By Tracy Weber and Charles Ornstein, ProPublica 

By Karla Bowsher, BrowardBulldog.org 

A whistleblower apparently sparked the ongoing federal anti-kickback inquiry into allegations of false Medicare and Medicaid claims at Broward Health.

U.S. Department of Health and Human Services (HHS) agents surfaced the probe in May 2011 with a subpoena demanding records related to the public health care system’s business dealings with more than two-dozen doctors.

“We have reason to believe there’s a whistleblower,” said Broward Health General Counsel Sam Goren. He explained that belief is “based on the nature of the subpoena and its substance,” as well as the experience of Broward Health’s Washington, D.C. lawyers.

Under the False Claims Act, private individuals with knowledge of fraud against the government can blow the whistle – and seek rewards – by filing a lawsuit on its behalf. By law, such lawsuits are brought under seal to allow the Department of Justice time to investigate and decide whether to help prosecute the lawsuit.

An HHS official declined to say whether a whistleblower is involved in the Broward Health case.

BrowardBulldog.org, however, has learned that HHS agents are conducting the current civil inquiry jointly with the Department of Justice in Washington, D.C. and the U.S. Attorney’s Office in Miami.

Does that mean there is a parallel criminal probe? “Not to our knowledge,” said Goren.

Millions of pages of district documents have beenhanded over to federal authorities, Goren said. He explained it took so long because the district’s lawyers sought to limit how much information had to be turned over.

Broward Health, whose legal name is the North Broward Hospital District, did not finish producing all of the subpoenaed records until last month.

SUBPOENA SERVED

The 15-page subpoena from HHS’ Office of Inspector General (OIG) demanded Broward Health’s records concerning its contracts, negotiations and agreements with 27 doctors and one doctor-run business, North Broward Orthopedic Associates.

The kinds of documents sought included tax returns, financial data and other information regarding compensation, patient referrals and hospital admissions by the 27 doctors since January 2000.

The subpoena also required Broward Health to produce proof that it had taken steps, like employee training, to ensure that federal anti-kickback laws were not violated.

Click the chart for the complete list of names

State corporate records state that North Broward Orthopedic Associates was run by physicians Michael Abrahams and Sein Lwin, and was involuntarily dissolved in 2008 when no annual report was filed.

“I just happened to be the representative for the group,” said Lwin, one of the 27 doctors named in the subpoena. “It has nothing to do with my practice.”

Broward Orthopedic Associates’ contract with Broward Health ended more than five year ago, Lwin said, and he had not been served a subpoena himself.

Lwin is one of six orthopedic surgeons named in the subpoena. Seven other physicians are cardiologists or chest surgeons – the most common specialty among the 27 identified.

Cardiologists generally treat more Medicare patients than other types of specialists because cardiac problems are common among the elderly.

Most of the doctors named in the subpoena – 18 – belong to the Broward Health Physician Group, meaning they are district employees rather than independent doctors in private practice.

INVESTIGATION ONGOING

The tax-subsidized Broward Health has hired the Arent Fox law firm to represent it in the matter. Attorneys Linda A. Baumann and Jacques Smith specialize in false claims issues. Both declined comment because the investigation is ongoing.

Alicia Valle, spokeswoman for Miami U.S. Attorney Wilfredo Ferrer, declined to comment.

Agent Omar Perez with the HHS Office of Inspector General’s Miami Lakes regional office declined to discuss specifics of the inquiry.

“We’re still … inquiring whether there’s some substance to the allegations that were raised,” he said.

By law, whistleblower lawsuits filed under the False Claims Act must remain under seal for 60 days. If the government wants to keep it sealed after that, it must demonstrate “good cause” to a judge every 60 days

PROGNOSIS UNKNOWN

If Broward Health submitted false or otherwise improper insurance claims to Medicare or Medicaid, the district could be in violation of the federal Anti-Kickback Statute or the Stark Law.

The Anti-Kickback Statute prohibits offering or receiving incentives for patient referrals that involve any federal health care program, such as Medicare and Medicaid.

Criminal offenders can be sentenced to up to five years in prison and fined up to $25,000 per violation. Civil penalties can include fines of up to $50,000 per violation.

The Stark Law, also known as the Self-Referral Law, prohibits doctors from referring Medicare patients to entities, such as hospitals, to which they have financial ties. It also prohibits those entities from billing Medicare for such referrals.

Violators can be required to refund illegal payments and pay civil fines up to $15,000 per violation.

Broward Health commission Chair Joel Gustafson did not respond to interview requests.

Broward Health Chief Executive Frank Nask, through attorney Goren, declined to comment because the investigation is ongoing.

Karla Bowsher can be reached at kbowsher@browardbulldog.org

By Karla Bowsher, BrowardBulldog.org 

Broward General Medical Center

A new state-ordered study compares the value of Broward Health’s operating assets to those of a “distressed hospital” worth “significantly below book value.”

The study by the audit firm Deloitte determined Broward Health’s fair market value to be $271-$320 million, without counting the tens of millions of dollars in annual property tax revenues it receives. If those taxes are included, Broward Health’s value rises to $503-$532 million – or “slightly above book value,” Deloitte’s 69-page report says.

The firm will present its findings to Broward Health’s governing board at a public hearing at 5 p.m. today at the Westin Cypress Creek in Fort Lauderdale.

The hearing is a requirement of Florida’s “Sale or Lease” law, passed last March at the urging of Gov. Rick Scott, that required all public hospitals to determine how much they are worth and evaluate the possible benefits of selling or leasing their facilities to a private corporation.

Before the law was enacted, Broward Health’s board spent many months looking at whether to privatize. That effort, however, stalled for reasons that remain unclear.

‘NO CONCLUSION’

The North Broward Hospital District, whose business name is Broward Health, operates four hospitals and 22 other medical facilities. Its flagship is Broward General Medical Center in Fort Lauderdale.

As a special taxing district, it receives property tax dollars from Fort Lauderdale to Parkland to help care for indigent patients. Last year, the district took in $154 million in tax revenues, according to an annual report.

Broward Health’s board of seven governor-appointed commissioners voted on July 25 to hire Deloitte for $275,000 to put a price on the district.

Deloitte’s final report, submitted to Broward Health last week, analyzed the district’s fair market value in two scenarios: with and without tax revenue.

“Deloitte made no conclusion or recommendation in the report,” Broward Health CEO and President Frank Nask said in an emailed statement. “The next step is for the board to review Deloitte’s report and vote on accepting it as a matter of public record.”

Frank Nask, president and CEO of Broward Health

Commissioners Debbie Kohl and David Di Pietro, board members appointed by Gov. Rick Scott, did not return phone messages seeking comment.

A PUBLIC PROCESS?

The board began to discuss the idea of leasing its facilities to a community nonprofit corporation prior to the passage of the federal Patient Protection and Affordable Care Act of 2010. Also known as “Obamacare,” the legislation requires uninsured individuals to obtain private health insurance or pay a penalty starting in 2014.

Nask broached the subject at a board meeting on July 22, 2009.

“If everyone gets insured, then we would not receive tax dollars,” he said, according to the meeting minutes.

At a special meeting on Sept. 10, 2010, the board passed a resolution authorizing Nask “to initiate and facilitate” the lease process.

Commissioner Clarence McKee, an appointee of former Gov. Charlie Crist, was the lone vote against the resolution. He said it seemed rushed and that he needed more information and time to make an informed decision.

“This looks like a done deal,” he said, according to the minutes.

The board acted without seeking public comment, fueling a backlash.

At a public tax hearing a few days after the meeting, critics berated board members for not allowing them to voice their opinions before the vote.

Four town-hall style meetings were later held about the matter. The resolution was ultimately repealed and replaced with a slightly different version.

The new resolution authorized Nask “to explore and to evaluate all potential options for the district to respond to the impacts of federal healthcare legislation … including, but not limited to, the potential lease of the district’s facilities.”

But according to Nask, the possibility of transitioning the public hospital system into a community-based nonprofit that could lease or sell its assets is now moot.

“As far as a transition process from 2010, the board simply made a motion to study a possible transition,” Nask said. “There’s nothing to proceed with because the law changed.”

By Fred Schulte, The Center for Public Integrity 

Dr. Farzad Motashari

The nation’s top health information technology official has launched an internal review to determine if electronic health records are prompting some doctors and hospitals to overbill Medicare.

Dr. Farzad Mostashari, the Obama administration’s National Coordinator for Health Information Technology, said in an interview Monday afternoon that his policy-setting committee of experts would examine the issue and make recommendations on how to address it.  (more…)

By Dan Christensen, BrowardBulldog.org 

Former Department of Children and Families Secretary Bob Butterworth

Florida’s Department of Children and Families awarded a $44 million-a-year contract to privatize the management of mental health services in Broward without required rules in place to promote public scrutiny.

The Broward Behavioral Health Coalition, an upstart not-for-profit led by former DCF Secretary Bob Butterworth, won the award last March amid allegations of bid manipulation.

Final contract negotiations are underway and state officials expect a contract to be signed by Nov. 1.

But documents obtained by Broward Bulldog.org show DCF has not adopted administrative rules prescribed by the Legislature in 2008 that specify how regional managing entities like Broward Behavioral should be chosen and run.

DCF Secretary David E. Wilkins acknowledged his agency’s inaction in a June 26 letter to State Sen. Ellyn Bogdanoff, the Fort Lauderdale Republican who co-chairs the Legislature’s Joint Administrative Procedures Committee.

“The department’s approach to implementing managing entities…has been in a process of refinement over the past several years,” said Wilkins.

“With our approaches and strategies regarding managing entities changing over time, rule-making was not appropriate.”

Bogdanoff queried Wilkins after receiving a May 2 letter from the Florida Council for Community Mental Health, a statewide association of health-care providers. The council complained that DCF was looking to award contracts without rules “that meet any standard for public scrutiny, transparency or public participation.”

Bogdanoff later told Wilkins, “The department appears to be acting outside the scope of the…rule making process, which is designed to ensure public participation.”

She also asked Wilkins to halt the procurement process “until rules are formally adopted” – including the Broward Behavioral deal

That did not happen.

BOGDANOFF BACKS OFF

But Bogdanoff said Friday that she had a different view after speaking with Wilkins.

The secretary, she said, sincerely wants to make DCF more efficient and “deserves some latitude” as he seeks to achieve estimated savings of $177 million over the next four years – dollars Wilkins has pledged will be redirected to patient care.

The money is to come from mandated administrative cost reductions.

“He was not necessarily violating the rule-making process,” said Bogdanoff, who is currently running for re-election. “He does not believe that this is different from any other procurement issue and that the department didn’t need rules. I don’t think he’s wrong about that.”

Florida, the nation’s fourth most populous state, currently ranks 49^thin the nation in per capita funding for mental health services, according to the DCF’s website.

State Sen. Ellyn Bogdanoff, R-Fort Lauderdale Photo by: Mark Foley

In his reply letter, Wilkins told Bogdanoff that “entrenched interests” were opposing his reform efforts.

PRIVATIZING HEALTH

DCF is actively privatizing oversight of substance abuse and mental health services around the state. Those duties include administration of an array of government-funded services such as crisis intervention and detoxification.

By law, only nonprofits can serve as managing entities. But several groups , including Broward Behavioral, have major for-profit subcontractors – fueling accusations that the nonprofits are mere front organizations.

Broward Behavioral’s subcontractor is Concordia Behavioral Health, a Miami company led by Miami businessman Carlos Saladrigas.

Butterworth, a former Broward sheriff, judge and Florida attorney general, is the chairman of Broward Behavioral and also its lead negotiator with the state.

Butterworth did not respond to a request for comment, but in June he told Sun-Sentinel columnist Michael Mayo that Concordia is paying him to serve as its lobbyist and attorney.

The loser in the race to become Broward’s first managing entity was the Partnership for Community Health, a group of established mental health providers led by Dr. Steven Ronik of Fort Lauderdale’s Henderson Behavioral Health.

Broward Behavioral and Partnership for Community Health were the only two companies last winter that submitted sealed bids for the work.

WINNER LACKED PAPERWORK

Six of eight state evaluators ranked Partnership for Community Health higher, and it received the highest total score. Moreover, those officials deemed Broward Behavioral “non-responsive” because it did not include paperwork demonstrating financial stability.

Typically, companies that submit non-responsive bids are disqualified.

But a “wrinkle” in the process – as described by DCF’s general counsel – instead allowed DCF to bypass competitive bidding and negotiate directly with whomever it wanted.

This time, Broward Behavioral came out on top.

The Partnership for Community Health filed a bid protest shortly after the decision that later landed in court. It alleged unnamed state officials had steered the contract to Butterworth’s group and also insulated themselves from administrative and judicial review.

An appellate panel dismissed the challenge because the Partnership for Community Health did not post a required appeal bond.

The court did not address the underlying corruption allegations, but a DCF spokesman said they were false.

In his June letter to Bogdanoff, Wilkins said DCF now has sufficient experience to begin the rule-making process.  An initial workshop meeting was held July 30. Officials said they expect the process to take 18 months.