Another corruption allegation struck the Broward Health hospital system Wednesday when a longtime compliance manager accused members of the organization’s board and some of its leadership of attempting to retaliate against those who report wrongdoing.
‘The individual misconduct would seemingly defy logic’
By Dan Christensen and Buddy Nevins, FloridaBulldog.org – Broward Health fails to enforce its own its own rules; lobbyists operate freely behind the scenes.
The following letter was received from an anonymous source and I thought that I would pass it along in it’s entirety as an article.
I want to remind all the readers of this blog – that the mission here has always been and will continue to be an effort to make Broward Health the finest public hospital system in the country. To that end, fast talking & slick dealing whether lawful or merely ethical breaches must be stopped and exposed. It is an embarrassment to the fine men and women comprising the nearly 8,000 employees of the system.
Thank you to the anonymous writer of this letter. I quote without comment:
“To the Commissioners of the North Broward Hospital District
I urge you to read the following in its entirety. I implore you to honor your responsibility in performing appropriate oversight and making reasonable inquiry into the allegations contained in this letter.
I must relay this message anonymously, due to the increasing culture of fear, intimidation and retaliation at Broward Health. Despite what you may have heard, Broward Health’s “anonymous” internal reporting system is anything but. I will explain in more detail below.
I assure you that I am not writing for political, personal or private gain. My sole purpose is to put you on notice, and create a record of impropriety and unethical behavior that has yet to be addressed in any meaningful way. Your lack of action has encouraged this behavior.
The most egregious occurrence took place after the Board Meeting of 04/27/16. I cannot wait until the next meeting to speak. I cannot participate in betraying the trust of the entire workforce and the taxpaying public.
- The General Counsel is permitted to engage in deceptive behavior and is collecting all “anonymous” employee complaints and reports
Before discussing the issue at hand, please review the below Broward Health Policy, created by General Counsel with assistance of External Counsel (Foley & Lardner):
Broward Health Policy GA-004-242 – Response and Prevention of Offenses – Sections D.7 and E.7 state:
“No Broward Health Workforce Member, with the exception of the General Counsel or his or her designee, or any person or entity retained by Broward Health to assist it in conducting a Preliminary Review or Focused Investigation will engage in any deceptive or pre-textual conduct”.
Compare this with the Florida Bar’s Rulesof Professional Conduct 4-8.4 (c), which states:
“A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that it shall not be professional misconduct for a lawyer for a criminal law enforcement agency or regulatory agency to advise others about or to supervise another in an undercover investigation, unless prohibited by law or rule, and it shall not be professional misconduct for a lawyer employed in a capacity other than as a lawyer by a criminal law enforcement agency or regulatory agency to participate in an undercover investigation, unless prohibited by law or rule”.
Policy GA-004-242, drafted at least partially by the General Counsel, allows her to engage in deceptive conduct, despite the Florida Bar’s prohibition to the contrary.
You may ask yourself, why would “any person or entity retained by Broward Health to assist in conducting a Preliminary Review of Focused Investigation” be allowed to engage in deceptive conduct, if their goal is truth-finding? That’s a good question.
Under El-Sanadi’s leadership, the role of General Counsel was greatly expanded, and many other departments were re-aligned off the record to be subordinate to her office. As before, you may ask yourself, why would the employee (the General Counsel, due to her expanded oversight) be allowed to engage in deceptive conduct? There is no good answer.
This has allowed the General Counsel’s power to expand without any meaningful oversight, after all, she is allowed to engage in deceptive conduct. Many wasteful, inefficient and even unethical policies, procedures and processes have been created and implemented since.
- Deceptive CIA Compliance under the General Counsel
The Management Certification and Sub-Certification Process (the “Process”) is required by the Corporate Integrity Agreement (“CIA”), which impacts 100 employees. The Process is a way of having employees attest that their area of responsibility is in compliance with policies, procedures, and laws. The forms used as part of the Process were changed by the General Counsel and Foley & Lardner to literally remove the ability of the attesting employee to certify that their area of responsibility was not in compliance. This was done intentionally- meetings occurred with Dr. El Sanadi, General Counsel, and Foley & Lardner to discuss the need for “clean certifications”- meaning not only that there was no way to indicate that the employee’s area was not in compliance, but also no way for the employee to hand-write in further details regarding their area’s compliance. Further, instruction was given by General Counsel and Foley & Lardner to remove written examples of compliance issues for employees to report, leaving the workforce in a position to blindly guess over which sorts of problems should have been reported in the first place. The General Counsel, who is allowed to be deceptive, has now created a shadow over any employee who wants to accurately fill out their Process forms.
This has created endless red tape, and has turned what was supposed to be a regulated compliance process into another egregious example of misconduct.
What will happen when the CIA annual reporting period ends and employees are required to provide the annual Management Certification? Questions will arise as to why were they certifying compliance on a monthly basis (due to the ethically massaged forms discussed above) but cannot provide an annual certification, due to the lack of the ability to state that they’re not in compliance. Could one reasonably say these monthly certifications were crafted to be deceptive by the employee who is empowered to engage in deceptive conduct? The CIA has stipulated penalties of $50,000 per occurrence of a falsified Management Certification. I urge you to ask employees what they think of this process and prepare for what will happen in six months.
Why else is it important for employees to have the ability to say, “no, I cannot certify” that they are in compliance and be allowed to provide an explanation?
On or about December 31, 2015, Bob Martin, Chief Financial Officer (“CFO”), was asked to complete the CFO Certification. The CFO Certification included an attestation that Unallowable Costs related to legal fees in defending Broward Health in United States of America ex rel. Michael Reilly, M.D. vs. North Broward Hospital District were removed from the Cost Report. Although the action of removing Unallowable Costs had to be performed within 90 days according to the Settlement Agreement, the CFO Certification was not required to be signed until the First Annual Report was due later in 2016 per the CIA (page 28). Upon being asked to complete the CFO Certification, Mr. Martin specifically asked that his CFO Certification form be revised to include the ability to say “no” regarding compliance. Mr. Martin was explained that under the direction of General Counsel and Foley & Lardner, the lack of ability to say “no” or to include reasons why were removed from various CIA certification forms. Mr. Martin then asked for the form to be changed, so that he could certify (with regard to whether he was in compliance) to say, “yes, with exceptions”. Did Mr. Martin have something important to convey?
Below is Mr. Martin’s attestation that Unallowable Costs were removed from the Cost Report.
Yes, with the following exceptions:
“This Certification only covers the period up to and including December 31, 2015. Based on advice and direction from Broward Health’s Internal General Counsel, Only External costs were to be considered non-allowable and removed from the Cost Reports. All Internal Costs were considered allowable and were not removed from the Cost Reports. Also, due to lack of adequate record keeping by Broward Health’s previous External General Counsel Firm, an estimate of 20% was used to determine the portion of the Firm’s fees from 2011 through 2015 that were considered non-allowable (as defined in the Settlement Agreement) based on the advice and direction from Broward Health’s Internal General Counsel.”
Why could Mr. Martin not simply state, “Yes – the requirement was met”? Was there doubt in guidance given by General Counsel (who is allowed to be deceptive)? Did the Office of Inspector General and Department of Justice intend on an estimate being calculated rather than precise accounting practices? Do we have documentation that this estimate was appropriate and met our CIA obligation? Mr. Martin’s certification sounds unsure. Mr. Martin was terminated soon thereafter.
III. Aggressive Threats toward Medical Staff
There were Board Meetings spent discussing physicians not signing the initial Code of Conduct and hospital Policies. Any layman can read pages 8-9 of the CIA and see that the requirement actually mandated distribution of the Code and Policies to all Covered Persons (which included physicians), not signatures. Other organizations with the exact same CIA language have done just that – distributed and succeeded – without damaging their reputation with the medical staff. How much time, staff hours and money was wasted conducting witch hunts and putting doctors on trial at Board Meetings with threats of medical staff revocation because of a signature requirement that was unnecessary? This is one of many overzealous, wasteful responses to what should have been an easy implementation with appropriate foresight and interpretation. Who made the decision to carry out such a simple requirement in this manner while spending millions of dollars on legal advice that was at best, inefficient, and at worst, misinterpretation – all unmonitored and unquestioned?
Finally, there is the engagement of Baker Donelson, and the most recent development associated with them that necessitated writing this letter today. Broward Health was required per CIA (pages 40-42) to engage an Independent Review Organization (“IRO”) to perform a Systems and Transactions Review related to Focus Arrangements. The requirements regarding qualifications, responsibilities and independence/objectivity of the IRO are all listed on pages 40-42 of CIA, yet they have been ignored.
- General Counsel has stated that the IRO was unilaterally selected by Dr. El Sanadi – an all too common response and excuse these days for scenarios that should have involved legal guidance and/or review.
- Scott Newton of Baker Donelson expressed to a Broward Heath employee that he was actually contacted on his cell phone by Myla Reizen of Foley & Lardner, the law firm that Broward Health continues to pay unquestioned and unnecessary legal fees to. Ms. Reizen also has a prior relationship with General Counsel. How exactly was this IRO chosen? Are they truly independent? Are they allowed to be deceptive under the Broward Health policy discussed above?
- There is question as to whether Baker Donelson has the necessary experience and qualifications to be an IRO. Interviews and billable hours thus far have demonstrated lack of experience including the billing to Broward Health for tasks and work product that an IRO should already be knowledgeable in and possess. The IRO should not be charging Broward Health for a learning experience. Where is documentation of the due diligence for such an important obligation?
- Broward Health has already been charged in excess of $200,000 for work not substantive or related to an actual Systems or Transactions Review related to Focus Arrangements. In fact, a Systems and Transaction Review cannot even be performed yet according to the OIG monitor. What are we (and the taxpayers) paying for? Are we being double or triple billed for attorney attendance at meeting and interviews? Are we paying for necessary services? Do charges billed line up with the contractual scope of representation?
- One employee interview with Baker Donelson (that I have personal knowledge of) went completely off scope including a line of questioning regarding personal relationships between executives. There is no reason for an outside, supposedly independent organization to be asking these questions unless they are being instructed by other Broward Health employees to do so. There would have been no knowledge on the part of Baker Donelson to ask these questions unless prompted by other Broward Health employees. The interview that occurred with Baker Donelson immediately prior to this occurrence of inappropriate questioning was that of the General Counsel. Is the General Counsel and the IRO using their ability to be deceptive to ferret out dissent? Are we paying vendors to perform a witch hunt? Does this sound like an independent review?
- As a result of the runaway billing (outside course and scope), an estimate of hours and expenses was requested from Baker Donelson by the Corporate Compliance Department to keep expenses reasonable. Soon after this request, Baker Donelson requested to be transferred under and report to the General Counsel’s office citing inference. Does this re-alignment under the oversight of General Counsel allow them to be deceptive?
- MOST IMPORTANTLY: On May 4, 2016, Baker Donelson made a formal request to General Counsel to provide them with ALL documents relating to the Corporate Compliance Disclosure Logs, database, interviews, reports summaries, reporter identities, including all documents related to anonymous and confidential reports made by employees.Immediately after this request, General Counsel forwarded it to the Corporate Compliance Department with the expectation that this confidential document turnover occur immediately. Baker Donelson has not been retained to ferret out anonymous employee complaints. A Systems and Transaction Review related to Focus Arrangements DOES NOT include provision of confidential and anonymous reporting maintained in the Disclosure Log for the entire Broward Health workforce. This is a complete betrayal of (previously encouraged) employee confidentiality and trust. It is the right of every employee to know that this behavior would be encouraged on the watch of General Counsel. This action will chill the ability of any employee to anonymously report actual or suspected compliance issues without retaliation or improper provision of confidential information to undeserving third parties. This action WILL undermine the entire mechanism in which the workforce is expected to report actual or suspected issues. I will leave it to the reader to imagine what the true motive for this inappropriate attempt at accessing information was for. I will not stand by as a silent witness while this behavior occurs. This is unacceptable.
A formal complaint with documentation will be submitted to the OIG Monitor whom was previously assured the independence of Baker Donelson.
All employees have the right to know that this confidential reporting mechanism is in jeopardy. The anonymous complaints have been requested by persons inside and outside of Broward Health. All Certifying and Sub-Certifying employees have the right to know as they are included in these policies and processes and their employment is affected when these behaviors occur.
The appropriate next steps are not to figure out who is writing this e-mail, or how to retaliate against them. Communications from Kevin Fusco and Commissioner Di Pietro on 3/2/16 and Commissioner Rodriguez on 3/22/16 assure that retaliatory behavior is not condoned. Will the first steps be to identify and retaliate or will it be to address the actual message and demonstrate accountability?
The appropriate next steps are to make reasonably inquiry into these matters including:
- Review of Policy GA-004-242 and the Florida Bar Rules of Professional Conduct.
- Review of ownership and decisions made during CIA implementation including working documents for Management Certification changes and other tasks.
- Review of Mr. Martin’s Chief Financial Officer Certification history.
- Review of the relationship with Baker Donelson including initial engagement, scope of work, actual work performed, expenses paid, and the relation to actual scope of engagement versus attempted scope. Objective review of whether they are truly “independent.”
- Review of the attempt by General Counsel on May 4, 2016 to provide entire, non-redacted Disclosure Logs, confidential employee reports and allegations to Baker Donelson.
- Review allegedunilateral decisions made by Dr. El Sanadi including contract awarding, personnel hiring, role and oversight and departmental shifting, without review or approval.
- Review of collateral damage including costs of bad decisions, loss of morale and ineffective policies, procedures and processes initiated by General Counsel (that are not simply accounted for in budgeted or unbudgeted legal costs in excel spreadsheets)
- Review of the continued absence of legal guidance in areas where actually needed.
- Re-review of legal guidance given regarding appropriateness of Shade Sessions at Special Board Meetings. Contrary to Commissioner Ure’s recollection, actual meeting minutes reflect that General Counsel stated a Shade Session to discuss ongoing investigations was appropriate. Commissioner Di Pietro is the one that requested a separate legal opinion be received.
Unfortunately, this is just scratching the surface. You have been given the appropriate starting point. Willful ignorance and naivete are no longer an option.
We are nearing the end of the road where employees will bring issues to the Board internally. If this is not addressed with swift and immediate action from the top down by the responsible governing body, this information will be handled from the bottom up. Further absence of appropriate oversight and inquiry can only be considered wanton disregard. Further absence of appropriate oversight and inquiry will leave no choice but for employees to communicate with any agency or stakeholder with whom Broward Health does business or is expected to provide outcomes to that will listen to their complaints, including but not limited to: Officer of Inspector General, Department of Justice, Officer of Inspector General Monitor, Laura Elis, Florida Bar, Agency for Health Care Administration, Joint Commission, State Attorney’s office, citizens, all employees, television stations, newspapers, bloggers, Health Care Compliance Associate, Society of Corporate Compliance and Ethics, qui tam attorneys, employment attorneys and other healthcare organizations in Florida.
Others have stood and spoke at Board Meetings, stating that this corporate chaos has not affected healthcare services that we provide – I respectfully disagree. The continuum of healthcare includes all employees and departments within Broward Health. When one department struggles or fails, it will directly or indirectly impact all others. When one department cannot hire FTEs, has to flex down staffing or cannot order supplies as the result of corporate waste, it will directly or indirectly impact others. It may not be immediately apparent or easily measureable, but these behaviors including conflict of interest, lack of accountability and policy supported deception absolutely impact the overall function of this organization and services that we provide.
I urge all employees and the Board to ask questions and demand answers. Attend Board Meetings and demand answers as to why this is allowed at the corporate level. Demand answers as to why this is not addressed with the supposed transparency that is verbally touted at Board Meetings. Demand answers as to why a direct report to the Board is not held to the same standard as other Broward Health employees.
The mission of Broward Health is to provide quality health care to the people we serve and support the needs of all physicians and employees.”
A former Broward Health purchasing director accepts a free flight in a Lear jet from a major vendor at the agency and requests that another potential vendor hire him as a consultant in order to get the work.