Wilson et al v. Alaska Native Tribal Health Consortium et al
Court Docket Sheet

District of Alaska

3:2016-cv-00195 (akd)

COMPLAINT against All Defendants (Filing fee $ 400 receipt number 097--2195597.), filed by All Plaintiffs.

1 Molly C. Brown Margaret Simonian 2 DILLON & FINDLEY, P.C. 1049 W. 5th Avenue, Suite 200 3 Anchorage, Alaska 99501 4 Phone: 277-5400 Fax: 277-9896 5 Email: molly@dillonfindley.com meg@dillonfindley.com 6 Attorneys for Relators 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF ALASKA AT ANCHORAGE TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 UNITED STATES OF AMERICA) LAW OFFICES ex rel. JOAN WILSON and) FALSE CLAIMS ACT 13 PAUL FRANKE, M.D.,) COMPLAINT AND DEMAND FOR 14) JURY TRIAL Plaintiffs,) 15 vs.) Filed Under Seal Pursuant to) 31 U.S.C. § 3730(b)(2) and 16 ALASKA NATIVE TRIBAL) Local Rule 5.4 HEALTH CONSORTIUM and) 17 ALASKA NATIVE TRIBAL HEALTH) Do not publish on Pacer or CONSORTIUM d/b/a ALASKA) any Publicly Accessible 18 NATIVE MEDICAL CENTER,) System 19) Defendants.) Case No. 3:16-cv-__________ 20 ______________________________) 21 Joan Wilson and Dr. Paul Franke ("Relators"), on behalf of 22 themselves and the United States of America ("United States"), 23 alleges and swears as follows: 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 1 of 24 4 1 1. Relators bring this action under the False Claims Act, 2 31 U.S.C. § 3729 et seq., to recover treble damages and civil 3 penalties as a result of false and fraudulent claims presented 4 to the United States and its governmental agencies, including, 5 but not limited to, the Department of Health and Social 6 Services. 7 8 2. Pursuant to 31 U.S.C. § 3730(b)(2), Relators' False 9 Claims Act Complaint was filed under seal. A copy of the False 10 Claims Act Complaint and a written statement were served on the TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 Attorney General of the United States. 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES Jurisdiction and Venue 13 3. This Complaint asserts claims under both federal and 14 state laws. This Court has jurisdiction over the subject matter 15 of this action pursuant to 28 U.S.C. §§ 1331 and 1345 and 16 17 31 U.S.C. §§ 3730 and 3732. 18 4. This Court may exercise personal jurisdiction over the 19 Defendants pursuant to 31 U.S.C. § 3732(a) because the 20 Defendants transact business in the District of Alaska. Venue 21 is proper in the District of Alaska under 31 U.S.C. § 3732 and 22 28 U.S.C. § 1391(b) and (c). 23 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 2 of 24 4 1 5. The Relators are the original sources of the 2 information outlined in this Complaint, pursuant to 31 U.S.C. 3 § 3730(e)(4)(A) and (B). 4 Parties 5 6. Until May 6, 2016, Relator Joan Wilson worked as the 6 Chief Ethics and Compliance Officer, Ethics and Compliance 7 8 Services, within Alaska Native Tribal Health Consortium's 9 ("ANTHC") office of the Chief Executive Officer. ANTHC fired 10 Ms. Wilson on May 6, 2016, in retaliation for complaining TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 internally about various violations of federal law. Ms. Wilson 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES has intimate knowledge of the day-to-day operations and ANTHC's 13 compliance with its own policies, and state and federal laws. 14 7. From January 2013 until June 7, 2016, ANTHC employed 15 Relator Dr. Paul Franke as the Chief Medical Officer at the 16 17 Alaska Native Medical Center ("ANMC"). Dr. Franke also worked 18 as the interim ANMC hospital administrator from April 2013 19 through October 2013. As such, Dr. Franke has intimate 20 knowledge of ANTHC and ANMC, including day-to-day operations of 21 ANMC and the billing practices. Dr. Franke's contract with 22 ANTHC was terminated and not renewed as a result of his 23 complaints about ANTHC's violations of federal law. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 3 of 24 4 1 8. ANTHC is an Alaska nonprofit corporation in good 2 standing in Alaska. ANTHC is also a Tribal Organization and 3 inter-Tribal consortium of federally recognized Alaska Tribes 4 and Tribal Organizations. ANTHC provides health care to 5 approximately 160,000 Alaska Natives, American Indians, Indian 6 Health Services ("IHS") beneficiaries and other individuals 7 8 eligible to receive care and services at the Alaska Native 9 Medical Center. ANTHC is also a Federal Qualified Health 10 Center. TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 9. ANTHC d/b/a ANMC is a hospital in the State of Alaska, 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES where medical services are performed and provided. 13 Background 14 10. The False Claims Act, 31 U.S.C. §§ 3729-33, provides 15 for the award of treble damages and civil penalties for 16 17 knowingly causing the submission of false or fraudulent claims 18 for payment to the United States Government. 31 U.S.C. 19 § 3729(a)(1). 20 11. On May 20, 2009, the Fraud Enforcement and Recovery 21 Act ("FERA") became law. See Pub. L. No. 111-21 Stat. 1617 22 (2009). Section four of FERA revised certain provisions of the 23 False Claims Act, including 31 U.S.C. § 3729, broadening that 24 25 statute and prohibiting the act of "knowingly and improperly 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 4 of 24 4 1 avoid[ing] . . . an obligation to pay" the United States 2 Government. 31 U.S.C. § 3729(a)(1)(G). The term "obligation" 3 includes "an established duty. . . arising from. . . the 4 retention of an overpayment." 31 U.S.C. § 3729(b)(3). 5 12. 42 C.F.R. § 433.304, defines an overpayment as "the 6 amount paid by a Medicaid agency to a provider which is in 7 8 excess of the amount that is allowable for services furnished 9. . . and which is to be refunded." 10 13. Medicare is a federally funded program, 42 U.S.C. TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 § 1395j et seq., which provides medical care based on age, 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES disability, or affliction with disease. Medicare Part B governs 13 reimbursement for medically necessary services furnished by 14 health care providers such as doctors. 42 U.S.C. §§ 1395j- 15 1395w-4. Medicare will not pay for treatments that are not 16 17 administered for the appropriate reason by the appropriate 18 treating provider. 19 14. Under Medicare, "no payment may be made under. . . 20 Part B. . . for any expenses incurred for items or services – 21 which. . . are not reasonable and necessary for the diagnosis 22 or treatment of illness or injury or to improve the functioning 23 of a malformed body member." 42 U.S.C. § 1395y(a)(1)(A). 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 5 of 24 4 1 15. Physicians who participate in the Medicare program are 2 reimbursed at a rate outlined in a physicians' fee schedule, in 3 accordance with federal statutes and regulations. 4 16. ANTHC employs doctors and other health care providers 5 that provide federally-funded health services, including 6 services that are billed and paid under Medicare. 7 8 17. ANTHC employs doctors and other health care providers 9 that provide federally-funded health services, including 10 services that are billed and paid under Medicaid. TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 18. Medicaid is an entitlement program created by the 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES United States Government, and is the primary public program for 13 financing basic health and long-term care services for low- 14 income Alaskans. Traditionally, in Alaska, Medicaid is funded 15 50% by the State of Alaska, and 50% by the United States 16 17 Government. However, by and through the Indian Health Care 18 Improvement Act, the Medicaid funds at issue in this case are 19 100% paid by the Federal Medical Assistance Percentage for 20 Medicaid Services. As such, the Medicaid funds at issue in this 21 case are federal funds only. Medicare will not pay for 22 treatments that are not administered for the appropriate reason 23 by the appropriate treating provider. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 6 of 24 4 1 19. ANTHC and ANMC receive significant revenue from 2 Medicare and Medicaid. 3 20. The Center for Medicare and Medicaid Service ("CMS"), 4 part of the Department of Health and Human Services, administers 5 the Medicare program. CMS is authorized by Congress, per 6 42 U.S.C. § 1395w-4(c)(5), to establish a uniform code for 7 8 identifying physicians' services for use in completing Medicare 9 and Medicaid claim forms. 10 21. CMS utilizes a Healthcare Common Procedure Code TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 System, which is divided into two principal systems referred to 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES as Level I and Level II. Level I is a numeric coding system 13 established by the American Medical Association called "Current 14 Procedural Terminology," or "CPT" that is a common language for 15 coding physician services and procedures for the purpose of 16 17 seeking Government funds through reimbursement under Medicare 18 and Medicaid. 19 22. To participate in Medicare and Medicaid, providers, 20 and entities like ANTHC and ANMC, must assure that their 21 services are provided to Medicare and Medicaid patients 22 economically and only when and to the extent they are medically 23 necessary. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 7 of 24 4 1 23. This includes the general principle that medical 2 advice and treatment must be motivated by the patient's best 3 interest, not an entity's financial interest. 4 24. In fact, in order to bill the Government through 5 Medicare, a health care provider must sign the CMS 1500 form, 6 which includes a certification that the services were medically 7 8 indicated and necessary to the health of the patient, and were 9 personally furnished by the physician or the physician's 10 employee, under the physician's direction. A similar TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 certification is required on a Medicaid form. 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES 25. ANTHC employs physicians who work at ANMC. ANTHC 13 provides the billing for the services performed by its employees 14 and contractors. 15 26. During the Relators' tenure at ANTHC, they both 16 17 observed the day-to-day operations of ANMC, as well as the 18 business practices of ANTHC. The Relators also personally 19 interacted with ANTHC leadership and decision-makers, including 20 the ANTHC general counsel, Nacole Heslep, ANTHC Chief Executive 21 Officer Roald Helgesen, and ANTHC Board of Directors ("Board"), 22 including Andy Tueber, president of ANTHC's board. The 23 allegations herein are based on Relators' personal observations. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 8 of 24 4 1 Facts Related to Improper Pharmacy Billing 2 27. ANTHC is in violation of the Alaska Tribal Billing 3 Manual for Medicaid Services, which prevents ANMC from billing 4 for pharmaceuticals dispensed incident to an outpatient visit. 5 Specifically, ANMC bills through its Pharmacy Medicaid 6 Enrollment Number for infusion drugs dispensed during an 7 8 outpatient visit. In a form of double billing, ANTHC also 9 includes the expense of these drugs in the cost reports used to 10 calculate the IHS encounter rate for outpatient visits. TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 28. In addition to billing for drugs included in an 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES outpatient visit and calculating an encounter rate that also 13 includes those costs, ANTHC and ANMC bills Medicare and Medicaid 14 for oncology visits where care is provided solely by registered 15 nurses, an ineligible provider under both programs. As Chief 16 17 Ethics and Compliance Officer, Ms. Wilson was personally aware 18 of these practices and repeatedly attempted to reverse these 19 practices. ANTHC and ANMC refused to alter their practices. 20 29. The above-described practices by ANTHC and ANMC have 21 been ongoing for at least five years. As a result, ANTHC and 22 ANMC have received overpayments that total at least $50 million. 23 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 9 of 24 4 1 Facts Related to Improper and Unathenticated Orders 2 30. During Dr Franke's first months at ANTHC, while 3 working as the ANMC Director, Dr. Franke looked into ANMC's 4 revenue cycle to verify revenues from federal and state payers. 5 31. Dr. Franke's efforts included reviewing documents that 6 support the services provided. In what he considers a "minor 7 8 review," over a short period of time, Dr. Franke identified 9 $7 million in services that ANTHC inappropriately billed and on 10 which funds were collected, as the services provided were not TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 appropriately authenticated by providers. This is because ANTHC 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES billed for services in advance of ensuring appropriate coding 13 for those services. Essentially, ANTHC billing personnel billed 14 for unsigned orders. ANTHC billed for this type of 15 unauthenticated order from 2010-2013 in an amount that totaled 16 17 at least $90 to $100 million. 18 32. In addition to orders entered by non-privileged 19 residents, Ms. Wilson also discovered that admission orders for 20 newborns were entered by nurses, but were never approved by 21 physicians or nurse midwives with admitting privileges. This 22 practice began at Cerner Go-Live and ended on August 28, 2014. 23 Ms. Wilson worked to get ANTHC and ANMC to return the 24 25 overpayments, but ANTHC and ANMC, including Mr. Helgesen and 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 10 of 24 4 1 Ms. Heslep, took no action to return funds received as a result 2 of the improper billing practices. 3 33. These practices are still occurring today. For 4 example, EKG services are billed without a signed order by a 5 provider. As a result, ANTHC and ANMC have billed for and 6 received payment for services that have been approved by medical 7 8 assistants and other non-qualified personnel, all in violation 9 of federal laws and regulations. 10 Facts Related to Double Billing TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 34. ANMC provides reference laboratory and radiology 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES services within the Alaska Tribal Health System. ANTHC and ANMC 13 have failed to develop an appropriate financial protocol for 14 billing. 15 35. Because there is not an appropriate billing protocol, 16 17 ANTHC and ANMC have billed for reference laboratory services 18 absent orders or appropriated signed requisitions in the place 19 of orders. Moreover, ANTHC and ANMC and the referring tribal 20 facility have billed Medicare and Medicaid for the same ordered 21 services. This practice also takes place in radiology where 22 ANTHC and ANMC and the referring tribal health facility are 23 billing for the same reads and services. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 11 of 24 4 1 36. ANTHC and ANMC also double bill due to an electronic 2 health record system problem, where ANTHC and ANMC generate a 3 new encounter number when a patient moves from one level of care 4 to the next. For example, when a patient in the Intensive Care 5 Unit at ANMC is transferred to a lower level of care, the 6 patient's orders are all reentered and rebilled. In this 7 8 instance, orders are reinitiated and, if not properly included 9 in the encounter rate, billed. ANTHC is well-aware of this 10 problem because physicians at ANMC and ANTHC consistently TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 complain about it. This practice is evidenced by the duplicate 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES and initial set up for ventilator charges for the same patient 13 on the same day or the provision of charges on days were the 14 service was not provided. 15 Facts Related to the Improper Use of Catastrophic 16 Health Emergency Fund 17 37. Each year, IHS budgets approximately $50 million for 18 uncovered medical services under a program called the 19 Catastrophic Health Emergency Fund ("CHEF"). 20 21 38. In order to qualify for reimbursement under the CHEF, 22 the medical service at issue has to satisfy applicable 23 regulations, which include a certification of medical necessity 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 12 of 24 4 1 and a recognition that the service cannot be provided within the 2 tribal facility. 3 39. During Dr. Franke's tenure at ANMC, he noticed that 4 ANMC referred services out that were not necessary for the CHEF. 5 He discussed these issues with Mr. Helgesen, and questioned 6 Mr. Helgesen's decision to direct orthopedic surgeons at ANMC to 7 8 refer out elective procedures that were not emergencies if the 9 surgery could not be provided at ANMC within a relatively short 10 ten-day period. ANMC's orthopedic surgeons also objected to TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 this practice. 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES 40. As such, ANMC billed and received payments from CHEF 13 for services that did not qualify, thereby depleting the 14 national pool when medical care could have been adequately 15 provided at ANMC. Notably, once CHEF is depleted on a national 16 17 basis, no other funds are available until the next fiscal year. 18 41. Also, the referred out services described here were 19 reimbursed by CHEF at a higher rate than ANMC would be permitted 20 to bill for these services. These surgeries include, for 21 example, an elective, non-emergency knee replacement. If a 22 patient was required to wait a reasonable period of time, such 23 as six weeks for a surgery date for an elective procedure, that 24 25 surgery would be referred out. This practice evidences ANTHC's 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 13 of 24 4 1 disregard for governing federal standards, and its willingness 2 to abuse federal programs for its own financial gain. The 3 Relators estimate that ANTHC receive half of the national CHEF 4 funds every year, much more than its proportionate share. 5 Facts Related to Inappropriately Received Meaningful Use Funds 6 42. An external consultant's analysis of the security of 7 8 ANTHC's electronic medical health record system and supporting 9 technology established that ANTHC must on a timely basis 10 undertake 182 action items to meet the Meaningful Use TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 requirements for an effective, integrated medical record for 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES which ANTHC has already received Medicare and Medicaid incentive 13 payments on behalf of the hospital and enrolled providers. ANTHC 14 has not taken the necessary action to satisfy the Meaningful Use 15 requirements. 16 17 43. Meaningful Use requires that known deficiencies must be 18 addressed within the attestation period subject to the receipt of 19 funds. Ms. Wilson tried to make funding for correction of these 20 deficiencies a priority. Even if funding was received, ANTHC 21 security priorities were demoted in importance for expansion of 22 the electronic health record to other tribal health systems, 23 thereby creating vulnerability for the electronic health records 24 25 of over 160,000 Alaska Native and American Indian beneficiaries. 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 14 of 24 4 1 Improperly received Meaningful Use funds in an amount that 2 exceeds $20 million. 3 Facts Related to Generally Improper Billing Practices 4 44. Mr. Helgesen has admitted to Ms. Wilson that he agrees 5 with her assessment that while ANTHC has been committed to the 6 expansion of services, it has failed to make the necessary 7 8 operational changes and capital support to support the 9 expansion. This includes not only the failure to develop 10 appropriate procedures and technical fixes to stop inappropriate TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 billing, but the failure to foresee and timely address the 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES numerous billing issues its expansion has caused not only for 13 ANTHC but for other tribal providers. For example, just as ANMC 14 inappropriately bills for pharmaceuticals dispensed incident to 15 an outpatient visit, it has caused similar billing problems 16 17 related to tribal facilities connected to its shared electronic 18 health record system. Ms. Wilson attempted to stop these 19 inappropriate billing practices, and urged ANTHC to return, 20 report and repay overpayments that wrongfully ANTHC has 21 retained. ANTHC has retained those funds. 22 45. For example, prior to being terminated, Ms. Wilson 23 investigated issues related to the use of the automatic 24 25 dispensing of pharmaceutical drugs through a program called 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 15 of 24 4 1 Pyxsis MedStation. The program is not working properly in 2 connection with ANMC's electronic health records system. For 3 example, professionals often enter drug dispensing orders for 4 three patients. Because Pyxsis and ANMC's EHR system are not 5 compatible, the one patient is charged for all three drugs, while 6 other patients are not charged at all. The system is also 7 8 susceptible to fraud. The following issues have been identified 9 and documented by ANTHC: (1) late charges are being posted to 10 patient's accounts when the documentation in the patient's health TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 records do not support the charges; (2) "dummy patients" are 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES created to pull stock quickly; and (3) machines are not locked 13 and alarms are disarmed, which allows staff to pull stock and 14 supplies without recording orders. 15 46. Relators know that ANTHC and ANMC are inappropriately 16 17 billing for services provided off campus under eligible billing 18 numbers. This includes billing for services provided at the 19 ANTHC new outpatient surgery center, which is well outside the 20 bounds of the ANMC campus. Ms. Wilson learned that ANTHC was 21 likely (1) billing for physical therapy services that were not 22 provided during inpatient care for critical care patients; 23 (2) upcoding the facility fee provided for Emergency Room 24 25 services by identifying a level of care that was not provided; 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 16 of 24 4 1 (3) impermissibly billing anesthesia charges for in-room/out- 2 room times rather than the start time and stop time of 3 surgeries; (4) likely diverting funds that should be available 4 for tribal health care by permitting, in violation of ANTHC 5 policy and Internal Revenue Service regulations, by allowing 6 first class travel and double and triple booking of flights for 7 8 ANTHC board members and others personally selected for these 9 fringe benefits; and (5) not returning overpayments for medical 10 services ordered by either non-privileged or improperly TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 supervised physician assistants. 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES Facts Related to Employment Claims – Ms Wilson. 13 47. ANTHC terminated Ms. Wilson on May 6, 2016. Ms. Wilson 14 was wrongfully terminated because she voiced her concerns, 15 including some outlined here, regarding ANTHC's failure to abide 16 17 by federal and state regulations. 18 48. Ms. Wilson was outspoken about ANTHC's failure to 19 correct its unlawful billing practices and its unwillingness to 20 correct deficiencies. Ms. Wilson was ultimately terminated after 21 notifying Ms. Heslep and Mr. Helgesen that she objected to being 22 wrongfully excluded from a meeting called to create new Medicaid 23 billing opportunities and to ANTHC's purported attempt by ANTHC 24 25 purportedly claiming the attorney-client privilege precluded 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 17 of 24 4 1 disclosure of a study that established serious concerns over 2 ANTHC's ability to protect health information maintained by the 3 organization and its tribal partners. 4 49. Ms. Wilson notified Mr. Helgesen and Ms. Heslep 5 regarding her concerns on May 2, 2016 and May 3, 2016. ANTHC 6 terminated Ms. Wilson three days later. ANTHC, through its 7 8 leadership, also precluded Ms. Wilson from meeting with the 9 Ethics and Compliance Committee of the Board, to which Ms. Wilson 10 was to have dotted line authority. Ms. Wilson's attempts for TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 reinstatement at the full board level were further blocked by 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES Ms. Heslep (despite direct conflict), and other members of 13 ANTHC's Board of Directors who received additional board 14 assignments and compensation by staying in Mr. Teuber's good 15 graces. 16 17 50. Ms. Wilson is the third ethics and compliance officer 18 to be terminated or asked to resign since ANTHC's incorporation 19 in 1997. By comparison, the same General Counsel has been in 20 place for twelve years. 21 Facts Related to Employment Claims – Dr. Franke. 22 51. Dr. Franke received notice in early June that his 23 ANTHC contract would not be extended. This decision was made by 24 25 Mr. Helgesen. Dr. Franke applied to work at ANTHC through a 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 18 of 24 4 1 locum tenens contract, where Dr. Franke could work at ANMC on a 2 short term or part-time basis. ANMC is significantly 3 understaffed, and Dr. Franke is over qualified to work at ANMC. 4 Despite this, Mr. Helgesen precluded Dr. Franke from working at 5 ANMC. 6 Count I - Violation of 31 U.S.C. § 3729(a)(1)(G) 7 Reverse False Claims Act 8 (ANTHC and ANMC) 9 Relators incorporate paragraphs 1 through 51 as if fully 10 set forth herein and further alleges as follows: TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 52. ANTHC and ANMC violated the False Claims Act by 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES knowingly and improperly retaining Medicare and Medicaid 13 overpayments in violation of 31 U.S.C. § 3729(a)(1)(G). 14 53. By virtue of the above-referenced violations of the 15 False Claims Act, the United States has suffered damages and is 16 17 therefore entitled to treble damages under federal law, to be 18 determined at trial, plus civil penalties for each violation. 19 Count II - False Claims Act Violation Express Certification 20 (ANTHC and ANMC) 21 Relators incorporate paragraphs 1 through 53 as if fully 22 set forth herein and further alleges as follows: 23 54. ANTHC and ANMC knowingly caused to be presented false 24 25 or fraudulent claims for payment or approval to the United 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 19 of 24 4 1 States, for treatment and services that were not and are not 2 medically necessary, and are therefore, not covered and 3 reimbursable. 4 55. By virtue of the violations of the False Claims Act, 5 the United States has suffered damages and is therefore entitled 6 to treble damages under federal law, to be determined at trial, 7 8 plus civil penalties for each violation. 9 Count III - False Claims Act Violation Implied Certification 10 (ANTHC and ANMC) TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 Relators incorporate paragraphs 1 through 55 as if fully 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES set forth herein and further alleges as follows: 13 56. ANTHC and ANMC knowingly caused to be presented false 14 or fraudulent claims for payment or approval to the United 15 States for treatment and services that were not and are not 16 17 medically necessary, and are therefore, not covered and 18 reimbursable. 19 57. When ANTHC and ANMC submitted claims for payment or 20 approval to the United States they impliedly certified 21 compliance with material statutory, regulatory, and contractual 22 obligations, knowing that the claims for treatment and services 23 were not and are not medically necessary, and are therefore, not 24 25 covered and reimbursable. 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 20 of 24 4 1 58. By virtue of the violations of the False Claims Act, 2 the United States has suffered damages and is therefore entitled 3 to treble damages under federal law, to be determined at trial, 4 plus civil penalties for each violation. 5 Count IV – Retaliatory Discharge in 6 Violation of False Claims Act (ANTHC) 7 8 Relators incorporate paragraphs 1 through 58 as if fully 9 set forth herein and further alleges as follows: 10 59. By making good faith reports of fraudulent acts and TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 compliance issues, Relators engaged in activity protected by the 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES False Claims Act. 13 60. ANTHC and ANMC were aware of Relators' complaints and 14 had been for a significant period of time. 15 61. Ms. Wilson was wrongfully terminated in retaliation 16 17 for engaging in that protected activity. 18 62. ANTHC failed to extend or continue Dr. Franke's 19 contract for services in retaliation for engaging in protected 20 activity. 21 63. ANTHC's wrongful retaliation violated the False Claims 22 Act and caused Relators to suffer damages in excess of 23 $100,000.00, the precise amount to be determined at trial. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 21 of 24 4 1 64. Relators are entitled to all relief afforded to them 2 under the False Claims Act. 3 Count V – Breach of Covenant of Good Faith and Fair Dealing 4 (ANTHC) 5 Relators incorporate paragraphs 1 through 64 as if fully 6 set forth herein and further alleges as follows: 7 65. In Alaska, all employment relationships contain an 8 implied covenant of good faith and fair dealing. 9 66. ANTHC breached the covenant of good faith and fair 10 TEL. (907) 277-5400 · FAX (907) 277-9896 dealing when it terminated Relators without cause and in DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 retaliation after they reported fraud and compliance issues. LAW OFFICES 13 67. As a result of ANTHC's breach of the covenants of good 14 faith and fair dealing, Relators suffered damages in excess of 15 $100,000.00, the precise amount to be determined at trial. 16 Count VI – Intentional Interference with Contractual Relations 17 (ANTHC) 18 Relators incorporate paragraphs 1 through 67 as if fully 19 set forth herein and further alleges as follows: 20 68. Dr. Franke had a potential business relationship with 21 ANMC. 22 69. ANTHC, through Mr. Helgesen, knew about the business 23 relationship. 24 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 22 of 24 4 1 70. ANTHC, through Mr. Helgesen, intended to interfere in 2 the business relationship, keeping Dr. Franke from obtaining a 3 locums tenens contract at ANMC. 4 71. The acts of ANTHC, through Mr. Helgesen, caused 5 Dr. Franke to suffer damages at an amount that will be proved at 6 trial. 7 8 72. The acts of ANTHC, through Mr. Helgesen, were not 9 privileged or justified, and were based on Dr. Franke's 10 insistence that ANTHC conform its business practices to Alaska TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 and federal law. 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES Jury Demand 13 Relators demand a jury trial. 14 Prayer for Relief 15 WHEREFORE, Relators demand and pray that judgment be 16 17 entered in favor of the United States against ANTHC and ANMC as 18 follows: 19 1. That the United States be awarded damages in the 20 amount of three times the damages sustained by the United States 21 because of the false and fraudulent claims alleged in this 22 Complaint; 23 2. That civil penalties under the False Claims Act be 24 25 imposed for each and every false and fraudulent claim that 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 23 of 24 4 1 Defendants presented and caused to be presented to the United 2 States; 3 3. An award of all available damages, including actual, 4 consequential, statutory, special and punitive damages; 5 4. That pre and post-judgment interest be awarded, along 6 with reasonable attorney's fees, costs and expenses incurred by 7 8 Relators in bringing this case; 9 5. That Relators be awarded the maximum amount allowed 10 under the False Claims Act; and TEL. (907) 277-5400 · FAX (907) 277-9896 DILLON & FINDLEY A PROFESSIONAL CORPORATION 11 6. That this Court award such other relief as it deems 1049 W. 5th Avenue, Suite 200 Anchorage, Alaska 99501 12 LAW OFFICES proper. 13 DATED this 26th day of August 2016, at Anchorage, Alaska. 14 DILLON & FINDLEY, P.C. 15 Attorneys for Relators 16 By: s/Molly C. Brown 17 Molly C. Brown, ABA No. 0506057 1049 W. 5th Avenue, Suite 200 18 Anchorage, Alaska 99501 Phone: 277-5400 19 Fax: 277-9896 Email: molly@dillonfindley.com 20 By: s/Margaret Simonian 21 Margaret Simonian, ABA No. 9901001 1049 W. 5th Avenue, Suite 200 22 Anchorage, Alaska 99501 Phone: 277-5400 23 Fax: 277-9896 24 Email: meg@dillonfindley.com 25 26 FALSE CLAIMS ACT COMPLAINT AND DEMAND FOR JURY TRIAL Joan Wilson & Dr. Paul Franke v. Alaska Native Tribal Health Consortium, et al. Case No. 3:16-cv-________________ Page 24 of 24 4

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Description
1
08/29/2016
COMPLAINT against All Defendants (Filing fee $ 400 receipt number 097--2195597.), filed by All Plaintiffs.
2
08/29/2016
Civil Cover Sheet.
12
12/06/2017
NOTICE of Election to Decline Intervention by United States of America
1
Proposed Order
1 Attachment
14
04/16/2018
SEALED ORDER by Judge Timothy M. Burgess. The complaint be unsealed and served upon the defendant by the relator. See Order for additional instruction regarding sealed document. Signed by Judge Timothy M. Burgess on 4/16/18.
15
06/21/2018
AMENDED COMPLAINT and Demand for Jury Trial against Alaska Native Tribal Health Consortium, filed by Joan Wilson, Paul Franke.
16
06/21/2018
AFFIDAVIT of Service for False Claims Act Complaint & Demand for Jury Trial and Civil Cover Sheet served on Loretta Lynch, Atty General for the U.S., U.S. Dept. of Justice on Oct. 3, 2016, filed by Paul Franke, Joan Wilson.
17
06/21/2018
Unissued summons re Defendant Alaska Native Tribal Health Consortium.
06/21/2018
Summons Issued as to Alaska Native Tribal Health Consortium. (Text entry; no document attached.)
18
06/28/2018
AFFIDAVIT of Service for First Amended Complaint and Demand for Jury Trial and Summons served on Alaska Native Tribal Health Consortium on June 27, 2018, filed by Paul Franke, Joan Wilson.
1
Exhibit A
1 Attachment
19
07/02/2018
Extension of Time to File Answer
07/09/2018
Order on Motion for Extension of Time to Answer (Text entry; no document attached.)
21
08/15/2018
Amend/Correct
22
08/15/2018
Extension of Time to File Answer
08/21/2018
Order (Text entry; no document attached.)
24
08/28/2018
Response in Opposition to Motion
08/31/2018
Order (Text entry; no document attached.)
08/31/2018
~Util - Terminate Motions (Text entry; no document attached.)
26
09/04/2018
Extension of Time to File Response/Reply
28
09/11/2018
Reply to Response to Motion
29
09/14/2018
Miscellaneous Relief
30
09/18/2018
Response in Opposition to Motion
31
10/10/2018
Order on Motion to Amend/Correct
32
10/12/2018
Disqualify Counsel
33
10/12/2018
Memorandum
34
10/12/2018
Affidavit
35
10/12/2018
Affidavit
36
10/12/2018
Affidavit
37
10/12/2018
Affidavit
38
10/12/2018
File Excess Pages
39
10/16/2018
Amend/Correct
40
10/18/2018
Miscellaneous Relief
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