The Whistleblower and the Adventist Healthcare Corporation—an Update

[Note: If you have read this report already, scroll down to Chapter 5!]

Chapter 4: The AHS Response

I made it clear to Kevin Edgerton that in Chapter 4 of this series, I would post only material provided by the corporation without comment. After my News Editor received his letter, along with a pdf file containing AHS’s omnibus litigation, I again contacted Mr. Edgerton’s office by phone. I was told he was not available. I then left a message that I would like him to contact me regarding some of the questions his letter generated. He never returned my call.

To: http://www.atoday.org
Re: Andrew Hanson’s multi-part review of YouTube video

We would like to clarify information that has recently appeared in Adventist Today regarding a ormer AHS employee and self-described whistleblower.

The former employee accessed, downloaded and removed without authorization confidential patient records and confidential litigation documents from the work files of other AHS employees. After unsuccessful attempts to retrieve the confidential documents directly from the former employee, AHS filed suit in June 2009 in order to fulfill its HIPAA obligations and maintain the confidentiality of the removed patient records and litigation documents.

In response to AHS’ action, the former employee began describing herself as a whistleblower and filed various patient, whistleblower and retaliation claims with federal and state investigative agencies and the court. Regardless of how the former employee describes herself or her motives, the facts are that she removed confidential AHS documents, that AHS had a legal obligation to
recover those confidential documents, and that AHS was forced to file suit after the former employee refused to return them.

To date, none of the investigative agencies–federal or state–has found merit in any of the former employee’s claims against AHS. In the pending lawsuit, the court inspected certain removed documents and ordered approximately 1,000 pages of confidential documents be returned to AHS. More recently, after conducting a hearing, the court dismissed all of the former employee’s self-described whistleblower, retaliation and other claims against AHS. Based on the
former employee’s delay and obstruction of the court process, the judge also held her in contempt of the court. AHS expects the court to issue final rulings in the lawsuit before year end.

Adventist Today did not speak with anyone at Adventist Health System before publishing the one-sided description of the events. Although it is Adventist Health System’s practice not to discuss pending litigation in the press, this statement has been submitted to provide more complete and accurate information on this matter.

Sincerely,

[signature]

Kevin Edgerton
Executive Director
Marketing & Communications

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Below are scans of the Omnibus Litigation. You can view them individually by clicking the images or download the entire document in PDF form here.

Wednesday, September 19, 2012

Chapter 5: [An Update]

There is nothing like the frustration of a reporter that has a compelling story to tell but discovers that that story cannot be told. As a consequence, Chapter 5 contains the material I planned to include in an Epilogue. Patricia will now have the last word in Chapter 6.

Patricia Moleski is telling the truth. I am convinced of that fact for the following reasons:

She is a credible witness. As a retired schoolteacher and university professor, I’ve been told a lot of stories that were lies or half-truths. I knew immediately that Patricia wasn’t lying or even shading the truth. He body language said so; her willingness to take a lie detector test, the fact that she named names and confronted her accusers in court; the consistency of her story as recounted in legal documents and during my interrogation of her; and her amazing ability to support her story with accurately recalled dates, names, situations, and places.

The question then became, is she a former employee out to revenge herself on the employer that fired her; a nut case; a “gold digger”. I could find no evidence that she was any of these things. In fact, the harder I looked, the more evidence I discovered that she acted to insure the safety and legal rights of AHS patients and employees and to protect the corporation she loved. I could find no evidence that she was a nut case based on her exemplary performance on the job previous to her refusal to make “deletions” that she considered to be unethical and illegal, her emails to her superiors, court documents, letters to professional agencies, or in her conversations with me. In fact, her story was so credible that the FBI used her as an informant for ten months. And I could uncover no evidence of a “for-profit” motive.

Finely, she is a practicing Christian who was thrilled to be hired by a Christian organization. She took AHS training to become a Spiritual Ambassador, and was an active member of a prayer group. She had begun attending the local Adventist Church and sent emails to AHS pastors to assist them in implementing prayer teams at all 41 health facilities for patients and employees. Then her world fell apart. She has never once used the word “revenge” in our conversations. She uses the words “vindication” and “vindicated” often but “justice” only rarely. She has already forgiven her tormentors and prays that they will “just tell the truth”. And that would be the end of it as far as she is concerned.
http://www.youtube.com/watch?v=F91hN9nR1KA

CERNER’s computer based hospital recordkeeping program was inadequate and “buggy” as a recordkeeping system during the time Patricia was an IT employee. Failures such as the ones specifically cited by Patricia have been documented in other CERNER hospitals and in many, if not all, computer based systems worldwide.

Adventist Hospital Systems has done everything possible to deny Patricia whistleblowing status. Rather than providing evidence to counteract Patricia’s claims of malfeasance, they have attempted to destroy her reputation and her protection as a whistleblower. Their latest attempt to silence her legally rests on the claim that she removed from AHS headquarters “approximately 1000 pages of [unidentified] confidential documents” without authorization. Something she denies.

Patricia states that thousands of AHS facility employees had access to laptops that were taken home daily and none of these employees are questioned about their actions when they dialed in from home. She was only interrogated and harassed after she reported the unethical deletions to the Global Compliance Hotline.

Electronic hospital patient and employee records can be permanently changed after initial input. HIPPA only “advises” that responsible persons should be tasked for this assignment. Patricia raised the issue to AHS executives. She reported that the Assistant Risk Director had access to medical records. This was the officer who worked closely with the Claims and Risk Management attorneys when patient lawsuits were brought against AHS facilities. Patricia states that she worked closely with the FBI and documented the HIPPA violations that Rick Management’s access to medical records made possible.

AHS has produced no evidence that the governing agencies to which Patricia reported have denied the validity of her claims. AHS only claims that these agencies have dismissed her allegations because as of yet none of these agencies has instituted a public fact-finding investigation. As readers of this blog have pointed out, investigations of corporations of this size and political influence may take years. In fact, Patricia was told by the FBI that it was a tough case and to “hang in there kiddo” and that “you did a good thing.”

There is evidence that AHS officials are engaged in fraudulent practices and might go to great lengths to avoid potential lawsuits.

Adventist Health System and affiliated hospitals paid $8.9 million to settle allegations that they overbilled Medicare from 1992 to 1999.

In February, 2012, Adventist Health Service was fined $3.9 million to resolve false claims allegations related to Kyphoplasty.

Currently, “a whistle-blower lawsuit based on insider information from a former Florida HospitalOrlando billing employee and a staff physician alleges that seven Adventist Health hospitals in Central Florida have overbilled the federal government for tens of millions of dollars in false or padded medical claims.

“If found guilty, the health system would not only be responsible for repaying the excess money received, but also for paying civil penalties of $5,500 to $11,000 per false claim, and damages, he said.

“’When you’re looking at something that happened thousands of times, and that carries substantial civil monetary penalties for each claim and treble damages, the total exposure could exceed $100 million,’ Wilbanks said.” A trial is set for December, 2013.

In addition, AHS executives face losing millions in salaries and criminal penalties if Patricia’s testimony is proven to be factual. She has recently filed an appeal in The Florida Supreme Court, and may attempt to have her appeal heard by a Federal judge. Patricia holds to the fact that AHS and the Orange County Courts have violated The Florida State Whistleblower Law, and she will continue to litigate until this law is implemented on her behalf.

Costly litigation hurts hospital bond ratings and sales. Money made through bond sales enables AHS to expand its operations and increase the number of patients it can “serve” and profit from. Currently, no AHS bonds are being traded. It is assumed that this is the result of the recent federal lawsuit. The financial consequences to AHS have yet to be determined.

There are the salaries and bonuses of the 21 Officers, Directors, Trustees, Key Employees, and Highest Compensated Employees to be protected. The reported 2010 annual income of these people ranged from $2,925,356 to $317,331 with a median salary of $423,065. Four individuals made well over $1,000,000. Financial records are not yet available for 2011.

There is evidence that these salaries do not reflect past compensation highs. On December 31, 2009, Scott Maxwell of the Orlando Sentinel reported the following under the title of “The Good, The Bad and The Idiotic of 2009”:

“Biggest ‘nonprofit’ salary disclosed: Adventist Health CEO Don Jernigan’s $3.5 million. Yes, Florida Hospital’s parent company may be a ‘faith-based nonprofit,’ but that doesn’t mean it’s not profitable to work there. Tax records for this tax-exempt group showed that at least seven Adventist execs had annual packages worth more than $1 million. And Jernigan’s $3.5 million was more than the top administrators of the famed Mayo Clinic and Johns Hopkins Health System made … combined.”

Finally, there are the cautionary words of Mick Conners: CPA, Senior Vice President of Finance and Chief Financial Officer, Cape Cod Healthcare

“In spite of the real needs for [data] access, there will be a strong temptation to use this privilege for other purposes. Who are those with a stake in this process? There are a number of parties: health care providers, insurance companies, medical researchers, including medical schools, and, of course, patients. From the perspective of health care providers as internal stakeholders, the medical research community is a joint stakeholder. Insurers may require similar information, but they have interests beyond those of diagnosis and treatment. In many ways, the insurers and patients hold the position of customers, which is that of an external stakeholder. Patients are external stakeholders because they receive the treatment and the information is about them. Insurers stand in the place of the patient with respect to their incurring the brunt of financial liability. Although both are external stakeholders, they are not the same.

“For the internal stakeholders, there are corporate stakes. Corporations, even hospitals, medical consortiums, and research and teaching institutions must at least break even, if not make a profit, to maintain their very existence. To survive, quality of care must improve continuously while reducing costs (Marsh, 1996). Establishing that access to electronic medical records via the Web contributes to either or both of these goals, will make it a matter of self-preservation to acquire that capability. Thus having such a capability moves from being a utilitarian issue of being able to provide better service, to one of ethical egoism in the most basic sense — not simply self-interest but continued existence. With respect to the misuse of data, there would be obvious financial repercussions if such an occurrence were to be exposed, so the corporate players would certainly be operating in their own interests to try to avert any incident. This is true as well for the external stakeholders, at least for the insurers. By the same principle of ethical egoism, they would try to avoid misuse of data.

“However, here is where the definition of misuse comes into play. For what may constitute misuse in the view of the other external stakeholder mentioned (the patient), may constitute an act of self-preservation in the view of the insurer (or even possibly the research or teaching institution). For the patient, there may be issues of ethical egoism (not wanting certain information to be known because there could be negative repercussions), but also an ethical formalism could hold: that it is simply “not right” to disseminate a patient’s medical record without express permission, regardless of the possibility for the “greater good”.

“Because of the great financial pressures that could come to bear on these corporate stakeholders, internal and external, competing ethical principles could come into play. While they may initially have a well-founded reluctance to misuse data, simply because it is “not right”, the desire for self-preservation could dominate. The individual patient may have the least leverage, from an economic sense, and may well not even be aware of any abuses unless there is a direct negative effect. Even in such a case, the cost of litigation, both financial and emotional, can dissuade the individual from seeking recourse.

To help ensure respect for the rights of the individual patient, while providing for a reasonably “level playing field” for all corporate concerns, another external stakeholder could and will come into play. The government has long been in the business of regulating health care standards, and there is no indication that this arena would be any different. The U.S. Senate bill, S.1360, the Medical Records Confidentiality Act of 1995 (Bennett, 1995), and its corresponding House bill, HR 435 (Thomas), show that the government will weigh in on this issue.
http://webpages.cs.luc.edu/~laufer/ethics97/papers/MickConners.html

REFERENCES

CERNER
1. Cerner Hosting Outage Raises Doctor, Hospital Concerns
Cerner’s national network went down for a day, forcing physicians to resort to handwritten orders.
By Ken Terry
InformationWeek
July 26, 2012
http://www.informationweek.com/healthcare/electronic-medical-records/cerner-hosting-outage-raises-doctor-hosp/240004446

2. Patient Data Outage Exposes Risks Of Electronic Medical Records
‘Human error’ is blamed for a five-hour computer outage last week. It highlights the risks of a nationwide switch to electronic medical records.
August 03, 2012|By Chad Terhune, Los   Angeles Times
http://articles.latimes.com/2012/aug/03/business/la-fi-hospital-data-outage-20120803

3. Contra Costa’s $45 million computer health care system endangering lives, nurses say
By Matthias Gafni
Contra Costa Times
Posted: 08/14/2012 05:30:07 PM PDT
Updated: 08/14/2012 08:55:52 PM PDT

MARTINEZ — A new medical computer system used at Contra Costa correctional facilities recommended what could have been a fatal dose of a West County Jail inmate’s heart medication last week, an incident that a detention nurse characterized Tuesday as one of many recent close calls with the month-old program. However, the inmate’s nurse was familiar with his medical history, recognized the discrepancy and administered the correct amount of Digoxin…

It’s just one of a number of computer errors that medical staffers say have been endangering inmates, medical staff and sheriff’s deputies at the county’s five jail facilities since Contra Costa switched on July 1 to EPIC, a computer system that links the correctional facilities to the Contra Costa Regional Medical Center and other county health care operations…

“It’s dangerous. It’s very dangerous,” said an emotional Lee Ann Fagan in a phone interview. The registered nurse works at West County Detention Facility in Richmond. “It’s hard to work in an environment that’s so frustrating. “What nurses want is for the EPIC program to go away until it’s fixed,” she said…

Staff superusers have warned management of EPIC issues, and two training sessions in May and June were inadequate, Fagan said. “They were next to useless because the program wasn’t in place well enough to practice,” she said. “Everyone in the classes could see the gross loopholes in information.”

MANIPULATION OF RECORDS
1. Manipulation of 12,000 Medical Records Made Easy by HER
http://www.hcrenewal.blogspot.com/2012/07/manipulation-of-12000-medical-records.html

FRAUDULENT PRACTICES
1. Adventist Health System & Affiliated Hospitals Pay Nearly $9 Million For Overbilling Medicare
http://www.justice.gov/opa/pr/2000/December/686civ.htm

2. Fraudulent Claims Cost Adventist Health System, Florida, $3.9 Million
Four hospitals affiliated with Adventist Health System/Sunbelt Inc. in Florida will pay a total of $3.9 million to Resolve False Claims Act Allegations Related to Kyphoplasty
http://www.justice.gov/opa/pr/2012/February/12-civ-173.html

3. Whistleblower lawsuit alleges Florida Hospital filed millions in false claims
By Marni Jameson, Orlando Sentinel
August 8, 2012
http://articles.orlandosentinel.com/2012-08-08/health/os-whistleblower-lawsuit-florida-hospital-20120808_1_adventist-health-suit-claims-celebration-health

BOND RATINGS AND SALES
1. AHS bond trading ended on August 7, 2012
http://florida.municipalbonds.com/bonds/issue/684503V85

More: http://healthcarewhistleblower.blogspot.com/

Read our previous report: https://adventlife.wordpress.com/2012/06/13/part-one-the-whistleblower-and-the-healthcare-corporation/

Watch the Moleski’s U-Tube Video: