J.D. Thomas
In June, patients of Vanderbilt University Medical Center’s transgender clinic were alarmed to learn that their health records had been turned over to the state. The health system informed patients that it shared the records as part of a TennCare billing fraud investigation by the Tennessee attorney general’s office — but those records were only a small piece of the requests.
VUMC had been handing over information since Attorney General Jonathan Skrmetti signed the first civil investigative demand, similar to a subpoena, in November. Two more followed in March. The three CIDs requested a broad swath of information, including messages from a general LGBTQ health email account, employment records for the transgender health care program and the Trans Buddy mentorship program and names of anyone referred to the center, even if they did not receive services. Court records also show a demand for documents "which contain information relating to an insufficient mental health diagnosis for services related to transgender health and gender affirming therapy" in addition to patient medical records and billing information.
The Health Insurance Portability and Accountability Act (HIPAA) gives patients the right to access their medical records and is meant to make the records confidential so entities cannot sell them without patient permission, J.D. Thomas, a former federal prosecutor and partner at Barnes & Thornburg who specializes in health care fraud enforcement and government investigation defense, tells Scene sister publication the Nashville Post.
“It doesn’t give patients any control over how an entity is going to respond to a law enforcement investigation like this,” Thomas says. “There's a law enforcement exception to HIPAA, and the law itself doesn't give patients any control over whether their medical records are provided in response to a valid government subpoena.”
Skrmetti’s office has maintained that the Tennessee Medicaid False Claims Act and Tennessee False Claims Act investigation focused on the clinic and certain providers, not patients. The investigation was prompted by a VUMC doctor who “publicly described her manipulation of medical billing codes to evade coverage limitations on gender-related treatment,” according to a statement from Skrmetti’s office. TennCare does not cover gender-affirming care, including hormone therapy, puberty blockers and surgeries.
It’s typical for CIDs to be broad, Thomas says, but the breadth of information requested by the attorney general does not appear to have a focus.
“The attorney general has the authority to investigate claims that were coded improperly and submitted for reimbursement for TennCare,” Thomas says. “The CIDs do not seem narrowly tailored to just that information.”
VUMC said in a statement in June that the organization complied with the AG requests, though the health system told the Tennessee Lookout that it did not comply with every demand. The health care system could push back, Thomas says, but only if it is too burdensome to produce the information.
“It’s very difficult to resist these because [CIDs are] used to investigate health care fraud and the potential improper spending of government money, and there's so much government reimbursement in health care,” he said.
However, Thomas said often the government will allow the target to produce less information.
“You usually don't end up in a situation of a government saying, ‘No, respond to the whole thing as written,’ and [the company] saying, ‘We can't, and if you force us to do that, we're going to go to court to get protection,’ because somebody blinks,” Thomas said.
It’s not common for companies to go to court to resist CIDs, he adds, and in a 2021 precedent the Tennessee Court of Appeals upheld a lower court’s decision to issue sanctions against a Clarksville company, Wall and Associates, for refusing to comply with a civil demand from the AG’s office.
“If you get to the point of not blinking, and you go to court to resist it, in my experience, there's a pretty decent chance of having a judge say, at least in some way, that this thing is overbroad, and you all need to try to work together to figure out a narrower path,” Thomas says. “You're never going to be in a situation where the judge is just going to say, ‘No, government, you don't have the authority to do that.’”
Skrmetti’s request stands out in that it’s focused on one relatively small clinic, Thomas says. Fraud typically occurs in areas of higher reimbursement that serve more patients, such as diabetes care, home health and hospice, cardiology or pain management.
“This doesn't necessarily seem like an area that's ripe for traditional health care fraud,” Thomas says.
The investigation reflects Skrmetti’s values, and that of Gov. Bill Lee and legislators who moved to instate the ban on gender-affirming care for youth in Tennessee despite lawsuits from the U.S. Department of Justice and the ACLU of Tennessee. Skrmetti also joined Republican counterparts in 18 states in an effort to prevent the federal government from shielding the medical records for those who cross state lines to obtain gender-affirming or abortion care.
This article first appeared via our sister publication, the Nashville Post.
