EXECUTIVE SUMMARY
A False Claims Act case is continuing against Bon Secours New York Health System. The plaintiff says she was fired for trying to address fraudulent billing.
- Physicians have come forward to say their signatures were forged.
- Bon Secours acknowledges destroying emails and other electronic data related to the case.
- A judge has ordered the health system to restore the data from backup tapes and provide it to the plaintiff.
A long-running False Claims Act lawsuit against Bon Secours New York Health System and its affiliates is moving forward in U.S. District Court for the Southern District of New York, after physicians came forward to attest that someone forged their signatures on documents required for billing. The case also may offer lessons for risk managers on preservation of email and other electronic data.
The case centers on allegations that a compliance officer was fired for trying to address healthcare fraud, and that the employer then destroyed email from her account and the accounts of a dozen more employees to hide wrongdoing.
United States of America et al. v. Bon Secours New York Health System, Inc., et al was filed by June Raffington, a masters-level nurse, who was then vice president of home care services for the Schervier Long Term Home Health Care Program in Bronx and Westchester, NY, where she was responsible for upholding regulatory compliance and managing staff to ensure that quality standards were met. During her tenure from 2008 to 2009, she learned of forgeries of healthcare documents by company employees that violated federal and state laws, says Jennifer Siegel, JD, senior litigation counsel with the law firm of Sanford Heisler Sharp in New York City, and one of the attorneys representing the plaintiff.
Whistleblower Terminated from Job
Headquartered in Marriottsville, MD, Bon Secours is a nonprofit Catholic health system that owns, manages, and/or joint ventures 18 acute-care hospitals, a psychiatric hospital, five nursing care facilities, five assisted living facilities, and 15 home care and hospice programs. Bon Secours owns and operates Bon Secours New York, which operated the Schervier Long Term Home Health Care Program until its closure in 2015. Bon Secours did not respond to a request for comment.
Raffington alleges she was fired in October 2009, only a year after taking the position, for her attempts to address the company’s fraudulent activities. She claims that she warned Bon Secours leaders about fraudulent billing practices for months. “Shortly before her termination, she clashed with senior leadership over the propriety of defendants’ preparations for a Medicaid audit,” according to her claims in court documents. “Defendants officially terminated Ms. Raffington, via letter, on October 9, 2009, four days after they sent her home to ‘rest’ and instructed her not to return to work.”
Doctors Cite Forgery
The case has been in litigation for eight years and in recent developments, three physicians and a former staff member at Bon Secours filed declarations testifying that the agency’s employees, including a former vice president, forged physicians’ signatures on medical orders for patients. These forged signatures allowed the companies to fraudulently bill Medicare or Medicaid for home healthcare services, according to the lawsuit. (See the story in this issue for more details on the allegations.)
The new declarations strengthen the plaintiff’s case, Siegel says, because they support allegations in the lawsuit from a Bon Secours employee that a senior vice president forged doctors’ signatures and ordered him to do the same.
“Doctors have now come forward filing statements attesting to the fact that their signatures were, in fact, forged. One doctor testified that her signature was forged for several years after moving from New York to Florida and was no longer seeing any patients in New York,” Siegel says. “This speaks to the seriousness of the allegations in this case and the need for health administrators to timely and thoroughly investigate all allegations of fraud.”
Spoliation Alleged
Following the physicians’ declarations, Siegel’s firm asked Judge Gabriel W. Gorenstein to sanction the Bon Secours defendants for destroying electronically stored information (ESI), including the email accounts of Raffington and 13 other individuals that may contain damning information about the companies’ violations of federal and state healthcare billing laws.
The defendants waited more than six months to inform the plaintiff that disaster recovery tapes exist and can be restored for the 14 missing email accounts, according to the brief filed by firm partner Ross Brooks, JD.
“Defendants destroyed Raffington’s email account and hard drive, as well as those of other key witnesses, including the vice president accused of ordering forgeries of physicians’ signatures, and the junior staff member, whom defendants admit they fired because of allegations that he carried out such forgeries,” Brooks says. “These actions satisfy the legal criteria for the court to sanction defendants for the destruction of evidence or failure to properly preserve evidence in anticipation of litigation. What they did is indefensible.”
The letter to Judge Gorenstein asserts the defendants acted with a culpable state of mind in deleting emails relevant to Raffington’s claims that should have been preserved so that they may be used in this action, committing “spoliation” of evidence in legal parlance.
The letter asks Judge Gorenstein to order the defendants to restore all requested email disaster recovery tapes at their expense and to reimburse Raffington for all fees and costs associated with investigating the spoliation and filing of the related motions. The plaintiff also requested a delay in the discovery deadline pending the defendants’ production of additional documents.
“Risk managers should take all allegations of fraud seriously and investigate them thoroughly, and in good faith, at the time they are brought forward,” Siegel says. “The lesson also is to preserve evidence when you reasonably expect litigation. We feel confident that the judge will rule that the defendants had an obligation to preserve all evidence in this case.”
SOURCES
- Ross Brooks, JD, Partner, Sanford Heisler Sharp, New York City. Telephone: (646) 402-5668. Email: [email protected].
- Jennifer Siegel, JD, Senior Litigation Counsel, Sanford Heisler Sharp, New York City. Telephone: (646) 402-5660. Email: [email protected].
A long-running False Claims Act lawsuit against Bon Secours New York Health System and its affiliates is moving forward in U.S. District Court for the Southern District of New York, after physicians came forward to attest that someone forged their signatures on documents required for billing.
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