Tenet Healthcare Corp. (NYSE: THC) said Monday that it believes it has reached an agreement in principle with the government to resolve a long-running criminal investigation and civil litigation about a kick-back scandal involving an Atlanta medical clinic and three of the company's Atlanta-area hospitals.
Dallas-based Tenet said it has agreed to pay $514 million, has agreed to the appointment by the U.S. Department of Justice of a corporate monitor for a period of three years, and has agreed for two wholly owned subsidiaries that previously operated Atlanta Medical Center and North Fulton Hospital to each plead guilty to a single-count indictment.
In particular, regarding kickbacks,
The company's two subsidiaries will plead guilty to a single count of conspiracy to violate the federal anti-kickback statute and defraud the United States, Tenet reported.
Four hospitals owned by Tenet -- Atlanta Medical Center, North Fulton Hospital, Spalding Regional Medical Center and Hilton Head Hospital -- allegedly paid kickbacks to a Georgia company called Clinica de la Mama for Medicaid patient referrals. Clinica de la Mama operated medical clinics that provided prenatal care to predominantly undocumented Hispanic women in metro Atlanta and Hilton Head, S.C.
The contracts were in effect for various periods from 2000 to 2013 between the four hospitals.
Like many such settlements, this one evoked almost no media coverage, and what coverage there was appeared in the business, not health care news. For example, the brief Wall Street Journal story focused almost entirely on the financial implications for Tenet of the settlement. Thus the anechoic effect continues.
Unpacking the Settlement
Bad Patient Care
First of all, the settlement included guilty pleas to charges of "conspiracy to violate the federal anti-kickback strategy." The allegations were that the kickbacks were paid "for Medicaid patient referrals." That means that Tenet was alleged to have paid the operator of medical clinics to send patients to Tenet hospitals. This goes beyond financial crime.
Physicians swear oathes to put the care of individual patients ahead of all other concerns. The new American Medical Association Principles of Medical Ethics states:
A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
That means that decisions by physicians to refer patients to specific hospitals, specialists, etc should be based on what referrals would be best for individual patients, and certainly not on payments to the physicians by such hospitals, specialists, etc. Kickbacks like those described above could send patients to hospitals that were not the most suitable for the patients' needs, thus potentially harming patients. So this case raises big concerns about bad patient care, not merely unethical money transfers.
Yet in the minimal media coverage of the Tenet settlement, I see nothing about medical ethics, potential harms to patients, etc.
As is typical of such settlements, no individual who might have authorized, directed or implemented the kickbacks suffered any consequences. While top managers of Tenet might have gotten even bigger bonuses because of the additional revenues supplied by the sorts of behavior discussed above, they would suffer no financial penalties as a result of this settlement. In fact, in 2015, the current Tenet CEO, Mr. Trevor Fetter, who was an officer of the company in 2013, the last year kickbacks covered by the settlement ocurred, received total compensation of $15,354,283 according to the company's 2016 proxy statement.
Although in this settlement there were at least some corporate guilty pleas, allowing this case to be considered criminal, these pleas were not made by Tenet. Instead they were by its subisidiaries. This would allow Tenet itself to avoid any non-financial penalties, such as being barred from participating in US government programs. While the monetary size of the settlement appeared to be large, it was trivial compared to Tenet's annual earnings, which last year were over $18.6 billion according to Google Finance.
This settlement, like many others, included a corporate integrity agreement. Such agreements, and conceptually similar deferred prosecution agreements, were heavily promoted, in part through the use of a logical fallacy, by then US Attorney, now Governor of New Jersey Chris Christie. However, there seems to be little evidence that they deter future bad behavior (look here).
Tenet actually has a long, dark record of misbehavior. In 2012, we published our last post on Tenet. It was about a $42.7 million dollar settlement the company made then of charges it overbilled the Medicare program from 2005-07. As we wrote then:
While this story appeared briefly and without context in a few business news outlet, it really is part of a much bigger picture.
National Medical Enterprises
Published in 2006, Maggie Mahar's Money Driven Medicine was one of the important early works on health care dysfunction (see post here, the web-site of the documentary film based on it here). One of the striking cases it discussed was that of Nartional Medical Enterprises. NME was charged not only with run of the mill offenses like over-billing, but more exotic ones like kidnapping patients. NME eventually settled with federal authorities in 1994 for $379 million, and pleaded guilty to a variety of charges. The results were similar to many more recent cases. No one went to jail, and the CEO walked away with a golden parachute. Despite the seriousness of the offenses, NME did not go out of business. It simply changed its name - to Tenet Healthcare.
Legal Problems in the 21st Century
The "new" Tenet continued to have legal issues. These included a $395 million settlement of the Redding Medical Center unnecessary heart surgery scandal in 2004 (look here), and a $21 million settlement of US government charges of kickbacks (look here), a $7 million settlement with the government of Florida of charges of fraudulent billing (look here), and a $900 million settlement of federal over-billing complaints (look here, and see our post here), all in 2006. There was an apparent lull, and then in 2011 the company settled a class action suit brought after the deaths of 34 patients in a Tenet facility in New Orleans after Hurricane Katrina (see Bloomberg story here.)
Yet this more than 20 year history of repeated allegations, settlements, and crime did not apparently affect the latest settlement.
Nearly every big US health care corporation now seems to now have a long history of bad behavior, sometimes criminal behavior, that has not stopped the revenues from flowing, and the top managers from becoming millionaires, or billionaires. Is it any wonder that a few years ago, nearly a majority of US respondents to a Transparency International poll declared our health care system to tbe corrupt (look here)?
Their dark musings may be partially due to their awareness that health care corruption is a taboo topic. As we wrote about it in 2016 (look here)...
Essentially, there is so much money to be made through pharmaceutical (and by implication, other health care corruption) that the corrupt have the money, power, and resources to protect their wealth accumulation by keeping it obscure. In the Transparency International 2016 Report on health care corruption in the pharmaceutical industry,
However, strong control over key processes combined with huge resources and big profits to be made make the pharmaceutical industry particularly vulnerable to corruption. Pharmaceutical companies have the opportunity to use their influence and resources to exploit weak governance structures and divert policy and institutions away from public health objectives and towards their own profit maximising interests.
Keep in mind that the money made from corruption does not just go to innocent peoples' retirement funds that are invested in pharmaceutical stocks. It predominantly goes to top corporate executives and managers, and their cronies who preside over the corrupt practices.
I might as well repeat myself once again. As I wrote in 2015,
If we are not willing to even talk about health care corruption, how will we ever challenge it?
So to repeat an ending to one of my previous posts on health care corruption.... if we really want to reform health care, in the little time we may have before our health care bubble bursts, we will need to take strong action against health care corruption. Such action will really disturb the insiders within large health care organizations who have gotten rich from their organizations' misbehavior, and thus taking such action will require some courage. Yet such action cannot begin until we acknowledge and freely discuss the problem. The first step against health care corruption is to be able to say or write the words, health care corruption.