PLUS: WHISTLEBLOWERS, QUI TAM & FALSE CL AIMS
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MAY 2017
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EDITOR
Sheri Carr 858.226.7647 | sheri@physiciansnewsnetwork.com DESIGN
Rob Davis 916.709.2007 | sherlockmedia@gmail.com ADVERTISING SALES
Dari Pebdani 858.231.1231 | dp@physiciansnewsnetwork.net
MAY 2017 - VOLUME 6, ISSUE 5
www.PhysiciansNewsNetwork.com EDITORIAL COMMITTEE
Russ Granich, MD , Chair | Judy Chang, MD | Uli Chettipally, MD Sharon Clark, MD | Carri Allen Jones, MD | Gurpreet Padam, MD Sue U. Malone | Executive Director SMCMA LEADERSHIP
Russ Granich, MD | President Alexander Ding, MD | President-Elect Sara Whitehead, MD | Secretary- Treasurer Michael Norris, MD | Immediate Past President Janet Chaikind, MD Uli Chettipally, MD Mamatha Chivukula, MD Paul Jemelian, MD Alex Lakowsky, MD Richard Moore, MD Joshua Parker, MD Xiushui (Mike) Ren, MD Brian Tang, MD Dirk Baumann, MD | AMA Alternate Delgate Scott A. Morrow, MD | Health Officer, County of San Mateo www.SMCMA.org facebook.com/smcma | twitter.com/SMCMedAssoc. EDITORIAL
San Mateo County Physician is published ten times per year by Physicians News Network (PNN) and the San Mateo County Medical Association. Opinions expressed by authors are their own and not necessarily those of PNN or SMCMA. San Mateo County Physician reserves the right to edit contributions for clarity and length, as well as to reject any material submitted.
On The Inside 2................President’s Letter | LEG DAY AND 420 By Russ Granich, MD
4................Whistleblower | QUI TAM & FALSE CLAIMS By Shauna Itri
6................Healthy Financial Planning | INVESTING By W. Ben Utley, CFP
12..............San Mateo County in the News By Sheri Carr
Acceptance and publication of advertising does not constitute approval or endorsement by the San Mateo County Medical Association of products or services advertised.
© 2016 San Mateo County Medical Association
M AY 2017 | S A N M AT E O C O U N T Y P H Y S I C I A N 1
PRESIDENT’S MESSAGE
Leg Day and 420 BY RUSS GRANICH, MD
LEG DAY April 18 was more than just Tax Day; it was also Leg Day. No, not the lower extremity, but the Legislature. “Leg Day” is formally known as “Legislative Advocacy Day.” Every year around this time, the CMA arranges an event where representatives from all the county medical associations have an opportunity to meet with their state legislators. It starts with a reception sponsored by CALPAC on the evening before. The actual Leg Day starts off with talks by the CMA leadership, then time to meet with legislators, more speeches and more time to visit. Speakers this year included California Attorney General Xavier Becerra and Diana Dooley, secretary of PHOTO BY SCOTT BUSCHMAN the California Health and Human Services Agency. A couple of weeks before these festivities, the CMA had some training and webinars to help doctors be prepared. San Mateo County Medical Association takes a slightly different approach than most of the other county associations take. We feel that developing relationships is the most important thing we can do, so we sponsor “We feel that a dinner the evening before to which we invite our local legislators. We usually book the Board Room at Ella Dining Room and Bar, near the Sheraton, where the event takes place. We invite the legislative representatives developing representing all or portions of San Mateo County, including Senators Jerry Hill and Scott Wiener and Assembly members Phil Ting, Kevin Mullin and Marc Berman. Among our representatives Jerry Hill always makes the relationships is the time to join us. You can see the power of this strategy when Jerry comes into the room and recognizes most of most important us and friendly banter ensues. We do have the ear of our legislators.
thing we can do, so we sponsor a dinner the evening before to which we invite our local legislators.”
420 I am sitting writing this on 4/20, which many of you know is the number associated with marijuana. There will be all sorts of celebrations today; the most well-known occurs in SF, where about 15,000 people unofficially find their way to Hippie Hill (aka Sharon Meadow) in Golden Gate Park and have a massive party. Unfortunately, since it is not a sponsored event, all the costs associated with it fall upon the city; last year it cost $140,000. (Aside: 14 is a factor of 420. The universe is once again playing tricks with us!) This year it will be different. Local merchants and event planners have come together to raise money and make it “official.” Child Protective Services will also be there as it is now an 18-year-old-and-older-only event. In San Mateo, there is a three-day festival at the Cow Palace with all sorts of displays, products for sale and entertainment, especially Reggae artists. A bit more civil than SF. Not sure if that is good or not! I certainly would be cautious driving around there on that weekend. Why 420? That is something that had been debated for years until the last several years when the truth came out. Many thought it was a police code having to do with someone smoking marijuana. It’s easy enough to find out that is not true. Turns out it came from a bunch of high school students who called themselves “Waldos” as they used to hang out by a wall (that shows you how clever marijuana makes you). They were in search of a mythical marijuana field abandoned by its owner, an El Dorado of sorts. They would meet at 4:20 p.m. to get high and start searching. Being in Marin, they had connections to the Grateful Dead, and soon it became a commonly used slang. When asked years later, even the band members did not know the origins. As bassist Phil Lesh once said in a deposition, in a lawsuit over Jerry Garcia’s estate, when asked if he could recall any details, “It was all sort of a haze.”
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Welcome to
Legislative Advocacy Day or as we like to call it
Left to right; Barbara Weissman, MD, member of the CMA Board of Trustees; Dirk Baumann, MD, Alternate Delegate to the AMA House of Delegates; Michael Norris, MD, former president of SMCMA; and Secretary-Treasurer Sara Whitehead SMCMA President-elect Alex Ding and SecretaryTreasurer Sara Whitehead in Sacramento working to meet with our legislative representatives.
San Mateo physicians meet with newly elected Assemblyman Marc Berman (center) of the 24th District.
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Why it’s important to learn about healthcare fraud
Judy Chang, MD
Healthcare fraud is expensive and drives up the cost of healthcare for everyone. It is also bad for business and, unfortunately, not uncommon. According to the Boston Globe, “The Medicare Fraud Strike Force has recovered $371 million in false Medicare claims and charged 145 people across the country in just two months.”1 American Sleep Medicine agreed to pay $15 million for billing Medicare and other federal healthcare programs for ineligible sleep diagnostic services.2 Bay Sleep Clinic agreed to pay $2.6 million to settle the U.S. attorney’s claim that they billed Medicare inappropriately.3
Our patients count on us to not only take good care of them, but to do so ethically. The more we learn about the law, the better we can comply with it. 1. http://archive.boston.com/news/local/massachusetts/articles/2009/07/30/fbi_raids_across_country_net_30_medicare_fraud_suspects/ 2. https://www.justice.gov/opa/pr/florida-based-american-sleep-medicine-pay-153-million-improperly-billing-medicare-and-other 3. http://www.sfgate.com/bayarea/article/Bay-Sleep-Clinic-owners-settle-fraud-suit-deny-10823607.php
Whistleblower
The federal False Claims Act and similar state-specific False Claims Acts place power within the hands of private citizens, allowing them to become ‘private attorney generals’
By Shauna Itri
Government spends a lot of money on healthcare. Total health spending in America in 2011 was a massive $2.7 trillion, or 17% of national gross domestic product (GDP). See D.M. Berwick and A.D. Hackbarth, “Eliminating Waste in US Healthcare,” JAMA, March 14, 2012. While no one knows how much of this funding is subject to fraud, waste and abuse, in 2012 Donald Berwick, a former head of the Centers for Medicare and Medicaid Services (CMS), and Andrew Hackbarth of the RAND Corporation estimated that fraud added as much as $98 billion, or roughly 10%, to annual Medicare and Medicaid spending — and up to $272 billion across the entire health system. Id. There are a host of federal and state statutes that provide financial rewards to individuals or companies who provide information to the government regarding alleged fraud. The primary statutes are known as False Claims Acts (FCAs). These laws are not specific to any particular type of fraud. This article will briefly summarize the statute and types of fraud that can be pursued under these laws. The federal False Claims Act and similar state-specific False Claims Acts place power within the hands of private citizens, allowing them to become “private attorney generals,” and, with
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the assistance of an attorney paid on a contingent fee basis, file a lawsuit if they have knowledge of fraud or dishonesty in certain transactions with the government. The citizens who bring a case on behalf of the government are called “whistleblowers.” Whistleblowers are provided with a financial reward if the suit is successful. The reward to the whistleblower is normally between 15% and 25% of the amount recovered. Any persons or entities with evidence of fraud against federal programs or contracts may file a qui tam lawsuit. A qui tam action must be confidentially filed in camera and under seal. The complaint and its contents must be kept confidential until the seal is lifted. The complaint is not served on the defendant. If the plaintiff violates the provisions of the seal, his or her complaint could be dismissed. A copy of the complaint, with a written disclosure statement of substantially all material evidence and information in the whistleblower’s possession, must be confidentially served on the government (United States Attorney and/or Attorney General). After the qui tam complaint is filed, often the government will seek to interview the whistleblower. The government then investigates the case by interviewing witnesses, obtaining
Judy Chang, MD, FAASM, D, ABSM, is a boardcertified adult neurologist as well as an adult and pediatric sleep specialist.
She trained at Harvard
and Stanford universities and has practiced clinical medicine in a variety of settings.
She has given
more than 45 presentations and plenary sessions
from the government and are expected to pass on to Medicaid clients; (2) Off-label Marketing — this occurs when a company, in an effort to increase sales, markets its product for uses not approved by the Federal Drug Administration; and (3) Defective Devices — if a device is defective and the company, knowing about the defect, nonetheless bills and is reimbursed for same, the government has been defrauded.
and received the Loma Linda University School of Medicine Neurology Residents’ Day Teacher of the Year Award. Dr. Chang emphasizes patient education and behavioral and lifestyle modification in conjunction with pharmacologic management of sleep disorders.
Andrew Hackbarth of the RAND Corporation estimated that fraud added as much as $98 billion, or roughly 10%, to annual Medicare and Medicaid spending — and up to $272 billion across the entire health system
claims regards from the affected governmental agency, using compulsory process such as subpoenas, or retaining experts for consultations on complex issues. If after the investigation, the government sees merit in the allegations, the government will intervene in the case. If the government does not see merit or does not have the resources to pursue the case, the government declines intervention. At this point, the case comes out from under seal and the defendant may be served with the complaint. After the case is unsealed, litigation proceeds as would be typical of other lawsuits. Certain types of fraud are common and regularly pursued under the FCAs, namely healthcare fraud. State and federal governments pay hundreds of billions of dollars each year for pharmaceutical drugs, medical devices, hospital care and nursing home care through Medicare, Medicaid and other programs. The examples of healthcare fraud that are discussed give an idea of the types of fraud that have been or could be the basis of whistleblower lawsuits. Pharmaceutical or medical device companies have been and can be charged with the following types of fraud: (1) Price Fraud — companies may conceal discounts that they receive
Hospitals and physicians have been and can be charged with the following types of fraud: (1) “Phantom Billing” — billing the government for a service that was not provided to the patient; (2) Billing for Unneeded Procedures — providing and billing for a procedure, even though the patient did not need that type or quantity of care. For example, a patient only needs a basic X-ray that costs $75, but the physician orders an MRI and related testing that cost additional money; (3) Up-coding — medical procedures have a code that determines how much the provider is going to get paid by the government. If a provider bills for a higher code — and is paid more by the government — a fraud has been committed; (4) Kickbacks — kickbacks are items of value (money, gifts, trips, meals, etc.) that are provided by one party in exchange for referrals or business from the other party. This can include waiving co-payments and deductibles; and (5) Stark Violations — there are complex laws limiting certain physician referrals. It is generally illegal for a doctor to make a referral to a business with which he has a financial relationship unless a “safe harbor” applies. For example, a doctor may not refer one of his patients to a physical therapy business that the doctor also owns.
Shauna Itri concentrates her practice on complex litigation. She has worked on a series of False Claims Act cases. This litigation has returned well over $3 billion to state and federal governments pursuant to the Federal and State False Claims Acts. Ms. Itri received a BA and an MA from Stanford University. She earned her Juris Doctor from the Villanova University School of Law. She is presently an adjunct professor at Villanova University. Ms. Itri is currently the chief operating officer and board member of the Junior League of Philadelphia.
M AY 2017 | S A N M AT E O C O U N T Y P H Y S I C I A N 5
INVESTING Healthy Financial Planning for Doctors
BY W. BEN UTLEY, CFP, PRESIDENT OF PHYSICIAN FAMILY FINANCIAL ADVISORS
I N V E S T I N G F O R D O C T O R S , or “physician wealth management,” is the same as investing for everyone else, but doctors have less time and more money, which results in higher taxes and more investment options. Doctors also ask fewer questions before they invest, so investing mistakes rank among the biggest financial mistakes doctors make.
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These factors, combined with the public’s love of watching smart people do dumb things, bring media attention to physician investing mistakes, fueling public ridicule. “Doctors are terrible with money,” people say. We hope this guide will help healthcare professionals avoid embarrassment, make more money, pay less taxes, save time and avoid large losses as they manage their money and lead their families toward financial security.
Mutual Fund Investing for Doctors Mutual funds save time for physicians since each fund employs a manager whose job is to capture returns available in the market. While it still takes time to choose a fund from the thousands of available options, this list can help physicians narrow the field of mutual fund investments.
Vanguard Funds Save Physician Investors Time and Guesswork Vanguard is the low-cost leader in mutual fund investing, which means physician investors keep more of what their funds earn. Vanguard Group founder John C. Bogle launched the nation’s first index fund in 1975. The company has consistently reduced its operating expenses such that its mutual fund expenses are only one-fifth the industry average. Today, Vanguard is the largest provider of mutual funds, managing more than $3.5 trillion. Vanguard’s index funds take the guesswork out of investing for doctors by making it easy to gain broad exposure to U.S. stocks, foreign stocks, U.S. bonds and foreign debt. Vanguard’s LifeStrategy and Target Retirement series of funds repackage Vanguard’s core “total” index funds with no added cost so that doctors can meet some, if not all, of their investment objectives by owning a single mutual fund. While index funds like these still expose doctors to investment risks, they diversify away the emotional burdens and risks that go with picking stocks and individual bonds.
Fidelity’s Spartan series of index funds competes fiercely with Vanguard’s index funds when it comes to low operating expenses, so physicians choosing funds in their workplace retirement plan should consider these among their most favorable investment options. Fidelity’s Freedom series of lifecycle, or “target date,” funds helps physicians avoid investing mistakes with professional management that gradually shifts the fund’s asset allocation to a more conservative mix of stocks and bonds as retirement approaches. Doctors investing in Fidelity’s target date funds should be aware that they come in two flavors: the original Freedom funds (sometimes shown as “Freedom K”) and the Freedom Index funds (sometimes “Freedom Index W”). Only the Freedom Index series of funds offers the advantages of low-cost index investing.
DFA Funds Let (Some) Physicians Invest Like a Nobel Laureate Dimensional Fund Advisors, or “DFA funds,” use a scientific approach that promises higher expected returns by focusing on small cap and value stocks. While few physicians have heard of the DFA funds, some may recognize professor Eugene Fama, the firm’s leader and winner of the 2013 Nobel Prize for economics. Fama’s research also inspired John Bogle to create the first publicly available index fund. To protect their funds’ investors from “hot money,” DFA rigorously vets financial advisors before allowing them to offer DFA funds to their clients, so physicians can access these funds only through an approved advisor. One exception is the Utah Education Savings Plan, which features both DFA and Vanguard funds in its lineup of investment options that are available to the general public in all states. Physician Family Financial Advisors is a DFA-approved advisory firm.
Fidelity Is the One Doctors Choose Most When Investing for Retirement Fidelity provides retirement plan services to more doctors than any other financial services company. On average, physicians will pay more for Fidelity funds than funds offered by Vanguard, but Fidelity’s integrated approach to retirement plan services means the total cost of ownership (including the costs of plan administration) is lower than most other providers of physician retirement plans.
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Healthy FINANCIAL PLANNING
average, each customer has $29,000 invested with them. With fee rates starting at just 0.25%, the firm grosses less than $73 per customer, a number so tiny that prospective customers may question the firm’s viability and the validity of this business model.
10 Questions Every Physician Should Answer Before Making an Unconventional Investment
Robo-advisors Appeal to Young Doctors Investing with Smaller Dollars Betterment and Wealthfront offer computer-driven investment advisory services that can save taxes for physicians by automating the process of tax loss harvesting. Both services employ low-cost exchange-traded funds (ETFs) managed by Vanguard, Blackrock (iShares) and other ETF providers. Robo-advisors may not be a perfect fit for the average physician investor. Taking a human advisor out of the process slashes costs, but it forces physicians to spend more time and energy figuring out their asset allocation — a crucial factor in the risk/reward equation and a major determinant of overall investment outcomes. While young doctors who are just starting to invest may enjoy robo-investing, older physicians — particularly those who have substantial gains in positions in taxable accounts — should avoid these services since robo-advisors cannot figure these positions into their models. Robo-advisors do not have the ability to accommodate or “invest around” legacy positions with a low-cost basis. Taking an account like this to a roboadvisor will require a full liquidation of the account to cash and may result in the payment of substantial capital gains taxes and perhaps the Medicare surtax. Doctors in small clinics who are stuck with high-cost retirement plans offered by insurance companies should take note of the robos. Betterment offers a workplace retirement program that may be a good fit for them. Anyone who chooses automated investing should be aware that the robos are a fledgling enterprise. Betterment, the largest independent robo-advisor, reports serving “over 175,000 customers who invest more than $5 billion,” so, on
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As highly visible figures who earn more than the average worker, physicians are approached for unconventional or alternative investments from time to time, and that’s where most doctors will make a major financial mistake. Fear of “missing out” causes many doctors to take the plunge, while a promised tax benefit causes others to veer away from tried-and-true investments like mutual funds. While there is a chance that you might get in on “the next Microsoft,” there’s also a chance that things will not go so well in an unconventional investment. Before you put your capital at risk in the next deal, ask yourself these 10 questions. You might increase the odds that you will receive a return of your investment in addition to the return on your investment.
“Why am I being asked to invest?” The obvious answer here is “because they need the money” with “they” being the people who are asking you to invest. But there’s more to it than meets the eye. In a capitalist country like the United States, there’s a ton of money out there seeking excellent deals. What makes you so special that you have been tapped to tackle this deal? Is it your background and experience with similar deals? Or is it your obvious wealth and your naïveté? Seek a convincing answer that stands up to logic.
“Why is the opportunity being presented in this way?” Most deals offer to make you a shareholder or a partner, while others may offer to let you be a lender. Some offer a choice of both. Your position relative to the investment will dictate your property rights, and your property rights will determine both the return you might expect and how to unwind the deal if it goes badly. Your position in the deal also gives you some idea about the offering party’s motivation and a clue about how the deal will be handled.
“What will they do with my money?” If you are expecting them to be the stewards of your money, then you need to know what — exactly — they will do with
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it. Will your money be used to build a building? Or tide them over until more cash comes in? Or refinance an existing loan? Or develop a product? You want an answer that tells you how they plan to create wealth with your money. If there are written materials available (like a business plan, prospectus or private placement memorandum), you should dig through it to find the answers.
“How do I know they’re telling me the truth?” When you judge the quality of an investment opportunity, consider the quality of the people involved with the deal. Take a look at the names of the people involved. Try to determine if they are who they say they are, and find out how long they’ve been doing what they say they’ll do for you in this deal. It may be tempting to accept a colleague’s appraisal of their character, but you should do your own homework to verify the offering party’s credentials. Insist on a background check if you’re not absolutely certain about their integrity.
non-traditional investment opportunities require large sums of cash, you may already be in a financial position that puts you within easy reach of your goals without the need for higher returns (and higher risk). Double-check your financial plan to make sure this risk is truly necessary.
“How do I get my money back?” This is perhaps the “dumbest” question of all, but even smart physicians fail to ask it. And surprisingly, the answer can be somewhat elusive. Perhaps there will be an initial public offering of stocks or bonds and you’ll be cashed out. Or maybe you will receive your capital back in periodic payment over a number of years. Investors are occasionally stunned to find out that the investment they’ve made has no ready market (as may be the case with private placements and some real estate investment trusts), so they cannot sell their new-found investment because there’s no one who is ready to buy it.
“What’s my recourse if things go wrong?” Try to find out who you’ll be dealing with when things don’t go according to plan. Are they in a financial position to make you whole again? What does their backing look like? Is there any form of bond or assurance? And do they have the means to lawyer you to death? While a risk is a risk and you should expect some chance of loss, you need to know how things might wind up if the deal does not go as promised.
“What are my alternatives?” While this particular deal might sound appetizing, you may be surprised to learn that deals like this are done all the time, and that similar deals are done on better terms. Once you’ve been enticed to consider unconventional investments, you might find yourself living in a whole new world as an investor. And as long as you’re there, you might as well explore the alternatives and consider diversifying by investing in more than one deal like this one.
“Do I really need to bear this risk?” Unconventional investments sometimes promise greater rewards than plain vanilla offerings like publicly traded stocks, bonds and mutual funds. And by the same token, they usually entail more risk. Since many M AY 2017 | S A N M AT E O C O U N T Y P H Y S I C I A N 9
Healthy FINANCIAL PLANNING
“Could I lose more than I invested?” If you are being asked to buy a liability-generating asset like real estate and leased equipment or if you become a partner in a business that goes belly up, your investment might sue you, or at least run up some nasty legal bills. Don’t assume that only your invested capital is at risk; sometimes an asset becomes a liability.
To protect your hard-earned money, there are many other questions you should ask before making an unconventional investment. Check with your attorney or investment advisor before you commit your capital. We hope that our Guide to Investing for Doctors can help you make sense of the personal finance issues that affect doctors while helping you avoid mistakes and seize opportunities as you and your family plan for financial security that can last a lifetime.
“What are the political risks?” W. Ben Utley, CFP, is president of Physician Family Financial Advisors, a fee-only firm helping doctors save taxes and time while managing student loans, financing a home, saving for college and investing for retirement. To learn more, call (541) 463-0899 or visit www.physicianfamily.com.
When you put your capital to work, you may find that it competes with the interests of others close to you. Consider the value of your business relationships, family ties, and friendships — and take the long view when you do. These people may be more valuable to you over the years than the money you could make from an investment that pushes them away from you.
SAN MATEO COUNTY MEDICAL ASSOCIATION
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San Mateo County Medical Association Distinguished Service Award Nominations Requested The Distinguished Service Award honors an individual who exemplifies the medical profession's highest values:
commitment to service community involvement leadership dedication to patient care
(Achievements might include: promoting medicine and the betterment of the public health; demonstrating the values of the medical profession through leadership, service, excellence, integrity, and ethical behavior; enriching patients, colleagues, and the community through dedicated medical practice or service; or offering improved access to quality health care for an underserved patient population.)
Award will be presented at SMCMA's Annual Meeting of Members on Friday, June 16, 2017. Submissions must include: 1) the name of the nominee; 2) SMCMA member submitting nomination; 3) a brief statement why the candidate should be considered for the Award.
Submit nominations by 5:00 pm Friday, May 12, 2017 to SMCMA, DSA Award, 777 Mariners Island Blvd, #100; San Mateo, CA 94404; or Email: smalone@smcma.org
M AY 2017 | S A N M AT E O C O U N T Y P H Y S I C I A N 11
SAN MATEO COUNTY IN THE NEWS
San Mateo County Ranked in State for Overall Health by Sheri Carr, Physicians News Network
SAN MATEO COUNTY has moved to California’s top spot in the newly released 2017 County Health Rankings from the Robert Wood Johnson Foundation (RWJF). San Mateo takes over the top spot from Marin County, which had been previously ranked No. 1 for seven consecutive years.
The report, which measures the current overall health of nearly every county in all 50 states, aims to help counties understand what influences the health of their residents and how long they will live. The report looks at a variety of measures thought to affect the future health of communities, such as access to healthy foods, rates of smoking, obesity, and teen births.
One of the major findings of the report was that more Americans are dying prematurely — before the age of 75. The report found that premature death increased most among individuals ages 15 to 44, with drug overdose and other injury deaths being major contributors to the rise.
To view the report visit:
www.countyhealthrankings.org.
The 57 counties in California were ranked in specific categories as well. San Mateo ranked:
1 in Health Outcomes ÆÆ 5 in Quality of Life ÆÆ 2 in Health Factors
ÆÆ
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5 in Clinical Care ÆÆ 1 in Social & Economic Factors ÆÆ 29 in Physical Environment ÆÆ
M AY 2017 | S A N M AT E O C O U N T Y P H Y S I C I A N 1 3
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