Our Whistleblower Lawyers Help Clients Report Home Health Care Fraud Through the False Claims Act

Our whistleblower attorneys help nurses and other professionals report home health care fraud through the False Claims Act.

Home care has exploded as the nation moves away from nursing homes toward in-home care for the elderly, ill and disabled. With the growth in services, there have also been increased government payments to unscrupulous home health care agencies who violate the law and drain tax dollars from Medicare.  The Justice Department has dedicated significant resources to stop home care fraud over the past few years. Medicare and Medicaid rely on a number of techniques to catch home health workers engaged in improper billing. Among their options for gathering information about fraudulent billing are whistleblowers, who bring qui tam lawsuits against home health care agencies through the False Claims Act.

If you have evidence of a home health care agency engaged in fraud, contact our whistleblower attorneys for a free, confidential initial legal consultation regarding the viability of reporting it to the Justice Department through a False Claims Act lawsuit. Please call 1-800-590-4116 to speak to one of our False Claims Act lawyers.

The Scope of the Problem

Fraud in this area is substantial and rising. In a recent enforcement sweep (2016) by the Department of Justice to combat more than $900 million in fraudulent billings by healthcare providers, approximately 50% involved home health agencies.

A 2015 Medicare report from Medicare puts some scope on the problem.  Improper payments in this area were found to involve at least $10 billion paid out wrongfully.  These payments went to HHAs for services that were not medically necessary, not actually provided, or lacked sufficient documentation, according to a June 2016 OIG report.

In an effort to halt or slow the extensive Medicare fraud, CMS is now rolling out a test of a pre-claim review system for HHAs in five states.  Providers in Illinois (to start) and then Florida, Texas, Michigan and Massachusetts will be required to submit documentation that services are medically necessary and properly completed before payment will be issued.  This system reverses the usual Medicare reimbursement process.

Normally, the fight against health care fraud operates under the pay and chase model.  Medicare and Medicaid pay every bill that comes in and then perform audits and investigations to recover money paid out inappropriately.  They also rely on evidence provided by whistleblowers to inform them when a provider is cheating the system.

This is simply the latest on many efforts to fight this fraud.  In the Affordable Care Act (2010), Congress required physicians to document the patient’s clinical condition, homebound status and need for skilled services.  It then required the physician to certify the accuracy of the form.  Subsequent modifications were required because of the extensive burden placed on doctors to duplicate the patient’s medical information on the form.

Types of Home Healthcare Fraud

Unscrupulous providers have found many different avenues to defraud the federal and state governments. In the home health care space, these include:

Non-Homebound

In order for Medicare to cover a home health aide, the patient must be homebound. Patients are considered homebound if they lack the ability to independently leave their residence, leaving the home is medically contraindicated, or are in need of a special transportation or help from a person or medical device to do so. A doctor must certify that the patient is homebound, in need of skilled nursing care or therapy, and under the physicians ongoing care.

Services Not Performed or Medically Unnecessary

Home care may not bill for services which were not performed or are not medically necessary. Providers are not permitted to bill the government when they are not there, do not perform the required services or exaggerate of the length of the visits. HHAs are also not allowed to bill for services which are not required by the plan of care, such as continuing to perform and bill treatment after the doctor has indicated that the patient no longer needs them.”]

Upcoding

Providers may not make more extensive plans of care for patients so that it appears they need more services than warranted by their medical condition. Services must be provided based on the needs of the patient and not the financial goals of the company or provider.

Face to Face Certification

In order to reimburse for a home health visit, Medicare requires a doctor to perform a face-to-face visit with the patient and certify the need for the HHA’s services. If the physician does not perform and sign the face-to-face certification, then billing for the services are false or fraudulent under the False Claims Act.

Unqualified Home Health Aides

Some states, such as New York, require home health aides to complete a training program in the administration of medications and other services. If an individual does not meet these requirements, they cannot bill for the services provided in violation of the state Medicaid regulations.

Kickbacks in Home Healthcare

Patient Recruiters

The payment of cash kickbacks to recruiters for identifying patients and funneling the to the agency. Fraudulent providers may pay them to supply beneficiary information so that Medicare can be billed without any services provided.

Medical Director Kickbacks

There have been cases where home services paid kickbacks to induce referrals from doctors by overpaying physicians for patient chart reviews or hiring them as medical directors without requiring any services to be performed. They also violate the anti-kickback laws when they pay a fee to a physician for each certified plan of care.

Improper Facility Referrals

Home care agencies may violate the anti-kickback laws when they provide hospitals with discharge planners or home care coordinators to induce referrals, provide free services to retirement homes, or rent space within an assisted living facility at above fair market rates in order to incentivize referrals from the nursing home.

Patient Kickbacks

Providers are not allowed to pay a kickback to patients for selecting them as a provider of services.

The Growth of HHAs

Home health agencies provide intermittent medical treatment to homebound patients who need skilled nursing, physical therapy, or other services.  In 2014, 3.4 million Medicare patients received services from more than 12,000 HHAs.  For Medicare patients, there is no copay or deductible for home health services.

The precursor to modern day home health agencies were visiting nurses.  Starting in the late 1800s, nurses would visit mothers and children at home to ensure their medical needs.  They rose again in popularity in the 1980s as an alternative to long, expensive hospital stays.

In-home health care may seem strange, but it has been popular throughout history.  Until the last few decades, the home was the dominant location for patient treatment in the United States.  It remains an iconic image due to old tv shows and movies, where the doctor shows up to perform medical care with a black bag of drugs and tools.  Although in-home treatment by doctors in the United States still accounted for as many as 40% of doctor-patient meetings in the early 1960s, the percentage fell to less than 1 percent by 1980.

In 1990, Medicare spent $3.7 billion on home care.  Twenty-five years later, it now spends $18.4 billion a year.  Part-time home care is less expensive than in-patient hospital treatment or confinement to a skilled nursing facility.

The False Claims Act

The False Claims Act imposes substantial penalties on doctors, hospitals and other health care companies engaged in fraud while rewarding whistleblowers for providing evidence of the misconduct to the Justice Department through a qui tam lawsuit.

Our Federal False Claims Act lawyers have guided whistleblower cases to several significant settlements on behalf of relators. Our largest unsealed cases are currently focused on kickbacks in violation of the Anti-Kickback Statute, but we have a broad base of experience across other types of Medicaid and Medicare fraud. In the pursuit of suspected frauds, we have brought cases to the attention of the government in many states, including New York, Florida, California and here in Philadelphia. In 2016, for example, we helped the federal and state governments recover $54 million from a Valeant subsidiary for kickbacks paid through speaker programs.

The law rewards whistleblowers for information with between 15 and 30 percent of the proceeds from the litigation, subject to numerous terms and conditions specified in the law. During President Obama's Administration, the U.S. paid out more than $4 billion to whistleblowers. For those not familiar with whistleblower cases, we have written a quick guide to the process.

Our False Claims Act attorneys undertake a thorough review of whistleblower evidence up front during the case evaluation process. We confirm that there is sufficient evidence of both inappropriate government billings as well as evidence of intentional or reckless conduct by the individuals in charge. We understand that no one person needs to have every piece of the puzzle and we have evaluated thousands of potential cases while honing our judgment. We also answer any questions that a whistleblower has in order to ensure that you can make an informed judgment about whether to proceed with a qui tam lawsuit.

To begin the process and get your questions answered, use our contact form or call 1-800-590-4116 for a free, confidential and no-obligation initial legal consultation from our whistleblower attorneys.

False Claims Act Attorneys
Eric L. Young and James J. McEldrew

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