Episode 124:
Inside the Whistleblower’s World: What Compliance Needs to Know 

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Episode Transcript

Hello, everybody. Welcome to another episode of Compliance Conversations. My name is CJ Wolf with Healthicity. And I am so excited for today's episode. The guests are absolutely wonderful, and I think the topic is something you'll be very, very interested in. So um let me welcome our guests. Elin Kunz and Jackie DeMar. Welcome to both of you. Thank you for being here. Thanks for having us. Absolutely. And um, before we jump into this important topic, I would love for each of you just to take a moment and maybe share a little bit about yourself and uh your maybe your background and and what you're doing today. Maybe we'll we'll start with Jackie and then uh Elin, if that's okay.

Sure. Thanks again for having us. Um my name is Jackie DeMar. I am the president and CEO of the Anti-Fraud Coalition. Um, and so we're an organization that is kind of um we support whistleblowers, whistleblower laws, and their attorneys. And so we have a membership, we're a membership organization of about um 400 attorneys that are um bringing cases on behalf of whistleblowers in you know in the healthcare sector under the False Claims Act, as well as in the against fraud in the financial markets. Um, and so we also we support our members by keeping them educated about um the law and about you know any updates to the law. We also uh advocate on the Hill to protect the laws and to get you know new laws passed that are um pro-whistleblower. Um, we also support whistleblowers by providing resources for them during their cases and also afterwards, because being a whistleblower is extremely hard, as you know, um, and as Elin will speak to. Um, and so we want to be supportive of whistleblowers when their case is over, provide uh resources for them as well. Um, and then we also educate the public through our blog, and we also have a podcast and um our website, which puts out as much information as we can about what's going on in the law. Um, and I've been here for uh about 11 years now. I started off um as just a staff attorney here. Um I got out of law school actually, um not knowing exactly what I was gonna do. I went, I was actually went to a big firm where I wasn't expecting to do um that. I was expecting to go into the public sector. Um, and then you know, you have all this law school debt and you say, why not? Um and so, but I actually ended up doing False Claims Act work um on the defensive side. And I really loved it. I thought it was so interesting, but I didn't want to be defending these corporations. Um, so I actually found this organization that just does this work, but on the plaintiff side, um, and I thought, oh my gosh, this is perfect for me. So um I started off as the staff attorney and I worked up to the director of legal education, which really puts on our conferences and our other educational um kind of things. And then um now I've been president for about a year and a half now, and I really love it. Um, so that's what I'm doing.

That's wonderful. Well, thank you so much for sharing a little bit about yourself and uh Elin, welcome to you as well, and so grateful that you're here.

Thank you. Thank you for the nice introduction. So um for the last 11 years, I worked as a testifying expert in the billing and coding side, um, both on the defense side and in fraud cases on the plaintiff side. Really love that work. And I'm not an entrepreneur, so I didn't start my own business because you know I wanted to do this. I started my own business because I was a whistleblower 11 years ago. And as you know, you can't work after that. So um I actually, prior to that, I would worked 20 years for a large health system, which is where I was the whistleblower. And my last eight years, I was in um I was director of physician services. And prior to that, I worked in the compliance department where I did audits and coding and billing. And also during that time, I I think I spent eight years teaching the in-person workshops for the American Academy of Professional Coders. So strong passion for the billing and coding side. And as you know, when you work in compliance, when you come across fraud, the thing to do is really, if you can't change it, is to resign. However, you lose that opportunity when you work somewhere for 20 years, because no matter how bad you think it is and you want to leave, it's gonna follow you. So then you're kind of faced with the choice. Do you are you the one who speaks up, or do you wait for someone else to do it and then you hire an attorney to defend yourself when you're under the bus? So those were kind of that's why I call my choice the choiceless choice.

Yes.

And um, I'm excited to have Jackie here with me today because during my journey, which lasted over five years as a whistleblower, the anti-fraud coalition or taxpayers against fraud that it was called back then was such a great resource for me. And they were also the resource for me when I knew I needed to see an attorney. You know, when you work in compliance, you know that you're not supposed to go to a you know, personal attorney. You need someone who really understands the space. And I was able to use the anti-fraud coalition's website to look at cases, look at attorneys what have settled these cases. And it was just such a great resource. And that's also I'm on their board today. I'm very passionate about they do, you know, it's you know, it's a good place to go. And when I first reached out to look for an attorney, I wasn't looking for an attorney so I could file a lawsuit. I was looking for an attorney that could tell me, no, this is not that bad. You can leave and everything's gonna be okay. And right that didn't happen. And I I was actually very angry that I was the one who had to do someone. I felt like someone else should have done what I did. So, anyway, that's our connection with TAF and um, you know, why I think it's so important that people are aware of what they do.

Yeah, well, thank you so much for sharing that. And we're excited to hear a little bit more about your personal experience and journey. And uh, before we get to that part of it, uh, we'd love uh for Jackie, maybe share a little bit. So most of our audience, you know, are compliance officers. We have a lot of coders and auditors. So I think a lot of people have uh in in our audience have heard of the False Claims Act. Maybe you could speak to just very, you know, high level, why that's such an important uh tool um in fighting fraud, waste, and abuse. Um, and we'll kind of set the stage uh there, perhaps. Sure.

Yeah, that sounds great. Um, so just at a high level, also the the False Claims Act is if you don't know what it is, it is um a law that allows a private citizen, um, usually somebody that's inside a company, um, to blow the whistle uh against a company that's defrauding the government. And in in for this audience, that's a lot of you know healthcare fraud, which takes the form of you know kickbacks and things like that, um, upcoding, um, which Alan can talk to, um, that kind of thing. And so um whistleblower can then bring those that that those allegations to the government. Um the government it gets filed under seal, which means it's not public. Um, and then the government can investigate. Um, uh that can take years, as Ellen mentioned. Um, but once that investigation is complete, the government can either join your case and kind of take over, or they can decline to join your case and let the whistleblower and their lawyer pursue that on its own, which is an extremely important part of this law because it really brings private resources to bear for the government. Um, and it, you know, especially at a time right now where you know we're trying to reduce you know government spending and a lot of um those resources are scarce, more scarce than ever. Um, whistleblowers and their lawyers taking these cases forward is an extremely important part of this. Um, and so you know, the government always says that the False Claims Act is its number one uh fraud fighting tool. It's and we've it's brought back about $78 billion to the government since um in 1986 when it was um it was revamped so that it could actually be an effective law. Um and that is when, you know, a lot of that's when the incentives were put in and um you know the government realized that it was that was really more uh at back then it was a a lot of defense fraud. Um, and there was like no recourse to get to these um to these big defense firms that were up upcharging the government for uh their services. So um, you know, Charles Grassley really recognized that we need to revamp this law so that we can get these dollars back to the taxpayers. Um and it's really been an incredibly important tool for that since then. And and really, you know, it's it's about getting the money back for the government ostensibly, but it's also really about in this space, you know, patient harm and preventing that and you know, getting justice for those people that have been injured by these kinds of frauds.

Yeah, you know, and I think a lot of our audience, some of our audience might have kind of mixed feelings, right? Because they're they're a compliance officer like, hey, we want to prevent this sort of stuff, which is good. We all want to prevent that sort of stuff. Uh there are circumstances though where it gets so bad that this seems like the only option, right? And so I would I'm curious if you could maybe tell us um, because you're working with the attorneys that that kind of um, you know, they rep they do, they represent the the the whistleblower. Who is the typical whistleblower? A lot of people think, you know, these are these money grabbing people and and this and that. And um, you know, maybe there are some of those, but can you maybe in your experience maybe describe who the typical whistleblower is and and maybe why um they end up doing this?

Sure. And yeah, there of course there are people that are out there for the money, but really that's what the the law is incentivizing people to do. So even if they don't have you know good intentions for the world at large, they're still stopping a fraud. Um, and so you know it it really that's what the law is supposed to do. But I would say the large, large majority of people are people that are like Ellen who have tried to do the right thing internally, have reported up the chain, nothing's happening, they're not that the behavior is not stopping, and they really do feel like they have nothing else to do than to go find a lawyer. And a lot of people are also like Ellen in that they're not even maybe intending to file a claim. They might not even know what the False Claims Act is. They just want this to stop and they know that they need to talk to somebody about that. Um, and most whistleblowers are very reluctant to be whistleblowers because it is extremely difficult. Um, you know, you have to go, you you're almost certain to lose your job, you lose your relationships. There's a lot of divorces that come out of this. Um, you lose your friendships with people that you had there. Um, you don't while the, you know, while the case is pending, you're not, you're probably not getting paid because you're probably probably been fired, which means you're living for years at a time with you know no income. So it can be very, very damaging to people. Um and so most whistleblowers are just really brave people that are willing to put themselves out there to do the right thing and to stop, you know, the patient harm and things like that. So, you know, in this industry, there are lots of cases about unnecessary surgeries, you know, um kickbacks that actually do cause patient harm because you're prescribing a drug that maybe this person doesn't need because you're getting paid to do it. Um, and so all of that really drives, I think, whistleblowers to blow the whistle.

Yeah, yeah. You know, and um it it it we all should be, I mean, if we think about this from a societal standpoint, uh, those dollars are taxpayer dollars that are, you know, and that are set aside for taking care of people. Um, you know, my parents are older and they're Medicare patients, and right, and it's so and I think a lot of us understand that the healthcare dollar is supposed to go to taking care of people. And if that gets abused, there then I mean the resources are already scarce. Um, and then for for that to happen, um, you know, those resources are even diminished even more. And so to your point, um, it really affects people's lives. Um and so yeah, and so a lot of people have have obviously uh turned uh internally to try to report it and get something changed. Um thank you for sharing that. And um, Ellen, I'm wondering if we can maybe turn to you uh a little bit here, and maybe as much as you're comfortable sharing, tell us a little bit about your experience and you know, and and uh why you had to make that difficult decision to do what you did.

So, well, just to respond to your comment to compliance officer that they're here to prevent this. So having said that, my case, meaning the Halifax case, was completely preventable. This was not like it should not have been a surprise. Like I reported the problems, I thought they were being fixed. And if they had self-reported, which would have been a lot of money because at the time I think, you know, the damages could have been a billion dollars. So it was a lot of money involved. But had they self-reported, they would have not had to pay just part of the settlement was $85 million. Then there was a million dollars later. They spent $35 million on legal fees, and they spent hundreds of thousands in sanctions because they destroyed years of medical records. So all that could have been prevented when I went to legal with my compliance concerns. So just when I worked in compliance, I did all these audits. I would look at physicians and I would have physicians, like from a coding perspective, we would have physicians that would use their RMs to do physician services. You know, completely not okay. I I didn't, I was not the one alleging that. It would be other physician assistants and nurse practitioners who would come to compliance and say, hey, this physician is using his RN to do what I'm, you know, qualified to do. They're not supposed to do that. We had physicians that for 10 years had not built anything other than the highest level, like uh level five, every single visit, um, every single one for 10 years. Um, every trauma patient had critical care every day they were in the hospital. I mean, these were coding issues that were really bad. And I would do internal audits with 100% error rate, UMANA would do audits with 100% error rate, Blue Cross would do error rates with 100% error rate. And then UMana would require the physicians to do education. Well, they wouldn't do it. They would have their PA do their education and log in. So there was a lot of compliance issues. So when you talk about, well, how does that relate to Stark? Well, it relates to STARK in the sense that I was also responsible for physician contracts where I had to um sign them. And when I looked at how they were being paid, I was never gonna be able to stop their improper coding because that's how they made all the money by charging all these, you know, phantom charges. So that's kind of how it started, me looking at this to improve their collections and the fact that you were billing this way, some insurance companies weren't gonna pay it. You know, it's kind of a pay and chase system. So it was this whole thing, but I didn't blow the whistle because one physician for 10 years had billed level fives and didn't have anything else built in as Charge Master, because I thought when I was in compliance, my role was to change that. And that's that's what I tried to do. But then these contracts, when I moved, when I was promoted to director of physician services and realized the contract language for our oncology group at the time violated our own policy on STARC. And then when I went to legal, you know, they agreed with me. And I thought at that point I'd done my job, something would get done. Then six months later, I go back to finance. And again, I worked in finance first. My background was finance before coding and billing. And then I realized that they were still being paid the incentive that we determine violated STARC. And that's when I thought, not only do we identify the fraud, now we like document it and keep going. So I had little kids at the time and I thought, I don't have a choice. Like if I like if I let this go, I'm gonna be complicit. And and that's kind of I read about anti-kickback, and you know, I I thought I could go to jail for what they were doing if I was the one going under the bus. So um, that's when I started to get advice. And um, when you talk about the incentive and, you know, like whistleblowers do this, it's like winning the lotto. I remember reading an article in the Huffington Post that talks about, you know, incentivizing integrity and you know what most people get. And in that article, it says that 80% of whistleblowers get no reward at all. And of the 50% that gets a reward reward, like meaning 20%, it's less than $300,000. So to lose your pension and all these other things, it's not a good financial decision. The only thing that I knew by filing a lawsuit was I would destroy my career. And that's a very hard choice to make. And through organizations today, I get a lot of people reach out to me that wants to blow the whistle and I kind of talk them through some of these things. I mean, sometimes it's a financial decision. You know, you may have big fraud, but if it's not a lot of money, it may not be worth it for you to go through this with your family. And I think that's why TAF too, we have a whistleblower board where, you know, we talk to people like this. And I knew that when I decided to file, that I would lose my career. I knew it would be absolutely horrible retaliation while while, which it was. And um, I also thought with everything I had read, I'm gonna file under seal. No one is gonna know about it till the case settles or it goes away. That's not how it works, not in Florida anyway, because there were so many cases on the docket. So the judge, after one year, unsealed my case and the government didn't intervene till three years later. So I went from being the perfect employee. I'd worked there at the time. I ended up working 20 years, but at the time, 15 years, with not even one sick day. I had perfect evaluations. And overnight, when they found out it was me, I went from a perfect employee to a disgruntled employee. And most people at that time would have left or been fired. I I didn't leave. I actually, once they found out it was me, which they didn't do till three months after the seal lifted because they didn't check the dockets. So I would go to work every day for three months thinking, is today going to be the day? But I should I shouldn't have worried about it because I would know when the day was, because they met me at my office when I came in. And from that day on, everything changed. That I cannot even explain the retaliation. I got to sit in meetings and listen to them talk about me as if I wasn't there. They would say, we have not done anything wrong. There's just one person in this room who thinks we've done something wrong. It's all about one sentence in the contract, which is not what, you know, Stark is there to prevent um, you know, paying physicians for referrals, which is according to our contract, is exactly what we did. And, you know, um, it I would sit in these meetings, my friends would be retaliated against. They were literally told they cannot go to lunch with me. And one girl, when she did, you know, she got in trouble for that. Um, you know, one of my friends, um, you know, her job was eliminated that she's had for a really long time. And um then she was told, you know, she can go back to school in her 60s and get a master's degree and apply for a different job, just little things like that. And right when my attorneys would write a letter about the um retaliation, like list everything that had happened, and then they would say, set up a meeting with me, you know, without attorneys and say, well, it's my perceived retaliation. Um, I think at one time the CFO said he didn't know if he should paint my office in dog shit or gold. You know, these are just some of the little things, and that lasted for four years. I think the government um intervened um maybe at the fourth year. So that was a really long time to keep going to work.

Yeah.

And when I first reported, like before I reported it to my boss, I actually went to compliance and he told me that if I ever thought about becoming a whistleblower, I should leave. And he also reminded me that my loyalty was to the hospital and not the government.

So wow, I'm so sorry about that. Um, you know, to that yeah, to that point. Um, maybe Jackie, you could also mention real quick, uh, my understanding of the FCA is there are also retaliation provisions to protect people that bring forth issues in good faith. So um it sounds like there was still this retaliation going on. Um, but I my understanding, Jackie, is that sometimes people um don't feel like they need to uh blow the whistle until they've been fired or retaliated against. And and even if the the whistleblower, even if the false claims uh side of things don't turn out, aren't there also potential protections from a retaliation standpoint?

Yes. So there are anti-retaliation provisions in the False Claims Act. Um and so the the issue with filing those claims sometimes is that um uh you can file a standalone claim if you're not gonna go forward with your False Claims Act underlying claim. Um and that's usually not complicated. It can get more complicated when you want to file your retaliation claim and you also want to go forward with your false claims act underlying claim because of the SEAL. There's like SEAL issues that come up in those things. But there, but the anti-anti-retaliation uh provisions are pretty strong. You um you do get um two times back pay and um and and other damages, but um you have and and and the standard is that you have to prove that um your your employer um knew that you were engaged in protected activity, which is you know, you're reporting internally, you're trying to stop the fraud, that there that you truly believed as an employee that there was were was a potential violation of the False Claims Act here. You don't have to prove that there actually was a violation, obviously. You just have to prove that you reasonably as an employee believe that there was a violation going on. It's a it's a high standard, but it's it's not too high to meet usually. And there's also other there's also lots of other anti-retaliation um provisions in each individual state and under other federal um laws that you should look into if you have been retaliated against.

Yeah, and that's the reason I bring it up is um some people might not uh feel comfortable doing anything until something like that happens. And so then and some people might not know that, oh, I lost my chance and now it everything's ruined. You still might have some protections. And so even in those circumstances, it would be good to reach out to your organization and and to learn more because there's maybe different paths to to these types of protections, right?

Yeah, absolutely. And we have a lot of employment lawyers that also do false claims act work, and you know, which makes sense because someone's coming to you as an employment lawyer saying, I got fired because of this, and then it's oh that's a false claims act case. Um, so but we have lots of lawyers that specialize in in both of those things, and so you really do need to reach out to a lawyer that specifically knows about um the false claims act and the anti-retaliation um language in it.

That would have been great. We're gonna take a quick break and we're gonna come back and and talk some more about this uh um really important topic. So uh hang in there, everyone. We'll be right back. Welcome back from the break, everybody. Um we are uh talking about the False Claims Act and uh whistleblower experiences. And Ellen, I'd I'd love to turn back to you a little bit. And um if if you don't mind sharing, you know, what was what was the maybe because obviously you probably thought about this for a while, right? And you talked to people. Yeah, what was the thing that finally made you decide to take the path that you chose to take? It doesn't yet.

Yeah, no. So what finally made like like I said, none of the coding issues. I like I know every organization has coding issues, so it's more what do you do about it? The contract issue with my new title being director of physician services and responsible for signing contracts, knowing that I had brought a concern and then that it was ignored, and we actually determined that we violated STARK and then we go ahead and pay the incentive anyway. That that was the turning point for me because now I had validation that we weren't gonna do anything about it. And from the time I brought that concern, it like the coding issue had been going on for five years. I was working with those and I thought I was getting somewhere. But you got to understand when you work in compliance, you know, you report things and then you you don't always know right away what's happening, but you know it's being taken care of, or at least you think so. When I moved into director position, it's an operational job. So I just felt like I kind of lost the comfort I had in compliance of someone having my back. And I I could no longer say I didn't know. And I will say this in, you know, I was in a lot of meetings with the OIG, the Department of Justice, and what they always said about Halifax is on paper, we had a really good compliance program. They call it a paper tiger, but they said you can't put your head in the sand, which is what we did when we didn't want to take care of that incentive that we paid out. So, and and they always said, you know, it's you can't say you didn't know. Like I knew. So I I was thinking about like if this got really bad, that I I was afraid I was gonna go to jail. Like, how can you put your kids at bed to bed at night, knowing like I couldn't even function at that point? And I was so angry. And I had actually gone to legal and the person I went to in legal, you know, ended up leaving. You know, I don't know the reason why, but then I kind of lost that. Um, my compliance officer, which had been my mentor for years, you know, I, you know, couldn't go to him anymore. I kind of lost everyone around me. But the the the point was the fact that we identified the fraud and we decide to kind of ignore it. And that was really scary. And then I would get new contracts to work out with physicians, and they would be the same language, which like nothing changed. So I it was a choiceless choice. And um, when Jackie, when you guys talked about retaliation, I would have had a really good retaliation claim based on all the documentation we had done. But but after five years of working, and most people don't file a lawsuit and continue working, I did it because I was in a small community. I knew I wasn't going to be able to work anywhere in the state of Florida with once they knew it was me, just because the way the network is. And after the case, you know, after being in a position for over five years, I I was just kind of done. I, you know, the newspaper would write, oh, she asked for a severance package, you know, like it was it turned out to be all about money. They hired public relation firms to say we didn't do anything wrong. This is one sentence in the contract that one person wasn't okay with. And that when they paid the $85 million, the headline was that it boiled down to a single uh, you know, uh sentence in the contract. They did nothing wrong. It was just one person that had been planning this for years. Like this was my mission when I started 20 years ago. So I just didn't have it in me to do another lawsuit.

It's frustrating too, sorry, I didn't mean to interrupt, but um, you know, defendants after these cases settle and they pay out these, you know, $85 million or however much they pay out, they get to stand there and say, but we didn't do anything wrong and we're not admitting any wrongdoing or whatever. Okay. Yeah, right. You know, it smears the whistleblower.

Yeah, exactly. I mean, exactly. And most of these, Jackie, maybe you can speak to this real quick. Most of these settle, right? So they don't, um, most of these types of cases settle. So so the final word is these are allegations, and no one's admitting guilt or fault. Um, but the government then also says we also aren't admitting that they didn't do anything wrong. And so that's what you read in the in the press releases. Um I is that true? I do you have a sense of percentages of these that settle versus actually go to trial? Uh, if you can share that, if you know.

Yeah, almost never do they go to trial. We've actually had a weird year this year where we've had five that have gone to trial. Um, but um, those trials have uh almost except for one worked out in the in the whistleblower's favor, which is great. Um, but they almost always do settle because you know there's so much litigation costs associated with with these things. And um, you know, it's uh it they've usually been going on for the investigation's been going on for years, and um it's kind of you know easier for everybody for to s to settle the case. But I think a lot more of these cases are going to go forward to trial. Um, defendants are pushing back on trying on settlement on settlements a little bit more, plus whistleblowers are taking more of the cases forward in a you know in a non intervened posture, um, which means that you know they are gonna probably have. Have to fight these a little bit harder than if the government's involved. So I think you'll see a lot more trials. But yeah, it's usually almost all of them do settle.

Gotcha. Gotcha. If I so I I'm wondering now if I could turn to maybe advice you might give. So I'm actually at a conference right now. I'm at a coding conference right now. I actually gave a presentation yesterday on compliance issues. You know, I have a compliance background, um, also coding and billing background. And I gave a presentation on some, you know, what are the enforcement, um, what's the enforcement environment around hospitals and physician practices as it, you know, it just as it relates to to the government. It wasn't all about the false claims act, but uh I had people come up to me afterwards and ask, I think this is going on in my organization. And I am uncomfortable. And so, you know, we have we have a talk, we go through things, I tell them, look, I if if you feel like you need to go that route, I know of an organization. And that's that's the organization you work for that yet you might want to talk to somebody and work through it because these are always fact-specific, right? Um, and so I'm wondering, Jackie, if I go to you first and then maybe Ellen, what if you had just taught a session and you had three or four people come up to you and maybe you then connected with them later, how what would you advise them? Um, maybe just generally. And I know these are going to be very specific kind of fact patterns. And so maybe not so much about the fact patterns, but what things about what would you consider telling them? So maybe Jackie first and then Ellen if you have thoughts.

Sure. I'll talk to both sides of that kind of. So I have spoken to other you know compliance organizations, um, and the advice that I give the audience as compliance officers is you know, make sure you're you have a real compliance program in place that's not a paper tiger, um, and that you're really listening to and communicating with people that are coming to you and reporting fraud. Take them seriously, let you let them know that you're taking them seriously, report back to them on what your investigation showed. Those kinds of things will go a really long way. If you don't have a problem, if someone thinks you do, if you don't tell them that you're taking their concerns seriously and really investigate and then, you know, inform them about what the outcome is, you know, and maybe they'll still think that there's something going on, but that really is what people want to see. Like they want to see that there's action being taken and that their concerns are being taken seriously. Um, on the flip side of people that say, okay, well, this might um be happening in my organization, uh, I might need to do something about this. Um, I always advise people to make sure you have with so, you know, um, under the law, you're allowed to take documents that are available to you in your regular course of work. So if they have any documentation they can um provide to their lawyers, um, uh make sure you have that information, make sure you have in your mind, you know, witness lists, things like that. Some something to substantiate your claims. Um, and then immediately you need to go find a professional lawyer that does this specific work. Um, you can't go to just, you know, your friend that was a lawyer, you know, back from high school. Um, so like you need to, I suggest 100% go to our website. We've got a membership directory there. Um, they're all professionals that do this work and really um look at their websites, see if they've been successful in other cases that involve the same kinds of allegations that you have. Make sure that they're knowledgeable about the subject matter area. Um, you know, talk to four or five lawyers and see what seems like the best fit. Um, and I can tell you, if you know, there's gonna be financial constraints because of the likely retaliation um and you not maybe being able to work in the industry. Um, but many almost all of the the lawyers uh work on a contingency fee basis. So um again, that's an incentive for you know them to be successful and bring successful cases, and for you to not bring just any case also. Um so but find a lawyer that does this work um and and do your research.

Uh yeah, and that's a good point before we get to Elin is you know, these are these are professionals that this is what they do, right? And and um so they know the ins and outs, and they and they can give you, I think, probably uh uh a more independent set of eyes to evaluate what you think is going on. Because to your point, they're not gonna take a case that they don't it's expensive for them too, to you know, to work on these for years and years. They want to evaluate to say, is this a is this a good case? Um, meaning, you know, is is it worth the effort for everybody involved? And so they could tell you, well, you know, you know, I you know, this all might be happening, but we don't really have the evidence or we don't have the the documentation that that's necessary. And so that might be also a kind of a good gut check, is is kind of what I'm hearing you say as well.

Yeah, I think the government really considers us gatekeepers for these kinds of cases because we'll tell you you don't have a case here or it's not worth it for you to go forward given you know where you are in your career, that kind of thing. So we really um we act as kind of case gatekeepers to keep bad cases from being filed.

Right. So, Elin, as much as you're comfortable uh sharing, what what would you I'm sure you've probably talked to hundreds of people or or many people who've asked you this question. What what are your thoughts on giving advice?

Well, so I've talked to a lot of people that are considering becoming whistleblowers. Um, I I will tell you one thing that I've noticed is a lot of physicians are reaching out that are considering becoming whistleblowers. And a couple of the false claims cases I'm an expert witness on is actually both of them have been for a physician that is the whistleblower. So um, and and they don't seem to suffer as bad uh career-wise as other whistleblowers. So I don't think they're as afraid to blow the whistle as someone who works in billing and coding. And as far as a big disconnect that I see in compliance program, for example, in a hospital, I think there is such a big disconnect between physician contracts and the coding and billing side. So when finance comes up with these incentive contracts, I think it's so important for them to have coding at the table that kind of understand what these things are going to do. Like if you're incentivizing physicians to do, you know, illegal coding, because that's how they make their money, like you need to look at that. And I think that is a big disconnect. Um, another big disconnect I see on the hospital side is they may have really good people in compliance that understand hospital coding and billing, but they have no understanding for the physician, the professional billing and coding. So then they don't have anyone to do those audits. And a lot of times coders and billers aren't trained on both sides. Like when I started on the hospital side and I tried to tell my compliance officer, no, I'm not supposed to know both sides. There's, you know, almost like two different jobs. And I was required to be certified on both sides. And I don't think most people do that. It's hard to keep up with all the regulations in the coding world on both sides because they're different payment systems. So, and I see that in my expert work as well. And the other thing I see in compliance departments when they do audits, everyone does audit, they check for compliance, but very few people actually will monitor to make sure that what we audited for, and now we have a plan on how to fix it, but no one checks on that. Like, how does a physician for 12 years don't have anything but a level five built into its charge master? Why should not happen in 2025? I mean, we know, but but it I see it all the time. Um, so that's a big disconnect. If this is something you're considering being in coding and billing, my advice would be to document and document and document. So you document what happened, what you did, the dates. One advantage I had in in my case is for whatever reason, my finance background or memory, I remember dates. So when I had to write down what happened over five years, I remembered what date it happened and what time of day it happened. That's just something I'm good with, is numbers. So something the DOJ really liked because not only can I tell you this happened, but I can tell you what day of the week and what time and what date the meeting was five years ago. No problem remembering that. So we just remember different things. And I think that the documentation you do is gonna help you if someone else blows the whistle and then you're gonna defend what you did. I would definitely document. I know it seems tedious, but we teach physicians every day you got a document. You know, as a coder and biller, you got a document. And most of the coders and billers that I talk to that think they have a valid, you know, concern to file a lawsuit. I would say 90% of the time, I'm gonna advise them not to because I don't think the issue is big enough. Um, and sometimes they don't report it, they want to go on the outside right away. And I think it's super important to always, you know, document that you've tried to change it. That's just my opinion based on everything that I went through. And I sat through every single deposition, I don't remember how many, maybe 30. And, you know, you learn a lot from that. And um, you know, I thought the um times I met with the Department of Justice at the beginning trying to explain the fraud was some of the like I felt like I was on trial when we did that. When they prepared me for trial, it was not easy. And our case settled on the eve of trial. So trial was starting Monday morning. The jury was actually in the um seats on Monday morning before they knew the case had closed that Sunday night. And yeah, so so it's a lot of things behind the scenes.

Wow, Jackie, is that common that it gets that close to trial?

I wouldn't say it's probably not that common, but it does happen. I mean, I think that both sides feel like someone's gonna give up until that last moment. Um, and the cases are long and expensive, and so people, you know, get they they they get that they want to believe that they can get the best deal at the end, right? So I but I don't think that it happens super, super often. I think that that is kind of an anomaly. Okay.

And from being in a small community, I just want to add this. So after the case settled and they paid all this money and they said, you know, we didn't do anything wrong except breaking stark, which is an old law that we should, you know, kind of shouldn't have to worry about. They did town hall meetings to explain to the public how they didn't do anything wrong. And this was all me.

Yeah, yeah, yeah, exactly. Yeah, I but Elin, I mean, I I think anyone that that thinks uh that can think somewhat coherently will know that you don't settle for and I and I'm not trying to diminish what you went through, but I think people that at least in the compliance encoding world, we look at that and we're like, okay, you spent up to 35, you just told us before, you spent up to 35 million dollars on legal fees, and then you're gonna settle for 85 million. Um, okay, there there must be something there because if it was completely frivolous, um, somebody would fight that usually, right?

I still get that they have to make a business decision, but and the 85 was reduced because of ability to pay and being a safety net hospital. So it was originally, you know, and so at that point it becomes the cost of doing business. So I got to sit in on the meetings afterwards where our CFO was applauded because it was only $85 million. So I got the whole spectrum, and and I don't recommend anyone staying for five years like I do, but it in my from my perspective, I'd not I had not done anything wrong. I worked my whole life to have no debt. I wasn't about to lose my job and tell my kids that we can't have something because I lost my job. So I just kind of sucked it up and went to work every day. Do I recommend it? Not really.

Yeah, well, well, you obviously have um some very core ethical morals and and standards um that probably was a strength to you, even though you probably felt completely alone. Um and so uh I just talking to you, I I could sense that you that you have a very strong purpose and and um uh kind of ethical way of looking at this. And so, you know, I applaud you for for standing, you know, for standing up for what you felt was right. I don't know the facts of the case. I don't know, right, but but just hearing what you're saying, um anyway, I'd just like to tell you that.

I didn't do anything uh uh that someone else shouldn't have done. Like I'm not a hero, I'm not a villain. I did my job, and everyone should do that. And I think in, you know, I think our future with people that are going to college today, when I went for my MBA back in the 90s, you know, we didn't have ethic classes. Today I'm involved in ethic classes where they have competition. And no matter what industry you're in, you should know your like your gray areas and you should know before getting to the table how you're gonna handle them. Because once you get to the table, everyone is gonna say, well, everyone else is doing it. Like it's not that bad. So, as a person, no matter what industry, you need to know what those areas are and kind of be prepared for how you're gonna handle that because they're gonna happen.

That's a great point. So I I teach at a uh a university, um, we have an undergraduate program in in healthcare administration, and that's the class I teach is healthcare law and ethics. I'm not a lawyer, I teach it more from a compliance perspective, right? Um, there are lawyers out there that can help us with the fine points, but from a general principle standpoint, I can teach people to be issue spotters um and to say, look, these are things you have to think about. Like you just said, um, you know, you you when you're interviewing for positions, uh, especially if you're in a compliance field, you should probe before you you you go there, right? Like you were talking about a paper tiger program. Uh, I remember interviewing with somebody, I said they wanted me to report to legal. And so I tested the waters. I said, you know what? The OIG says and the DOJ says the best compliance programs have the chief compliance officer reporting to the CEO with a dotted line to the board. I will, and they offered me a job. I said, I will not accept this job unless you change the reporting position, the reporting lines, because you're setting me up for failure. Um maybe nothing would have ever happened, right? But I so I I would just encourage people to to have, and I know it's hard, it's just balancing that because you're you're wanting career advancement and you're wanting that next great job. And and um, but I I think you should people should think as much as they can. We can't always you know foretell uh these circumstances. I'm not saying you could have prevented or for foretell the put you were just doing your job, and these things kind of come through the process of doing your job, and uh, you didn't seek it out, and you know, it's like, look, this is my personal integrity as well. I have to sign these contracts, I am not gonna do it. And a lot of the organizations we belong to, so I belong to the healthcare compliance association as well. They they have an ethical code for compliance officers because they know they might run into these issues, um, you know, and they recommend, you know, certain things. So I would recommend looking at those kinds of ethical codes and those sorts of things to guide people as well. Um, anyway, that's me pontificating. Well, we're we're kind of coming to the end. I I feel like we could talk all day. Um, and I know you guys have done other presentations, probably together and those sorts of things. I'd love to if you have any last-minute thoughts or or anything you'd like to say, um, and maybe we'll start with with Jackie and then end with Ellen. If there's anything that you feel like I didn't ask or um that would be really important for maybe our audience to hear.

Well, I just really want to applaud um whistleblowers like Elin and others like her that have come forward. Um you just mentioned all of the you know reasons why, but I just wanted to second that again. Um, so thank you to Ellen. Thank you to all the whistleblowers out there. Um, for compliance departments, like I said, just take these complaints seriously and have a process which which prevents these cases from ever being filed. Um and to whistleblowers that are out there, potentially go to our website, look for lawyers again, um interview those lawyers. And um, if you do uh need any assistance, please contact us. Um, go to our website. We can you can contact us through there.

Yeah, and we'll we'll make sure that that that website's in the show notes so that people can can easily get that. Thank you, Jackie, for for being here and for your thoughts.

And Elin, any last-minute uh thoughts or

well, I do think the next generation is hopefully not gonna be as good as retaliation as our generation. I think these um ethic programs is helping that. And when I'll know that that's helping is when I see organizations hire whistleblowers. Like, you know, what a standard that would set. Then you know, like, um, and like I said, I think we're ways away from that, but that's kind of what I'm hoping for the future. I'm hoping for the future that you expect people to do what I did for a safe environment. Like if it was an airplane, wouldn't you want someone to speak up? I mean, everyone does, but then at the same time, they retaliate when someone does. So I I just think the more we provide education and talk about this, kind of normalizing it, that's kind of what my hopes are for the future. Should be the right thing to do.

Yeah, what a profound way to say that, Elin, that that ethical companies would seek out whistleblowers because they're people who who want the right thing done. Um, and that's a great way to look at it, right? And that would that would kind of tell you, oh, this this organization is serious about compliance because they hired somebody that I mean, they want actually. Yeah, they want to get things done behind the scene as opposed to posting things, mission, vision, values, and all these kind of talking points and and codes of conduct on paper, like you both alluded to, but not having the teeth behind it to really change if they found something. So, what a what a great message. Thank you for saying that.

Well, thank you so much to Jackie and Elin. Thank you all for listening. Um, we really appreciate uh this particular uh set of guests. Thank you so much for for being willing to share these important things. Um, and uh to our audience, we always say this at the end. Um, if you know of a guest that you'd like to hear from, or if you have a topic that you'd like to hear more about, please let us know. We want these uh podcasts to be as in informational and as uh beneficial to you as possible. So thanks everybody for listening. And until next time, take care.