By DAVID BERTOLA
Business First

Assistant U.S. Attorney Robert Trusiak says as his caseload grows, more and more matters are being brought to him by way of whistleblowers.

"What I prosecute has increasingly been dominated by them. It used to be whislteblower actions were a modest portion of the docket," he said. "It grows and it continues to grow."

In recent years, Trusiak said, his caseload had been comprised primarily of local cases that involved a single health-care provider.

"Now, there's more of an influx of national cases filed in this judicial district, those with nationwide implications," he said.

Trusiak estimates that approximately 75 to 80 percent of the cases he prosecutes originated from people with inside knowledge.

In his 12 years with the U.S. Attorney's Office, he has worked primarily on health-care fraud cases. Prior to the eight years he's worked in Buffalo, he worked four years as an assistant U.S. attorney in the Northern District of Ohio.

He also is a member of the Health Care Fraud Task Force, comprised of the FBI, IRS, U.S. Office of Health and Human Services/Office of Inspector General, New York State Attorney General's office and representatives from area health-insurance companies. Task-force members share information with each other and investigate health-care fraud cases.

Of all the cases the task force investigates, a spokesperson estimated, nearly half began with calls from whistleblowers.

One civil whistleblower case, filed under the False Claims Act in Buffalo by Craig Patrick and Charles Bates, was settled earlier this year. It involved Kyphon Inc., a medical device manufacturer.

Patrick and Bates, former Kyphon employees, claimed that the company persuaded hospitals to keep patients overnight. Doing so, they claimed, created a deluge of false Medicare claims related to its kyphoplasty procedure, a minimally-invasive surgery to treat compression fractures of the spine.

The procedure could have been performed as an outpatient surgery. Hospitals, however, would buy Kyphon products, priced at around $3,500, with the goal of recouping costs by making improper Medicare reimbursements as patients stayed the night.

Kyphon denied any allegations of wrongdoing. In May, the company agreed to pay the U.S. $75 million to settle allegations that it was involved in the submission of false claims to Medicare.

For turning in their former company, Patrick and Bates split $14.9 million.

"It's impossible to recognize the breadth of whistleblower actions, as they're wide in scope," Trusiak said, citing Peggy McFarland, an investigator in his office, for her work on the Kyphon case.

"She and others in the office have really demonstrated a tireless enthusiasm on nationwide whistleblower cases that require a lot of work," he said.

After the Kyphon case was resolved, Trusiak said, his office received calls on more and more whistleblower actions. These, he said, run the gamut of pharmaceutical fraud and off-label marketing, which involves a pharmaceutical company marketing a drug for a use other than what the FDA approved it for. This happens, he said, when a generic counterpart becomes available, driving demand down for the name-brand drug.

Trusiak believes the task-force setup in Western New York, where payers and federal or state agencies work together to share names and information about schemes, is rare.

"The health-care task force is comprised of a meaningful compilation of federal and state officials who, in my judgment, are rather unique in that they sit down and share information," he said. "The work we do here is taking a more proactive and aggressive approach. Sharing information is always to the good of the taxpayer."