Our attorneys are now investigating nursing home abuse at the St. Francis Center for Rehabilitation and Healthcare after the Pennsylvania Attorney General’s Office raided the facility on Wednesday.
The Justice Department announced the resolution of a False Claims Act lawsuit with a $75 million settlement by Chemed Corporation and various wholly-owned subsidiaries, including Vitas Hospice Services. The settlement is the largest amount ever recovered under the False Claims Act from a provider of hospice services, according to Acting Assistant Attorney General of the Civil Division, Chad A. Readler.
The Office of the Inspector General (OIG) issued an Early Alert in late August following disturbing reports of abuse against Medicare Beneficiaries during stays in Skilled Nursing Facilities (SNFs). The Alert explained that an estimated 22 percent of Medicare beneficiaries experienced adverse events while at an SNF and 69 percent of these incidents could have been prevented with better care.
The U.S. Government is stepping up enforcement efforts against home health services fraud according to an Office of the Inspector General (OIG) alert recently published.
When medical malpractice attorneys evaluate cases, they frequently look for a particular error by a medical professional which leads the patient to suffer an adverse consequence and can be pinpointed as outside the standard of care by an expert in the field. A new study published in BMJ Open has identified insufficient staffing levels as a possible cause of mortality, and this raises the question of whether institutional factors should be taken into account when compensating patients in addition to a particular medical error.
There was an article in the Wall Street Journal today about the increasing percentage of patients on ultra high therapy in nursing homes. Over the past twelve years, the percentage of patients receiving the highest level of federal payments for nursing care has skyrocketed from under 10% in 2002 to more than 50% in 2013.
Although not conclusive, this sort of increase seems characteristic of a system fraught with Medicare fraud. With numbers like these, we expect to see more whistleblowers filing False Claims Act lawsuits (or presently filed cases becoming unsealed). There have already been at least three filed against HCR ManorCare. In April, the Justice Department announced it would intervene in the lawsuits and pursue an enforcement action against the skilled nursing facility operator.
The complaints that we have seen in cases like this one are generally pretty horrific. They recount stories of nursing homes providing lengthy therapy sessions to deteriorating patients incentivized by the Medicare billing guidelines. Nursing homes which provide more than 720 minutes of therapy per week could bill the U.S. Government’s Medicare program for an average of $559 per day.
The article also draws attention to the number of patients getting the highest level of therapy in nursing homes and then going into hospice care. Hospice payments have been made for those patients who are dying and seems a bit contradictory for the facilities to be using high levels of rehab on patients who are about to be declared beyond hope for treatment.
This is not the only area where newspapers have noted problems among health care providers. This article follows one published in the Wall Street Journal at the beginning of June noting the large percentage of long term care patients discharged by hospitals around the time of maximum earnings. The study of ventilator patients published by Health Affairs concluded that decisions are not being driven by patient need.
Instead, the even distribution of discharges before the prospective payment system was implemented soon led to a large and noticeable grouping of patients discharged on or immediately after the highest level of Medicare payments kicked in. This suggests either that patients were kept longer than medically necessary in order to fraudulently obtain additional government payments or they were released earlier than warranted to put their health at risk.
In April, President Obama signed a bill passed by Congress that would stop Medicare payment reductions to doctors and focus more on the quality of care they provide. This legislation followed up on an earlier initiative under the Affordable Care Act to reward doctors with more pay when they provide high quality care at lower cost. Until initiatives like these begin solving the problems identified in these two areas, we will have to depend on whistleblowers to inform the government about fraudulent billing practices.
The U.S. Government has promised to update Medicare and Medicaid rules in order to increase the quality of care provided by nursing homes and long term care facilities to the 1.5 million people living in them. The guidelines that determine when a nursing facility qualifies for a government payment were last updated in 1991.
Skilled nursing has been one of the hottest areas for whistleblower lawsuits under the False Claims Act. Many skilled nursing facilities, hospice and home health care providers have been accused of engaging in health care fraud. HCR ManorCare is the latest to be involved in a lawsuit for the overbilling Medicare for its health care services.
The complaint filed by the Federal Government, and unsealed today, accuses HCR ManorCare of improper billing for Medicare and Tricare services in multiple ways. The complaint predominately focuses on unnecessary services and upcoding to increase the amount the company could bill the federal healthcare programs.
The Medicare rate for skilled nursing depends on the Resource Utilization Group (“RUG”) of the patient. There are five groups ranging from Rehab Low to Rehab Ultra High. According to the complaint, ManorCare set high targets for the percentage of patients billed at the Ultra High rate and expected its therapists to do whatever it took to meet them. It also instructed its therapists to use group therapy sessions to boost Ultra High billings. When Medicare changed its billing rules for concurrent sessions (group therapy) in 2010, the company increased its group sessions in order to make up some of the lost money.
ManorCare also tried to bill for its patients as long as possible regardless of the medical necessity of the services. The company placed various impediments in the path of its employees to make it difficult for them to discharge patients. It required contact with a Regional Rehab Manager before discharging a patient that had been a beneficiary for less than 35 days. It also required the facility to obtain approval by telephone from a Medicare Operations Specialist.
Additionally, ManorCare undertook a project to expand the length of stays by Medicare patients in order to offset perceived reductions in Medicare payments. The campaign did not assess whether there was a medical need for an extended stay by the patient.
The lawsuit was started under the False Claims Act by three former employees of the company. They were employed as an occupational therapist, a physical therapist and a physical therapy assistant at various entities controlled by the company. If the federal government is able to recover money from the company, they may be eligible for a reward of between 15 and 25 percent of the penalty paid.
The company operates facilities under the Heartland, ManorCare Health Services and Arden Courts. It had more than 60,000 employees and 500 locations in 2007. It has a large presence in Pennsylvania as well as Florida, Illinois, Ohio and Michigan. Medicare paid the company more than $6 billion during the time period at issue. If the allegations listed in the complaint and described above are true, the company could be looking at a substantial settlement given the treble damages provisions in the law.
HCR ManorCare is not the only company to be sued under the nation’s primary tool against fraud. Extendicare agreed to pay $38 million last year to settle a lawsuit concerning substandard nursing care under a worthless services theory. Life Care, Golden Living and Kindred Healthcare, or one of their subsidiaries, have all been involved in litigation under the False Claims Act in the last few years.
Health care whistleblowers are able to bring information about Medicare fraud at skilled nursing facilities to the attention of the Department of Justice through the False Claims Act. If you suspect fraud by a nursing provider, please contact one of our False Claims Act attorneys for a free consultation and additional information about the law and evidence required.