Welcome to the Pondera FraudCast, a weekly blog where we post information on fraud trends, lessons learned from client engagements, and observations from our investigators in the field. We hope you’ll check back often to stay current with our efforts to combat fraud, waste, and abuse in large government programs.
The United States government and several states recently announced that they had settled a $465 million lawsuit against Mylan Inc., the maker of the EpiPen. The Department of Justice stated that Mylan had “knowingly” misidentified the EpiPens as generic to reduce the number of rebates it owed to state Medicaid programs. All drug manufacturers, including Mylan, must agree to the rebate program to be eligible to supply drugs through Medicaid.
Those of you that follow these types of stories may recall that Mylan was accused of price gouging last year when they increased the price for a 2-pack of EpiPens to $600—a 400% increase over 6 years. In addition to the price gouging accusations, Mylan was also forced to settle a separate Medicaid billing complaint in 2009.
EpiPens, for those of you unfamiliar with them, are self-injectable medical devices used to offset often life-threatening allergic reactions to bee stings, foods, and medications. As a parent of two EpiPen-carrying children, I can certainly attest to the importance of the device. I suppose that’s part of the reason Mylan felt comfortable increasing their prices so dramatically.
What really bothers me about this case is the fact that the settlement represents only 134% of the total amount of damages incurred. This 34% “penalty”, on top of what was already owed, isn’t much of a deterrent against improper billings, as evidenced by the fact that Mylan has been busted twice in just eight years. Consider that this is a company with over $11 billion of revenue in 2016. Also consider that Mylan’s stock price increased 1% on the news of the settlement, no doubt reflecting the fact that investors expected a larger settlement.
In my opinion, this settlement sends the wrong message to unscrupulous businesses. They may look at these numbers and figure that "intelligent cheating" could be quite profitable, encouraging them to simply write off lawsuits as a cost of doing business. This is despite the fact that they would be violating the federal False Claims Act which addresses contractors who defraud the government.
Regular readers of our blog know that Pondera has strong feelings about the need to protect the elderly from abuses while they are being cared for in facilities and their homes. In fact, in April of this year we wrote about the devastating abuses in nursing homes that continue to plague the elderly. Now, a number of states are stepping up the pressure on the federal government to allow them to more effectively fight the problem.
In a letter dated May 11th, 37 states’ attorney generals requested that the U.S. Department of Health and Human Services eliminate several restrictions on the use of Medicaid Fraud Control Unit (MFCU) funds. In the letter, they point out that 10% of elderly Medicaid recipients who receive care in their homes will be abused. They also cite a report that indicates that only 1 in 24 incidents are ever reported.
Specifically, the states asked for the ability to use the funds to “investigate and prosecute abuse and neglect of Medicaid beneficiaries in non-institutional settings” and to “screen complaints or reports alleging potential abuse or neglect”. In effect, this would allow the states to close “loopholes” in the use of MFCU funds that were previously only available to investigate abuses in facilities. And they point out that Medicaid currently covers over 6.4 million people over the age of 65.
At Pondera, we are pleased to see this increased attention by the MFCU. In addition to physical abuse, we also see other types of in-home abuses including identity theft (often strong-armed) that leads to theft from other government programs. We applaud the states’ continuing efforts to address this heinous problem and hope their progress is dramatic and expedient.
One of my favorite websites, paymentaccuracy.gov, has received a number of updates which may provide some insight into the current administration’s priorities. If you haven’t done so already, I encourage you to visit the site as it provides improper payment information on the government’s high-priority programs: those that report over $750 million of improper payments in a year or have not established or reported on their error rates.
The current version of the site includes many of the usual suspects including Medicaid ($36.3 billion in errors), Medicare fee-for-service ($41.1 billion), and the Earned Income Tax Credit ($16.8 billion with a whopping 24% error rate). SNAP continues to be listed but still does not provide relative numbers because of inaccurate state reporting—something we have discussed in previous posts.
Other items of note are the inclusion of three Veterans Affairs programs for Disability Compensation, Community Care, and Purchased Long Term Services and Support. While the .59% error rate on the $64 billion Disability Compensation plan appears surprisingly low, the 75.86% error rate for the $4.7 billion Community Care program is likely the result of new reporting requirements… at least I genuinely hope so.
Other high error-rate programs include school nutrition services (both breakfast and lunch), student loan programs, and Unemployment Insurance which ticked up to 11.65% this year.
Regardless of political leanings, I think we can all agree that we want our tax dollars going to those who need them the most. And the transparency provided by paymentaccuracy.gov is a great step toward this goal. My hope is that the government will continue to provide easy access to this information. I am still disappointed each time I visit the expectmore.gov website (which reports on program performance, not just fraud, waste, and abuse) where I see the following message:
“Expect More.gov was an initiative of the George W. Bush administration. This website has been archived and is posted here as an historical resource. It has not been updated since the end of 2008 and links to many external websites and some internal pages will not work.”
Last month CNN published a horrifying report on sexual abuse in America’s nursing homes and assisted living facilities. The report provided details on dozens of assaults, rapes, and other incidents that, quite frankly, were extremely difficult to read. In my opinion, however, this level of detail is probably necessary to shock people into taking action against what CNN rightly labelled “an unchecked epidemic”.
The numbers themselves are devastating. Approximately one million senior citizens are currently residing in 15,000 government-regulated long term care facilities. Since 2000, it appears that over 16,000 cases of sexual abuse have been reported, but the number is probably higher because of complex reporting systems and processes. And it’s impossible to determine the number of unreported cases.
Between 2013 – 2016, CNN found that 1,000 government-regulated facilities had been cited for mishandling or failing to prevent sexual assaults. 100 of the facilities had been cited numerous times. And despite this, only 226 facilities were fined just $9 million. Only 16 of the facilities were cut off from Medicaid and Medicare!
What is equally disturbing to the actual cases of abuse is the blatant disregard of safeguards and even the intentional impeding of investigations. Consider a case here in California where the employer allowed a nurse to continue working for weeks after reports of him kissing and fondling a female resident. This crime, by the way, resulted in only a $27,000 fine.
At Pondera, we often say that fraud and abuse is most prevalent at the intersection of large amounts of money and vulnerable populations. This makes nursing homes “ground zero” for abuse because it is here that the escalating costs of long term care combine with dementia and other health issues that can make senior citizens problematic witnesses.
Among several recommendations made by CNN was a call for improved reporting systems. We agree that this is an important piece of the solution. It will provide greater transparency and help regulators identify trends and clusters of abuse. But clearly, stricter oversite and enforcement are needed. So too is the type of no-nonsense reporting that CNN did for this report.
A recent arrest in New York City illustrates a common fraud method that Pondera has been talking about for years: falsifying an identity (of an individual or business) and using it across multiple states, or in this particular case, across multiple subsidy programs within a state.
In February of this year, the New York State Attorney announced the arrest of several individuals allegedly involved with a fraudulent medical supply company. The company’s owner operated under a false social security number and billed the State Medicaid system for an expensive nutritional formula required by patients with feeding tubes. In actuality, when they delivered the service at all, they dispensed lower-priced Pediasure to dramatically increase their profits—apparently ignoring the health consequences to the patient.
But, as is often the case with bad actors, they didn’t stop there. In addition to their fraudulently obtained Medicaid profits, the fraudsters also used their fake socials and claimed income of less than $800 per month in order to qualify for Welfare payments. This despite the fact their medical “business” incomes were over $180,000 per year. It would not surprise me to learn that these same people were operating in other subsidy programs or in neighboring states.
This is a disturbing, but somewhat logical, pattern that we see again and again. When someone goes to the trouble of creating a fake identity or business, they use it to generate as much income as possible. They “fly below the radar” of each individual program (or state) to avoid detection, but the fraud can be very lucrative in aggregate.
The obvious solution to this is increased cooperation and data sharing across programs within a state and across states. The federal government has made significant efforts to support data sharing including the List of Excluded Individuals and Entities (LEIE), the Death Master File, and the Prisoner Update Processing System (PUPS) which can help identify claims that are fraudulently made by ineligible, deceased, or incarcerated identities.
Our hope is that these efforts expand, including at the state level, where multiple agencies cooperate to identify cross-program fraud schemes. It is not enough to detect and then stop individual incidents of fraud. Many of these incidents are too small, when viewed as discrete occurrences, to warrant prosecution. Knowing this, enterprising fraudsters “sprinkle” their claims across multiple jurisdictions to avoid attention.
Unfortunately, as was the case in New York, even these smaller, distributed fraud efforts can have an impact on patient health. The good news is that New York detected and put an end to this incident. But we all know there are thousands of similar cases each year.
As a company, Pondera is closely following the comments coming from the incoming administration about how they are approaching government efficiency and entitlement reform. Paul Ryan, in particular, has made several statements about the Affordable Care Act (Obamacare), Medicare, and Medicaid. This post provides some of our thoughts around how these changes may affect fraud, waste, and abuse.
While changes are clearly coming to Obamacare, this week Speaker Ryan also hinted at potential changes to Medicare and Medicaid. In Medicaid, where Pondera works with multiple states to detect fraud, Ryan hinted that the administration would consider offering tax credits in place of expanding the number of Medicaid recipients. This is necessary because Medicaid expansion, a byproduct of Obamacare, shares its fate with Obamacare.
While the tax credit idea is interesting, it is certainly not without its own problems. Tax credits, which unlike tax deductions offer dollar-for-dollar savings off bottom line taxes owed, are an attractive target for fraudsters. In fact, the Earned Income Tax Credit (EITC), which offers tax breaks to low income Americans, suffers from a 23.8% improper payment rate in 2016. This is one of the highest rates for any government program translating to $15.6 billion in waste.
On the surface, it seems the administration’s idea may shift much or all of the fraud problems in Medicaid expansion from health departments to state tax collection agencies. Here is one thing we can be sure of though: as long as there are large amounts of money in these programs, there will be bad actors who will attempt to defraud the system. And experience shows us that they will create innovative and technologically-advanced methods to support their efforts.