Nursing Homes Abuse Blog - By Jonathan Rosenfeld

Recent decisions by Federal Courts in Pennsylvania and Vermont may pave the way to extended Medicare benefits to individuals with chronic medical conditions. 

If the decisions are upheld, no longer will a Medicare recipient be required to demonstrate that their condition will improve in order for the treatment to be covered under Medicare. These decisions may help clarify the type of benefits a large number of Medicare recipients are entitled to who suffer from progressive conditions that are difficult categorize.

Both cases have effectively invalidated the standards utilized by the Obama administration for determining if Medicare will cover care related to treatment of chronic conditions and disabilities such as: Alzheimer's, multiple sclerosis and broken hips.

By accepting a liberal interpretation of Medicare, these courts have finally acknowledged the need for preventative medical care to prevent painful conditions and to help the elderly maintain a quality of life.  Hopefully, these decisions will pave the way for other elderly to begin to receive care that they require and are rightfully entitled to.

Related:

Medicare Standards Are Too Strict, 2 Courts Find, By Robert Pear, The New York Times, November 1, 2010

When it comes to boosting their bottom line, some nursing homes will stop at nothing-- including stealing from taxpayers.  Because many nursing home patients are elderly or too frail to verify all the charges a nursing home submits to Medicare on their behalf, it is relatively easy for nursing homes to add extra charges for medical care and therapy without raising any eyebrows.

As taxpayers, we all should applaud situations when regulatory agencies are able to uncover fraud relating to Medicare and Medicaid.  In this sense, I was happy to hear about the an investigation conducted by federal authorities and the Missouri Attorney General that resulted in large nursing home operator pleading guilty to fraud charges and paying substantial criminal penalties.

According to a news release from the Missouri Attorney General, Cathedral Rock has pleaded guilty to fraud charges stemming from improper Medicare billing and will pay $1 million in criminal penalties and more than $628,000 in civil penalties.  At the time of the fraud, Cathedral Rock operated the following Missouri nursing homes: Spring Place Care Center, McLaren Care Center, Cathedral Gardens Care Center, Oak Forest Skilled Care Center, Blanchette Place Care Center and Heritage Park.

Perhaps more disturbing than the Medicare fraud, are the allegations that during the time Cathedral Rock was committing fraud, they were providing inadequate care to the patients in their facilities.   According to the Missouri Attorney General, Chris Koster, the substandard care contributed to serious injuries and deaths of nursing home patients.

An e-mail obtained by the U.S. Attorney General during the investigation substantiates the companies misplaced priorities, "FTB (fill the beds) is everything," was what the e-mail from a Cathedral Rock regional vice president ordered to another company executive.  "Whereas compliance is important and cost control is as well, CENSUS is to be your primary focus," the e-mail added.

Courageous Nursing Home Employees

Two nurses who worked at facilities operated by Cathedral Rock were courageous enough to report the fraudulent billing committed by the nursing home operator and will also recover money for their efforts under provisions of the False Claims Act (31 U.S.C. Section 3729).

The False Claims Act empowers nursing home employees to report fraudulent billing practices perpetrated by their employers.  In fact, the government has put such a high priority on stopping Medicare Fraud that it allows employees who witness unlawful acts to bring a lawsuit against the perpetrating company on behalf of the government.  The lawsuit is referred to as a Qui Tam action.

When pursuing a Qui Tam lawsuit (whistle blower), a nursing home employee may be entitled to a substantial portion of the recovery related to the fraudulent billing practices.  Depending on the circumstances and the government's role in the case, individual(s) responsible for bringing Qui Tam cases may personally be entitled to 20% to 30% of the total recovery.

Medicare Fraud is Widespread

By some accounts, more than 10% of the governments annual $50 Billion in Medicare charges is misappropriated due to fraud!  

Common examples or Medicare Fraud that have formed the basis for Qui Tam / Whistle-blower lawsuits include:

• Billing Medicare for services that were never provided
• Charging Medicare for services with a patient who was deceased or no longer a patient in the facility
• Inflating time sheets that do not accurately reflect the time spent with patients
• Using inferior medicine or medical equipment, yet billing the government for the premium services
• Billing more than once for the same service
• Offering free items or services in exchange for a Medicare or Medicaid number
• Waiving co-payments routinely
• Someone other than the physician completing the Certificate of Medical Necessity
• Pharmacy fraud

If you work in a nursing home and have knowledge of fraudulent billing practices, you may be entitled to bring a cause of action against the facility.  As long-time nursing home litigators, we can put our knowledge of internal nursing home operations to work for you.

We would honor the opportunity to speak with you regarding your situation.  As always, all of our consultations with perspective clients are free and completely confidential.  (888) 424-5757. 

Related:

If I Work In A Nursing Home Where I Suspect Fraud, Can I File A Qui Tam or Whistleblower Lawsuit?

FALSE CLAIMS ACT CASES: GOVERNMENT INTERVENTION IN QUI TAM (WHISTLEBLOWER) SUITS

Attorney General News Release, Missouri Attorney General, January 7, 2010

An anticipated decision by the 11th Circuit Court of Appeals may alter the way medical treatment is dispensed for Medicaid recipients.  Under the current system, Medicaid recipients are entitled to receive 'medically necessary' treatment as prescribed by their physician.  In cases of disabled or handicapped people this frequently means home nursing care by a CNA or therapist. 

The case pending before the 11th Circuit involves Anna Moore, a 14-year-old Georgia girl, who suffers from a seizure disorder since birth.  Because of her ongoing risk of stroke and breathing problems, Anna's physician prescribed round-the-clock nursing care. Despite the medical order from Anna's physician (and years of approving the nursing services), officials at Georgia Medicaid decided to arbitrarily reduce the number of weekly hours provided by a home nurse. The reduction occurred despite the fact there was no change in Anna's medical condition.

Anna’s mother initiated a lawsuit against Georgia Medicaid to force the government agency to provide home nursing as prescribed by Anna’s physician.  The decision is now in the hands of the Appellate court after a lower court ruled in favor of the disabled girl.

At issue is the state’s right to overrule medical orders from a treating physician because the state does not agree with the prescribed treatment.  Advocates for Medicaid recipients question the financial motive behind an administrative agencies right to withhold medical treatment.  “[I]f a state budget is pinched, what might have been medically necessary in June won’t be in July…and a medical opinion as to the necessity as to necessity simply isn’t relevant,” said Greg Mellowe a healthcare policy directory at Florida CHAIN.

Lawyers for the state question the medical necessity of some of the treatments prescribed by physicians.  “When left to their own devices, they advocate for their patients and deem all manner of unproved, dangerous, ineffective, cosmetic, unnecessary, bizarre, and controversial treatments as ‘medically necessary,’” according to a court brief filed by the Florida Attorney General.

The 11th Circuit’s decision directly impacts the states in its jurisdiction: Florida, Georgia and Alabama, but the courts ruling will likely set a precedent for all Medicaid recipients in other states.  The court’s ruling will likely be issued in several months.

Read more about this pending court decision here.

Yes. Under the Federal Civil False Claims Act (31 U.S.C., Section 3729), private citizens act on behalf of the Federal or State Government to bring an action against government contractors or any company who acts fraudulently with government funds. Under the False Claims Act, a qui tam lawsuit entitles individuals employed by the entity guilty of fraud to bring a lawsuit for fraud-related damages against the offending company. 

Fraud Is Rampant In The Nursing Home Industry

Many nursing homes and medical service providers have turned to illegal practices to boost their bottom line.  By some accounts, up to 10% of Medicare charges have some some type of fraud. Examples of fraud-related qui tam cases in the nursing home setting include:

• Ghost billing- billing for patients that do not exist
• Using inferior medicine or medical equipment, yet billing the government for the premium services
• Billing more than once for the same service
• Billing for services not performed
• Offering free items or services in exchange for a Medicare or Medicaid number
• Waiving co-payments routinely
• Someone other than the physician completing the Certificate of Medical Necessity

Qui Tam Lawsuits Can Be Lucrative To Those Who Report Fraud

The government recognizes that fraud in the medical field leads increased costs and inefficiency.  Further, the government realizes that they have the best chance of discovering medical fraud by providing a financial incentive to those who witness illegal acts.

If you uncover a situation where you believe the government is being defrauded, qui tam whistleblowers have the right to recover between 15 and 30 percent of the total amount recovered from the fraud lawsuit.   The damages related to qui tam lawsuit can be substantial as the party initiating the lawsuit can sue for triple the amount of actual fraud damages plus civil penalties ranging between $5,500 to $11,000 per claim. 

For example, if a nursing home charged Medicare $50 per physical therapy sessions for 1,000 sessions, it never provided to residents, the potential damages under a qui tam theory could be $11,150,000 ($50 x 1,000 = $50,000 x 3 = $150,000 + 1,000 x $11,000).  In this case, the whistleblowing employee could be entitled to $3,345,000.

In the year 2003 alone the amount of U.S. recoveries in qui tam cases totaled 7.8 billion, with whistleblowers recovering a total of 1.3 billion.  If you suspect any person, company or entity involved in defrauding the government, you should contact an experienced qui tam lawyer. 

At Rosenfeld Injury Lawyers, not only do we have experience handling qui tam matters, but we have the unique advantage of understanding the inner workings of nursing homes and other medical facilities having litigated many cases against these entities.  We put this experience to work for you.

Lastly, qui tam cases require you to act quickly. In many situations only the first individual to file a claim will have a right to compensation.

Examples Of Qui Tam Related Recoveries:

• $355,000,000 AstraZeneca
• $334,000,000 Amerigroup
• $325,000,000 HealthSouth
• $257,000,000 Bayer
• $155,000,000 Medco Health
• $49,000,000 Pfizer
• $26,000,000 Key West Pharmacy

Qui Tam Web Resources:

FALSE CLAIMS ACT CASES: GOVERNMENT INTERVENTION IN QUI TAM (WHISTLEBLOWER) SUITS

Medicare Fraud

HHS Takes Further Steps to Protect Medicare From Fraudulent Durable Medical Equipment Suppliers

Its a fine line between ordering an under performing nursing home to close its doors versus giving the facility an opportunity to improve.  Many of the 'under-performing' facilities are responsible for caring for some of the most challenging residents--those that other facilities are incapable or simply refuse to care for.  In the end, resident safety needs to preempt all other factors when making a determination as to a facilities future.

Case in point, Whispering Pines Nursing Nursing Center-- which has lost its Medicare and Medicaid funding-- effectively forcing the facility to close its doors.  The decision to pull federal funding was due to serious deficiencies relating to patient safety discovered during inspections of the facility. 

Consequently, 128 patients and 140 employees will need new facilities to live and work in within the next 30 days.  Among the safety problems at Whispering Pines noted in a recent report include:

• Failing to investigate allegations of abuse
• Failing to provide condoms to sexually active, HIV-positive residents
• Not regularly screening residents and employees for tuberculosis

"Whispering Pines has chronic problems, and they're unable to provide us with any credible evidence that they could clear them up," said Dorya Huser, long-term care division chief for the Oklahoma health department.  "We're looking out for the best interest of the people that live there and deserve a better standard of care."

According to Dr. Tom Merrill, the medical director at Whispering Pines, moving the residents will traumatize and disrupt their care. "It is good care by excellent nurses who are faced with patients that have challenging psychiatric problems.  This is not good for any of them."

Who could argue that residents deserve to live in a safe facility?  However, is it realistic to expect psychiatric residents to find a new facility with just 30 days notice? Is any way an under-performing facility can be turned around?

Whispering Pines Nursing Home In The News

Family Alleges Abuse At Norman Nursing Home

Nonprofit sought answers in abuse at Whispering Pines Nursing Center

Norman Nursing Home Nightmare

Last week, I had the honor of being invited to Martin Sabel's, a/k/a Mr. Eldercare, radio program, 'Ask Mr. Eldercare' to discuss the new Medicare rating system for nursing homes.  It was great fun to discuss this new development in nursing home care with such a knowledgeable man.  Martin has helped thousands of families handle the financial problems encountered when faced with placing a loved one in a nursing home or assisted living facility.   Listen to the full interview here.

Residents at Michigan's Metron Nursing Home in Allegan will soon be looking for new places to live following the facilities violations of  federal nursing home regulations.  Metron has received 11 federal violations, including a violation concerning immediate jeopardy to a patients health.  It is unfortunate that resident's must be displaced and care routines will be interrupted, but there is a reason that federal nursing home regulations are in place--to provide quality care for nursing home residents.  What residents and visitors may not see, may lead to serious lapses in the quality of patient care in the future.  Metron operates seven nurisng homes in Michigan.  Read more about the revocation of Medicare and Medicaid funding here.

 

The Green Meadows Health Care Center in Louisville, Kentucky has lost its Medicare and Medicaid funding after repeatedly putting their residents at risk for danger and not investigating resident injuries.  No specific act of wrong doing is cited in the denial of government funding.  Rather, the nursing home  has received numerous type 'A' citations.  Type 'A' are the most serious and are dealt out when a nursing home resident's safety is endangered. 

Nursing homes rely almost completely on government payment to operate.  Once Medicare and Medicaid funding is lost, most nursing homes must close their doors.  Most nursing homes rely on government funding for 80-90% of their budget.

The situation at Green Meadows demonstrates the importance of making complaints regarding dangerous nursing home care.  Making a complaint with your state regulatory agency not only helps with determining the cause of nursing home abuse or neglect, but it also creates a record for future use  in screening facilities by others. 

Facilities that receive ongoing complaints are subject to having their licenses pulled and government funding withheld.  If you believe that a nursing home in your area is putting the safety of residents at risk, look at the link here to learn to file a complaint against the facility using your state's nursing home ombudsman and investigators.

Nursing Home Injury Laws: Kentucky

Many disabled and elderly residents of New York will soon be expected to pay more personal funds toward their nursing home expenses.  The changes are being implemented to minimize government spending by reducing the number of people eligible for Medicaid.  Medicaid was originally conceptualized as a program to protect the poor and disabled.  As the population ages, many people are seeking benefits under Medicare that the system never considered-- middle class people living in nursing homes.

Qualifying for Medicaid is not easy.  A thorough background check is conducted for each recipient.  All assets must be disclosed- including, bank accounts, homes and even vacation homes.  If the Medicaid recipient has any assets to speak of, the assets must be 'spent down' their current assets in order to receive Medicaid benefits. 

The process of determining Medicaid eligibility is further complicated by marriage.  In many states, a spouse not living in a facility is considered to be a 'community spouse'.  The community spouse is generally entitled to keep a faxed amount of assets and keep a house and car. 

In, New York, close to 80% of the nursing home residents are recipients of Medicaid.  Nursing home residents who qualify for Medicaid receive substantial discounts for the  for the facilities.  At many nursing homes, the Medicare reimbursement rate is so substantially discounted, the facility actually loses money every day for each Medicaid patient it provides care to. 

In order to keep their facilities open, many nursing homes are asking for financial documentation when a person applies.  For more information on Medicaid funding look here.

How can we continue to foot the bill for 80% of the nursing home population?