State Auditor Doug Hoffer says a whistleblower’s claims that OneCare Vermont misled regulators are a “big deal” that should be investigated.
Hoffer said he’d “absolutely” look into the allegations made by Robert Hoffman, who formerly managed the data analytics team for OneCare Vermont — if Hoffman doesn’t move forward in court on his own.
Hoffman alleged in a False Claims Act case filed with the U.S. Attorney’s office that OneCare, a private company, claimed systems for analyzing patient information were reliable, even though they were aware that the data had serious deficiencies. Those claims led the state and feds to continue investing in the technology.
On Nov. 27, U.S. Attorney Christina Nolan formally declined to intervene in the case and a judge unsealed court documents.
OneCare Vermont, an accountable care organization, is working to change the way that doctors are paid, paying them per patient rather than for each medical service. That more holistic approach relies on using data to track how well patients are doing. If the information is unreliable, assertions about improvements in patient health and whether the three-year-old health care reform experiment is working may have no basis.
The auditor’s office is currently working on a more general audit of OneCare, which could ultimately include Hoffman’s complaints. The auditor generally doesn’t look into issues while they are in litigation, but may after court activity concludes.
“The integrity of the data is everything — everything,” Hoffer said. “Everyone’s crossing their fingers this looks like a good way to proceed with health care; that may be true.” But in order to have confidence in whether patients’ health is improving under the OneCare system, Hoffer said the integrity of the data is “absolutely essential.”
Hoffman worked as a data manager for OneCare from March to May 2018. He quickly found that the company’s data was “flawed — and virtually useless,” he wrote in a 13-page complaint filed with the U.S. Attorney’s office.
Two days after presenting several months worth of research to his supervisor showing the company had been “wasting millions of federal dollars,” Hoffman says he was fired. He declined to elaborate on the case as a whole and the U.S. Attorney’s decision.
Despite the U.S. Attorney’s refusal to move forward with the whistleblower complaint, the case isn’t necessarily closed.
Hoffman can pursue a lawsuit on his own with a private attorney. He could also file a lawsuit arguing that he was fired in retaliation. The feds could also decide to move forward in the future: in declining to intervene, Nolan did not dismiss Hoffman’s case, leaving open the option to file at a later date.
Hoffman and his Woodstock-based lawyer, Norm Watts, haven’t given up.
“If we decide to pursue the claims, we believe the evidence and financial data would persuade the judge and jury — and other decision-makers — that the claims warrant deep investigation in the form of discovery and, ultimately, judgment in our favor,” Watts said by email to VTDigger. He declined further comment. “[The case] is far too complex to duel in the media,” he said.
‘A combination of factors’
While the auditor has shown interest in reviewing Hoffman’s claims, other state officials expressed little interest in pursuing the issue. Several people, including health care regulators, declined to comment. Most felt the judicial system was the proper venue to vet the allegations.
“We take all allegations of this nature seriously,” said Rebecca Kelley, a spokesperson for Gov. Phil Scott.
She said she was confident that the feds and state had done a comprehensive investigation. “We have faith in their thoroughness — and in the work the accountable care organization is doing with Medicaid — and do not see a reason to launch a third investigation at this time,” she said.
Attorney General TJ Donovan said his office was satisfied with the work of his federal counterpart and decided that his own investigation would be unnecessary.
Cory Gustafson, commissioner of the Department of Vermont Health Access, said he would act on wrongdoing when he sees proof that it exists.
The decision by the U.S. Attorney to not file a case does not mean there is no validity to the complaints, according to Ed Baker, a Washington, D.C.-based attorney who previously worked for the Vermont Attorney General and helped to draft the state’s False Claims Act. The decision “doesn’t necessarily reflect on the merit of the case, though the defendants will often interpret it that way,” Baker said. The U.S. government refuses to intervene in roughly 80% of such cases, he said.
For Nolan, the decision to decline came after weighing key factors involved in a False Claims Act action — though she refused to discuss the particulars of the Hoffman case.
“A paramount consideration is we believe there’s an actual provable violation of law,” Nolan said. The fraud must be “not by accident, willfully committed” and it has to be “material,” meaning that the U.S. government wouldn’t have spent money on the matter if it had known about the fraud.
The federal attorney’s office also takes into consideration the amount that the U.S. government is alleged to have lost, how much it could recoup and the department’s own resources.
While Nolan wouldn’t discuss Hoffman’s case, she pointed to her previous track record.
Her department “punches way above its weight” in prosecuting false claims cases, she said.
In the past two years, the U.S. Attorney’s office won $57.25 million from Greenway Health and $155 million from the Massachusetts-based eClinical Works as part of false claims case about electronic health records. In 2018, Brattleboro Memorial Hospital also paid $1.65 million for knowingly lying to Medicare and Medicaid about its data.
The Green Mountain Care Board, the state’s health care regulatory body, is currently evaluating OneCare’s budget request for $1.43 billion and will vote on it this month. But that process likely won’t include review of Hoffman’s claims.
“The credibility of data is not something at least on its face is directly connected to the budget,” said Michael Barber, general counsel for the care board. Board members could ask OneCare about it as part of the review process, he added.
State silence
Green Mountain Care Board Chairman Kevin Mullin said he was unaware of the federal investigation until Nolan’s decision was announced. OneCare officials also didn’t know Hoffman had taken his case to the feds until asked about it by a reporter.
On Tuesday, the care board received a letter from OneCare CEO Vicki Loner offering the organization’s take on Nolan’s decision and disputing Hoffman’s allegations.
Hoffman was fired “for poor performance within the 90-day probationary period,” Loner wrote in the communique. Hoffman raised concerns about the quality of the data, which were investigated by OneCare, UVM Medical Center compliance team, and outside counsel.
They “determined there was no merit to his claims,” she said.
“We remain convinced that Mr. Hoffman’s allegations are baseless,” Loner concluded. “If he decides to move forward with his claims in the absence of Federal or State government support, we intend to defend the case and expect to prevail.”
Gustafson, of the Department of Vermont Health Access, said he was first contacted by the U.S. Attorney’s office last summer, first to supply data and then for interviews with staff. Gustafson’s department supplied the information, he said, though he didn’t know the nature of the case or the allegations, he said.
Gustafson said protecting state and taxpayer dollars was paramount.
“We have a responsibility to the Medicaid population to make sure they have safe and high quality access in the state of Vermont,” Gustafson said. “We also have a responsibility to the state of Vermont taxpayers that the money spent is spent how and where it should be. We take it seriously.”
If we had “any indication for impropriety”… “we would do something about it,” he said. “I also have to have faith in our judicial system.”
But Gustafson hasn’t been convinced to look into the issue himself. Neither the department’s program integrity unit or the Attorney General’s Medicaid Fraud and Residential Abuse Unit did its own investigation.
Sen. Ginny Lyons, D-Chittenden, said the Senate Health and Welfare Committee, which she chairs, would question OneCare about the issue as part of the company’s regular testimony in the Legislature, but didn’t go further in committing to look at Hoffman’s complaints specifically.
According to Baker, the D.C. attorney, the government should do its best to encourage whistleblower complaints and investigate them.
“It’s very hard for the government to identify and prosecute these cases without someone who’s on the inside,” he said.
If the U.S. Attorney had intervened and taken the case, Hoffman could have won 15% to 25% of the total amount the government recovered. That percentage increases to 30% if he pursues, and wins, the case with a private attorney, according to Baker. The rest of the money recovered would go back to the government.
Hoffman delivered a 50-slide presentation to OneCare Vermont outlining his complaints before he was fired. He said there were major differences between scores generated by OneCare versus those generated by Medicaid, Medicare and insurers. The data tools they used were either “useless” or shown to be incomplete, unused or discarded, Hoffman said.
Correction: The amount of money Hoffman would have been entitled to is between 15% to 25% of what the government recovers, not 15% to 20%.
