under the False Claims Act against Providence Health and its consultant J.A. Thomas and Associates, Inc. (JATA).  The case alleges a conspiracy between Providence and JATA to upcode for specific Major Complications or Comorbidities (MCCs).

This case is part of a growing number of cases initiated by data analysis firms-turned whistleblowers.  These firms review the mountains of Medicare claims data CMS has made publicly available, looking for patterns that are indicative of fraud.  Then, they work to develop independent, non-public information confirming that the patterns were a product of fraud and cannot be explained away by a competing, innocent explanation.

In this case, whistleblower Integra alleges that it analyzed seven years’ worth of CMS claims data for a subset of Providence hospitals that used JATA as a consultant.  They found that those Providence hospitals were statistically more likely than other hospitals to add three secondary diagnoses/MCCs: encephalopathy, respiratory failure and malnutrition.  These diagnoses can increase a hospital’s Medicare payments by $1,000 to $25,000 per claim.

According to its complaint, Integra also conducted what it describes as an exhaustive, multi-faceted investigation, interviewing former employees of Providence and JATA and reviewing available documents to show that the coding was part of a systemic effort to boost Medicare revenue.  Integra’s complaint is replete with references to internal documents allegedly containing examples of JATA coaching and steering Providence doctors to upcode in the manner seen in the data.

Last week, federal judge Philip Gutierrez heard oral argument from the parties on defendants motions to dismiss Integra’s whistleblower case.  Defendants’ primary argument is that Integra’s lawsuit is precluded by the public disclosure bar of the False Claims Act.  The public disclosure bar seeks to prevent parasitic whistleblowers who simply read about a fraud scheme in the press from filing a case and sharing in the government’s recovery.  A whistleblower case that is based on information already in the public domain may be dismissed unless the whistleblower is the original source of the information.

Defendants argue that Integra has simply repurposed publicly available Medicare claims data.  Integra argues that it has supplied ample non-public information in the form of internal JATA documents and statements from former JATA employees demonstrating that the alleged upcoding was part of an intentional effort to improperly boost Medicare reimbursement.

After hearing the parties’ arguments, Judge Gutierrez issued an order asking the parties to provide supplemental briefs on issues that had arisen from the oral arguments.  Judge Gutierrez noted that he was not convinced by Defendants’ argument that all information available on-line has been “publicly disclosed” by “news media” in such a manner that a claim is subject to the public disclosure bar.

In an era where journalism has moved on-line and news websites of unknown origins proliferate, with corporate outlets masquerading as objective journalism and social media platforms giving individuals and organizations the opportunity to self-publish, it can be difficult to determine where to draw the line between a public disclosure which the Government can be expected to have taken notice of, and information that can be relegated to the general background noise of the internet.

Judge Gutierrez, who is clearly grappling with this question, has asked the parties to provide further briefing on where the line should be drawn. The parties’ supplemental briefs are due on March 8, and the judge may rule by the end of March.

A version of this article by Constantine Cannon whistleblower attorney Mary Inman first appeared on RAC Monitor.

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Tagged in: Court Decision, FCA Federal, Healthcare Fraud, Hospital Fraud, Public Disclosure and Public Information, Upcoding, Whistleblower Case,