Provider on Provider Whistleblowing - No Need To Apologize

By Monica P. Navarro*

Nothing is more frustrating to a healthcare provider who works hard to comply with the law than to find himself undercut by a competing provider who does not. How is the good provider supposed to compete fairly in today’s regulatory environment when his competitors cheat? He simply cannot. The good provider may need to turn to whistleblowing.

Yes, I know I sent a chill down your spine with that suggestion. But provider on provider whistleblowing is a reality which, frankly, requires no apology in today’s environment of shrinking healthcare dollars and narrow margins. Providers who don’t play by the rules should be outed. And rightfully so.

Take the case filed by Baltimore-based Ameritox, who sued Millennium Laboratories in April of 2011, citing unfair competition for Millennium’s practice of providing physicians with free point-of-care test cups in order to secure their business. At trial, Ameritox presented evidence that Millennium gave its customers at least 750,000 free cups through 2013 alone, amounting to millions of dollars in giveaways. The evidence also showed that Millennium provided the free goods only if the physicians sent Millennium the urine specimens and agreed to have Millennium conduct a minimum number of tests on each specimen, thus driving up costs for payors and profits for Millennium. In June of this year, the jury decided the key contested issue in the case, finding that Millennium provided the free cups in exchange for business in violation of federal Stark and Anti-kickback laws and awarded Ameritox $14,775 million in damages.

When asked to explain the reason for blowing the whistle on Millennium’s practices, Scott Walton, chief executive of Ameritox, stated: “All Ameritox wanted was a level playing field…The ruling underscores our belief that the significant health-care challenges facing our country require steadfast adherence to the highest compliance standards, ethical business practices and quality of service.”

So there you have it. Ameritox couldn’t compete with Millennium’s kick-backs. So it blew the whistle and won.

For far too long, a code of silence has curtailed integrity and fair competition in the healthcare sector. In our own community of Southeast Michigan, it is that code of silence that has allowed the Dr. Fatas of the world to hurt patients and rip off payors. And by that I mean that people knew about the now-infamous Dr. Fata, but turned a blind eye for years. In fact, when the news about Dr. Fata broke, a number of healthcare professionals who knew him or knew of him professionally told to me and others that they “knew it all along.” So the question that one must ask is “why wasn’t Dr. Fata exposed sooner? " I think one big reason is that people in healthcare fear breaking the code. That must end.

Integrity and fair competition are not dirty words. Neither is exposing corruption and fraudulent behavior by others, even when they are peers or competitors. How else will the healthcare sector rid itself of bad players so that good providers - which abound - can compete fairly in the healthcare space? Business-driven integrity, a term coined by Neil Getnick (Chairman of Taxpayers Against Fraud) is the only code we need.

*Monica P. Navarro specializes in healthcare law and related litigation, including fraud and abuse (qui tam), as well as full physician/allied health, supplier, and payor representation. She has extensive experience in false claims act cases brought on behalf of payors, healthcare entities, and healthcare professionals. She can be reached at mnavarro@vezinalaw.com