Category Archives: Whistleblower Articles

A whistleblower lawsuit that has been hidden from public view for nearly three years claims a private contractor paid hundreds of millions of dollars to provide healthcare to prisoners in Delaware covered up deficiencies in care that neglected, maimed, and caused undue suffering to people imprisoned by the state.

Now, Delaware’s Attorney General is joining that whistleblower lawsuit against the state’s former prison healthcare provider, according to recently unsealed court filings.

Centurion was paid some $200 million by the state over three years to provide primary healthcare and mental health services to more than 4,000 prisoners in Delaware ending in 2023. At the time, Centurion was a subsidiary of Centene Corp, a Fortune 25 company and the nation’s largest insurer for the country’s Medicaid program.

Both companies are named as defendants and did not reply to multiple requests for comment through their media and investor teams as well as legal counsel over multiple days.

The lawsuit accuses the business of falsifying records, propping up mental health programs they knew were accomplishing nothing, funneling prisoners toward addiction to and covering-up staffing shortages in a way that denied prisoners adequate healthcare.

“It needs to change,” said Christopher Craig, a prisoner at Howard R. Young Correctional Institution who has spent 31 years in Delaware lockup. “It has gotten worse and it needs to be fixed.”

Horror stories told by prisoners, lawsuits filed on their behalf and at least one government report have for years painted correctional healthcare in Delaware as broken and the cause of suffering.

But this lawsuit is unique.

It was filed in 2023 by two former mental healthcare providers employed by Centurion at Sussex Correctional Institution under a special form of litigation designed to incentivize people to point out fraud perpetuated against the government.

Since its filing, the lawsuit has remained hidden from public view under a court-ordered seal while the office of Delaware Attorney General Kathy Jennings investigated the allegations and eventually decided the state would intervene in the litigation as the defrauded party.

Jennings office declined comment citing the pending litigation. The Delaware Department of Correction, which oversees the delivery of healthcare by private companies, is not named as a defendant and also declined comment.

The state joining the lawsuit represents a remarkable endorsement of the allegations and what prisoners and their families have said for years: the common business model for prison healthcare in Delaware and the United States generally anticipates and prolongs suffering for profitability.

“Centurion’s business model is premised on profit reaped through the denial of basic healthcare and behavioral healthcare required by government contracts,” the lawsuit states.

Centurion enters after scandalous divorce:

State officials hailed Centurion entrance into Delaware’s prisons as a reform as the state divorced its prior, scandal-ridden healthcare provider Connections Community Support Programs Inc.

After years of lawsuits, complaints by prisoners and outside medical providers, Delaware terminated its contract with Connections early. Eventually, the once politically connected non-profit was also sued for defrauding government through drug treatment programs administered outside of Delaware’s prisons. That lawsuit was settled.

At the time, then Department of Correction Commissioner Claire DeMatteis said Centurion would be more professional and better staffed than Connections.

Centurion was selected over other bidders under three-year, extendable contracts that would pay the company $47 million annually to provide basic healthcare services in the prison and $21 million annually to provide mental healthcare as well as drug and alcohol abuse rehab programs.

Centurion operated under the common model for healthcare in American prisons. They bid a certain amount to provide the service; they are paid by taxpayers in monthly instalments and whatever money is left after healthcare is delivered is the company’s profit.

And despite prisoners being financially destitute, Medicaid does not pay for their healthcare unless they are hospitalized for more than 24 hours. Critics say this setup incentivizes shortchanging care, especially expensive specialty care and care that requires an outside doctor.

The company’s basic task is to employ healthcare professionals to provide primary care inside prisons: to make diagnosis and treatment plans, manager prisoners’ medication, provide what care is possible inside the prison and refer people to outside specialists when needed.

The mental health contract is similar and mandated the company administer special programs for substance use disorders which are often linked to a person’s eventual release from prison.

The contract included provisions outlining minimum staffing levels, basic training and qualifications for staff, requirements for the administration of rehabilitation programs that prisoners and provisions for officials to withhold payment if the company didn’t adequately perform these tasks. 

The lawsuit states that these contractual agreements were “lies” by the company.  

“Centurion’s assurances about the treatment and rehabilitation it would provide were false, and it conspired to conceal these shortfalls from the Department of Correction,” the lawsuit states. 

The whistleblowers’ allegations:

Deneen Rayne and Jamie Basara, the two whistleblowers who instigated the lawsuit, both worked for Centurion as substance abuse counselors at Sussex Correctional Institution near Georgetown.

They were part of what was known as the Road to Recovery program, a rehabilitation program that judges order some prisoners to complete during their sentence.

The lawsuit cites their observations to label the program as fraud:

The program was designed to have a minimum staffing of counselors and managers but was never properly staffed, the lawsuit states. Required training wasn’t completed. To create an appearance of compliance, employees would be shifted around when corrections supervisors would visit.

Assessments were completed without meeting with prisoners. Supervisors ordered that one-on-one counseling be skipped in favor of group work to maintain appearances. Some group sessions had no counselor and were led by the participants. 

What was supposed to be regimented counseling work became prisoners completing worksheets on their own. And generally, the lawsuit states that medical records, staffing records, assessment documents, participation records were all fabricated to create a “charade” of compliance. 

Brian Whiteside is a prisoner at Howard R. Young Correctional Center. He has struggled with addiction, overdosed in prison and participated in the Road to Recovery Program. 

“It is not a program,” he said in an interview. “It is a money grab.”

He said the contractor employees did not follow the rules for how the program is supposed to work, mental health counseling that is supposed to come with the medication is sparse and the result is many participants return to prison after or die of an overdose on the outside. 

“It was a joke. There is no accountability. The process doesn’t work,” he said.

The lawsuit also includes Rayne and Basara’s observations about the delivery of general healthcare.

It states sick calls were not attended to in a timely and that they had to pester correctional staff to pressure their higher-ups to attend to ailing prisoners. One prisoner with colon cancer couldn’t get an outside colonoscopy, would regularly soil himself, flies hovered around him and his sick call went unanswered for two weeks, the lawsuit states.

The lawsuit tells the story of one prisoner whose cancer caused him to deteriorate, but he could not get proper help until he was hospitalized and believed by the plaintiffs to have died. The lawsuit claims officials let him deteriorate to shift the cost for palliative care onto Medicaid through an extended hospitalization.

“Centurion’s strategy across the state of Delaware was to deny inmates the care they needed in an effort to shift financial responsibility onto Medicaid when inmates became seriously ill and required hospitalization,” the lawsuit states. 

The lawsuit also accuses Centurion of causing addiction by putting prisoners who were not suffering from a substance abuse problem onto addictive drugs designed to treat opioid conditions. It claims a prisoner with a heart condition and another suffering from schizophrenia had their prescribed drugs withheld in favor of opioid abuse medications. 

“Inmates were told repeatedly the drugs they needed were too expensive,” the lawsuit states. 

Big money stakes:

The lawsuit states that Rayne and Basara were both “constructively terminated” in September 2022 after they complained about failures in care. They filed their lawsuit about a year later under what is known as the Delaware False Claims and Reporting Act law.

The law is modeled after a similar federal law that incentivizes whistleblowers to point out individuals or companies that make false claims aimed at defrauding the government. It awards the whistleblowers a percentage of spoils if the lawsuit is successful. In this case, the whistleblowers could receive up to 25 percent of the proceeds.

Litigation under the False Claims Act classifies whistleblowers like Rayne and Basara as “relators” and the state as the plaintiff.

After the lawsuit was filed under seal in September 2023, civil attorneys under Jennings, the state’s top legal officer, began an investigation into the allegations to answer whether the state would join the lawsuit.

Washington D.C.-based attorney Reuben Guttman represents Rayne and Basara and is considered an expert in this type of litigation. He said the government choosing to intervene generally tells the court that the allegations are “material” and “important.”

“You have a lot of private vendors that have come into the (prison) healthcare area and offered the quick fix. Quite frankly, there is no quick fix,” Guttman said. “It is an unfortunate situation, and it is important that the state has stepped in and is taking on these defendants.”

The lawsuit seeks three times what the court may rule as the amount of damages the government sustained because of the fraud as well as the “disgorgement” of all money resulting from the company’s “wrongful conduct.”

State records indicate Centurion was paid $206 million over the course of the contract.

Centene sold off its prison healthcare business in 2023 at what court records indicate was a fire sale price. And there is an ongoing, separate court fight in Delaware’s Chancery Court over who has to pay still-growing costs associated with claims of malpractice and negligent care from when Centene owned the business.

Centene, a publicly traded company, has argued that the terms of the sale means the business’ buyer, a private conglomerate of construction and government contracting businesses owned by a Texas family, should have to pick up the bill.

The Sullivan Brothers Family of Companies accused Centene of obscuring the scale of the negligence claims against the business before the sale and twisting the purchase contract’s language in an unfair attempt to pin costs associated with those long-running medical negligence claims on them.

Why care?

Prisoners are stripped of their freedom for a period of incarceration by a judge, but are not sentenced to medically suffer or potentially die at an earlier age due to neglect. The U.S. Supreme Court has also interpreted amendments to the U.S. Constitution to imbue those imprisoned with a right to basic healthcare and humane conditions. 

And the cost to provide care for people in prison is one of the largest borne by society in today’s carceral system − totaling well more than $50 million a year from state coffers in Delaware.

And while this lawsuit is unique because of the state’s involvement, the allegations are not new for Centurion or Delaware prison healthcare providers before or after.

The allegations follow a similar narrative told by prisoners in interviews with DelawareOnline/The News Journal as well as large-scale litigation against Centurion, VitalCore Health Strategies, the current healthcare provider, and Connections before those two. 

In 2023, the local chapter of the ACLU sued Centurion and VitalCore accusing the contractors of understaffing and delaying basic and outside care and consultation to the point of permanent health consequences. It seeks to represent every prisoner that has been incarcerated while those two have worked for the state.

That lawsuit is ongoing. It comes after a host of other lawsuits and settlements regarding Delaware’s prison healthcare that continue to trickle in against Centurion and providers all the way back to Connections.

In February, the insurer for the now bankrupt Connections settled a prison healthcare lawsuit filed all the way back in 2020 by the family of a 35-year-old man who died of what his lawsuit described as violently obvious opiate withdrawals after a day and a half of being jailed on driving charges.

Whiteside, a prisoner at Howard R. Young, said the system remains disjointed, people don’t receive the care they need and he fears that it is designed to discourage people from seeking care. He said the system leaves people feeling “defeated, deflated and overwhelmed.”

“If you want healthcare you have to fight,” he said. “You have to advocate for yourself. You have to put multiple sick calls in and most people get tired of the process,”

He said people on the outside should care because prisoners are not sentenced to suffer medically and that prison is supposed to include rehabilitation.

“Prison is not supposed to be easy, not supposed to be comfortable,” he said. “But the punishment is being away from our families.” 

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Delaware prisoners may also contact Xerxes Wilson on the GettingOut app.

Source: https://www.aol.com/articles/state-backed-whistleblower-suit-claims-082033236.html

A federal whistleblower lawsuit filed against Erlanger Health System accuses hospital leaders of illegal billing practices by knowingly overlapping surgeries and allowing trainees to operate on patients without physician supervision, among other patient safety and compliance issues.

The complaint, brought under the federal False Claims Act and Tennessee Medicaid False Claims Act and filed in April 2021 in U.S. District Court, alleges surgeons who practice at Erlanger violated state and federal law by regularly billing for two or three different surgeries in the same timeframe while leaving residents and interns alone to complete operations without proper oversight or patient consent.

Medicare and Tennessee’s Medicaid program, TennCare, require a supervising or teaching physician to be present for the “key and critical” portions of each surgery in order to bill for the procedure and receive payment.

As a teaching hospital, Erlanger is supposed to use young doctors in training, known as residents, during surgeries. It’s up to the teaching physicians to decide what aspects of the surgery are key and critical because it can vary significantly depending on the individual patient, procedure or the skills of the resident.

“The surgeries were often scheduled to start within fifteen to thirty minutes of one another and, in the case of three overlapping bookings, two or more surgeries frequently occurred entirely within the duration of a third,” the suit alleges. “This routine practice meant unwitting patients were subjected to longer-than-necessary operating-room times and charges, often under anesthesia, often in the care of trainees, and nearly always without the backup of a properly qualified surgeon, despite legal requirements.”

The plaintiffs — Erlanger’s former chief information officer, Dr. Stephen Adams, and orthopedic surgeons Dr. Julie Adams and Dr. Scott Steinmann — say in the suit that they raised those concerns about patient safety and compliance with Erlanger leadership, which ultimately cost them their jobs.

“Erlanger deliberately turned a blind eye to the problems, deciding, instead, to focus negative attention upon those who dared to raise such issues,” the suit alleges.

The three are also seeking payment for damages they claim came as part of a “malicious and unlawful campaign of retaliation” under former Erlanger CEO Dr. Will Jackson, according to the suit.

The False Claims Act is a longstanding statute that allows individuals with non-public information to bring a suit in the name of the government to allege false statements or fraudulent representations have been used to secure government payment.

The law offers financial incentives for those suits as a way to safeguard public funds spent on critical services, such as health care, military support, infrastructure and disaster relief.

If successful, the whistleblower — also known as the relator — typically receives a portion of the recovery ranging between 15% and 30%, according to the U.S. Department of Justice website.

By law, those suits must be filed under seal to afford the government an opportunity to investigate the allegations and decide whether to take the case forward — which occurs in about 20% of cases filed. If the government declines to intervene, the whistleblowers have the option to proceed themselves.

Erlanger spokesperson Blaine Kelley said in an emailed statement that the state of Tennessee has already declined to intervene in the case. Erlanger officials are still awaiting confirmation of the U.S. Attorney’s office’s decision, she said.

“Erlanger has worked with and otherwise fully cooperated with the government’s review of the claims as they relate to Erlanger over the past 18 months,” Kelley wrote. “Erlanger disputes the merit of the allegations.”

She added, “No instances of patient harm relating to these allegations have been identified.”

Reuben Guttman, an attorney representing the whistleblowers, said his clients are unable to discuss the case.

“The three renowned physicians and professors of medicine have alleged issues of significant public importance, and they look forward to a full airing of their concerns in court,” Guttman said by email. “They hope that whatever comes out of this litigation will ultimately lead to better medical care for the vulnerable and the voiceless.”

Dr. Stephen Adams is board-certified in both family medicine and medical informatics and is a professor in the department of family medicine at Erlanger’s academic affiliate, the University of Tennessee College of Medicine Chattanooga, where he has worked since 1997, according to the suit.

Dr. Julie Adams and her husband, Steinmann, are leaders in their field and were recruited in 2019 to join the college of medicine faculty and Erlanger. At the time, Steinmann was appointed chairman of the Department of Orthopedic Surgery. He is now an emeritus professor of orthopedics at the Mayo Clinic College of Medicine.

In fiscal year 2022, whistleblowers filed 652 False Claims Act suits, with health care fraud representing the most common type of cases, according to the Department of Justice.

In February 2022, Massachusetts General Hospital — the renowned teaching hospital affiliated with Harvard — agreed to pay $14.6 million to settle a federal lawsuit alleging it fraudulently billed government insurers by overlapping surgeries as supervising surgeons worked in other operating rooms, according to a report in the Boston Globe. Just last month, the University of Pittsburgh Medical Center, University of Pittsburgh Physicians and one of the group’s leading surgeons agreed to pay $8.5 million to the United States to resolve claims over improper billing for concurrent surgeries.

Source: By Elizabeth Fite, Chattanooga Times Free Press.
Contact Elizabeth Fite at efite@timesfreepress.com or 423-757-6673.

Article available on-line at https://www.timesfreepress.com/news/2023/mar/27/whistleblowers-accuse-erlanger-illegal-billing-tfp/

By Reuben Guttman and Liza Vertinsky, July 25, 2022

In the 1990s, state Attorneys General learned how to leverage their resources when they retained private counsel to sue the tobacco industry. The private attorneys worked on contingency, meaning they did not get paid unless money was recovered from the tobacco industry. For their part, the states were able to take on novel litigation and draw from private investments in legal innovation without putting taxpayer dollars at risk.

Since the Tobacco Master Settlement Agreement was signed in 1998, state Attorneys General have worked with private counsel in similar relationships to bring an array of health, safety, and environmental suits focused on health impacts. These suits have included cases against drug companies, the most notorious of which featured opioid manufacturers and distributors.

In July 2022, 52 states and territories, along with many local governments, entered into a $26 billion multijurisdictional agreement with three major pharmaceutical distributors and a pharmaceutical manufacturer to settle claims arising from their opioid business practices. This multistate opioid settlement followed earlier ones reached with the now-infamous Purdue Pharma, as well as with McKinsey Consulting, Mallinckrodt, and Insys Therapeutics, and was followed by settlements with two more opioid manufacturers. The result was a multi-state enforcement effort by Attorneys General that is the second largest in U.S. history, exceeded only by the Tobacco Master Settlement Agreement.

While the state Attorneys General who participated in these suits and settlements were quick to herald them as a major success, with more than $30 billion in settlement funds and future monitoring and restricting future opioid deliveries, it is a stretch to say these are industry-changing events. Too little was done to educate policymakers and the public about the nature and sources of industry misconduct and to address the remaining vulnerabilities in the pharmaceutical manufacturing and distribution system. The results did too little to change the market ecosystem that fueled the epidemic.

The opioid litigation, like many cases brought against pharmaceutical and device companies, challenged marketing practices that have caused products to be used in ways that place profits ahead of patients, often putting patients at risk of harm. These lawsuits exposed practices that have resulted in professional standards of care that seem to be influenced more by Wall Street promises than by medical necessity.

Yet far too often, these cases are resolved short of full fact finding — called discovery — or without a public trial and a published court decision. Multi-million-dollar opioid settlement resolutions are touted in press releases as major successes while the culprit corporations admit to nothing, simultaneously telling investors that the settlement was a business decision and will not affect the long-term bottom line. Indeed, history shows that when drug companies pay hundreds of millions of dollars — or even billions of dollars — to resolve claims of drug marketing derelictions, their price per share is not affected, or may even get a boost because investors believe the settlement was a cheap fee for a license to break the law.

As much as these cases have provided an inkling of the profit-motivated misconduct of companies that Americans depend on for health care and a safe environment, knowledge of the depth of corporate misconduct remains just that, an inkling. Confidentiality agreements — often executed to prevent delays in producing the documents required for civil litigation — keep the most sordid details secret. And when there is no trial, the public gets to learn little about identifying wrongful conduct and legislators have difficulty making laws that prevent it.

Supreme Court Justice Louis D. Brandeis famously wrote that sunshine is the best disinfectant. While recovering money for public programs is essential, state Attorneys General must do a better job of also making public the lessons learned from these opioid settlements. If the drug industry is using subtle marketing tactics to manipulate the prescribing habits of physicians, for example, the public — including legislators, regulators, the press, and even physicians — must know the details.

Impact litigation must be designed to effect changes in industry behavior. Just as the National Transportation Safety Board investigates and issues a public report when a train wreck occurs, and just as Environmental Impact Statements are required for federal projects that could significantly affect the quality of the human environment, state Attorneys General should treat corporate health and safety derelictions as deserving of detailed public reports. And they should make it clear to the attorneys involved — whether in-house or under contingency agreement — that confidentiality agreements cloaking the secrecy of wrongdoing are to be used only sparingly, to protect legitimate trade secrets that are not essential to reforming industry practices, and not to hide information that is important to the public.

In the end, the public needs to know all the facts and policymakers need to act on the facts. A simple press release announcing a seemingly high-dollar settlement doesn’t achieve either of those objectives.

__________________________

Reuben Guttman, a partner with Washington, D.C.-based Guttman Buschner, PLLC, has litigated under the False Claims Act to challenge pharmaceutical marketing practices. Liza Vertinsky is a professor of law at the University of Maryland Francis King Carey School of Law. Their article “Public-Private Litigation for Health” was published in the Utah Law Review.

Source: Article available on-line at Statnews.com.