One of America’s largest HIV and AIDS medical care providers was financially incentivizing employees to seek out patients who tested positive for HIV, which led to a $20 million lawsuit last year in June 2014. The case was filed in South Florida federal court by former employees from the AIDS Healthcare Foundation (AHF), a nonprofit provider administering HIV prevention services, testing, and health care, and recently amended with further case details.
The three whistleblowers — Jack Carrel, Mauricio Ferrer, and Shawn Loftis — were fired after they claimed the foundation was paying employees $100 to refer patients who tested positive to their own clinic, pharmacy, and insurance service centers. They said the foundation was using patient referrals as a way to boost funding received by Medicare and Medicaid federal health programs. Both the federal government and the state of Florida formally declined to intervene in any legal action on behalf of the three former employees, which “speaks volumes about the merits of the case.” AHF President Michael Weinstein said in a statement.
“Small incentives for linking and retaining people in care are mainstays of public health interventions — including by many CDC projects,” he added. “We look forward to the opportunity to rebut these baseless charges in court.”
More than 1.2 million people are living with HIV in the United States, according to the Centers for Disease Control and Prevention, and the number of new infections has remained relatively stable in the last 20 years. Weinstein directed his staff to implement the patient financial incentive program nationwide in order to link HIV-positive people to the services they needed. The Los Angeles-based company treats more than 400,000 patients and is planning a worldwide testing initiative designed to treat approximately 25 million people who didn’t know they were infected, according to their site.
"Not only has AIDS Healthcare Foundation done nothing wrong,” Weinstein said, “our pro-active approach to finding and linking HIV-positive individuals to lifesaving care and treatment is critical to stopping HIV in this country.”
The former employees’ attorneys said they were protected under the Federal False Claim Act (FCA), because according to the National Whistleblowers Center it “includes protection for ‘whistleblowers’ which allows someone with actual knowledge of alleged violations to even file a lawsuit on behalf of the federal government. A whistleblower whose case is accepted and prosecuted could qualify for a percentage of any recovery to the federal government.”
If AHF was found guilty, a portion of the settlement with the federal government would go to the three whistleblowers. For each violation, considered in this case as positive test referrals, there could be a penalty of up to $11,000. There were 1,181 referrals Medicare or Medicaid referrals made by the foundation since 2010. On Feb. 9, 2015, “Notice to Decline Intervention by United States of America” was filed, and following day, “Notice to Decline Intervention by State of Florida” was also filed.
If employees were found to be protected under the FCA for whistleblowers, they may have a viable case because they were promptly fired by the foundation, which violates the False Claim Act. However, the likelihood of the prosecution finding the foundation guilty of Medicare and Medicaid fraud is unlikely, according to the government’s “declined intervention.”