Thomas M. Greene Testifies Before Congress on Fighting Health Care Fraud

On February 27, Greene LLP Partner Thomas M. Greene testified before Congress at a committee hearing entitled “Fostering Innovation in Fighting Health Care Waste, Fraud, and Abuse.”  Greene was called to testify because of his over twenty years’ experience representing whistleblowers, as well as his experience representing health insurance plans, Taft-Hartley Funds, and self-insured employers in health care litigation.

Greene drew on his experiences in False Claims Act litigation and private health insurance cases to answer several questions from members of the House Subcommittee on Health.  He first touted the success of the False Claims Act.  “The False Claims Act is a dynamic fraud-fighting machine,” he said, hailing the fact that the False Claims Act allows whistleblowers to pursue cases if they wish, even if the government does not intervene.  He noted that declined cases can foster innovation.  “When I filed the first off-label promotion False Claims Act case in 1996, government attorneys were not convinced of the viability of that theory,” said Greene.  “But once that case was settled in 2004, it set a precedent that kicked off $14 billion in other recoveries.”

Greene noted that in health care, “qui tam [whistleblower] cases outnumber government-initiated cases about five to one,” before giving a few representative examples.  “Health care cases do come in many forms.  You might have hospitals or nursing homes upcoding claims to get higher reimbursement rates, or billing for services not actually performed.  Laboratories, causing billing for unnecessary tests, or again for tests not performed.  There are cases based on violations of the Anti-Kickback Statute, or the Stark law, with doctors getting illicit payments or benefits, or lucrative self-referrals.  Durable medical equipment companies, billing for equipment that was never delivered.  And you could also have medical supplies be the basis of actionable fraud.  One of my cases, that actually got unsealed last month, involves unnecessary deliveries of oxygen supplies.”

Greene’s trial team is also the only one to have won a RICO case against a pharmaceutical company, winning $142 million for Kaiser Foundation Health Plan in 2010 for damages from fraudulent off-label promotion of Neurontin.  Greene noted that RICO was only available as an avenue of recovery for private payors when those who commit fraud form into RICO enterprises, as Pfizer had with other firms in the Neurontin litigation — but that frauds committed by one organization could be just as egregious.  He urged Congress to consider giving private payors a right of action to sue for health care fraud.  He testified that “it is possible that the government will be able to recover through the False Claims Act — but there is currently little that a private payor can do to recoup their own losses.  Without a right of action for even the most egregious of frauds, it is the public that eventually foots the bill through the increase of insurance premiums.”

A full version of Greene’s testimony is available here.

To view Thomas M. Greene’s opening statement, cue the video below to the 1:50:40 mark.

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