From the category archives:

Health Care

Medicare Fraud Whistleblowers Will Receive Over $7 Million After Convincing Jury that Nursing Home Provided Worthless Care to Residents

by Nolan and Auerbach on February 12, 2013

Vanessa Absher and Lynda Mitchell are nurses that worked for years at the Momence Meadows Nursing Center, a 140-bed skilled nursing facility in Illinois that houses disabled and elderly patients, the majority of which are Medicare and Medicaid beneficiaries.

According to Ms. Absher and Ms. Mitchell’s qui tam lawsuit, a number of residents at the facility received grossly substandard care for which Medicare and Medicaid were billed. They also allege that they were directed to falsify patient and medication records to reflect that care and medication were given; and staffing records, to show minimum staffing levels were reached. They were also told to “rechart” patient records, in order to conceal events that led to the injury, illness, or death of some residents.

The nurses allegedly complained to management about the inadequate care being provided to residents, the failure to provide medications and meals to patients, the appalling condition in which residents were found, and other incidents involving the facility’s employees. They also supposedly complained to their supervisors that the facility failed to comply with federal and state laws governing quality of care.

In response, the facility allegedly subjected Ms. Mitchell to continuous verbal abuse and hostility, and she was told to “shut her mouth” and told she could be terminated if she continued to complain. Ms. Mitchell was terminated three days after one of facility’s residents died. When Ms. Absher learned that Ms. Mitchell was terminated, she felt she had no other reasonable choice but to resign. In response, the facility allegedly tried to prevent other employers from hiring them. In fact, according to the nurses, the facility even fabricated charges against both women with the Illinois Department of Professional Regulation.

Ms. Absher and Mitchell’s exceptional qui tam attorneys tried the case before a jury, and late Friday, the jury returned a verdict in favor of the nurses and the federal government, finding defendants knowingly provided worthless services to the nursing home residents. The total verdict was over $28 million, and their share in this healthcare fraud skilled nursing facility case will be over $7 million.

More information for whistleblowers is located at the Nolan Auerbach website.

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Annual Report Recaps Florida’s Lucrative War on Medicaid Fraud

by Nolan and Auerbach on January 8, 2013

Florida Agency for Health Care Administration and the Florida Attorney General just released the State’s annual Medicaid Fraud and Abuse Report, which reveals a solid return on investment for recovery efforts. Medicaid is a big issue in Florida – the fourth largest Medicaid program in the country, serving more than 3.3 million people.

Fighting Medicaid fraud makes good financial sense in the State. According to the report, for every $1 spent in fiscal year 2011- ’12 to prevent fraud and abuse or to recover Medicaid funds due to fraud and abuse, Florida gained $6.80.

While Medicaid’s process to terminate prescribing rights of providers who were prescribing suspicious amounts of pill-mill type drugs is going strong. The State recouped nearly $49.7 million, including $44.2 million in overpayments and $5 million in fines and sanctions. In addition, the Agency’s Bureau of Medicaid Program Integrity collected $74.2 million in Medicaid overpayments and the government’s Third Party Liability Unit recovered $148.1 million.

Recouping money from Medicaid fraud and abuse is clearly an important and much-needed money-making initiative for Florida as well as other states. With the strength of the qui tam provisions of the False Claims Act, the amount recovered should increase each year.

According to the report, citizens made the majority of Medicaid fraud complaints in FY 2011-’12, followed by Medicaid recipient and qui tam complaints.

More information for whistleblowers is located at the Nolan Auerbach website.

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Nolan Auerbach Partners Present at National False Claims Act Conference

by Nolan and Auerbach on September 21, 2012

Last week, Nolan Auerbach Partners Marcella Auerbach and Jeb White presented at the Twelfth Annual Taxpayers Against Fraud Education Fund (TAFEF) Conference in Washington, D.C. Mr. White, presenting during the opening session of the conference, provided an overview of the False Claims Act, including an in-depth discussion of the recent legislative amendments. Mr. White was joined by U.S. Department of Justice’s Commercial Litigation Branch Director Daniel Anderson and qui tam attorney Shelley Slade.

Managing Partner Marcella Auerbach moderated a plenary panel discussion on multi-relator issues. Panelists included Assistant United States Attorney Zachary Cuhna, qui tam attorney David Chizewer, and former U.S. Department of Justice Assistant Director Stephen Altman.

This year’s TAFEF Conference was the largest event solely devoted to the False Claims Act. In addition to more than 300 qui tam attorneys, the audience included several attorneys from federal and state governments. Speakers included United States Attorneys, high-ranking Justice Department officials, and leading qui tam practitioners.

More information for whistleblowers is located at the Nolan Auerbach website.

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First Circuit: Statement that Relies on False Data Potentially Triggers FCA Liability

by Nolan and Auerbach on May 16, 2012

The First Circuit has led the change in rejecting the rigid divisions between factual and legal falsity, and express and implied certification, noting that the text of the False Claims Act (FCA) does not make such distinctions.  Specifically, in Hutcheson, the First Circuit declared that such distinctions “may do more to obscure than clarify the issues…” United States ex rel. Hutcheson v. Blackstone Medical, Inc., 647 F.3d 377, 385-86 (1st Cir. 2011). Instead, the First Circuit has taken a broad view of what may constitute “false or fraudulent” statement to avoid “foreclose[ing] FCA liability in situations that Congress intended to fall within the Act’s scope.” Id. at 387 (quoting United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1268 (D.C. Cir. 2010)) (internal quotation marks omitted).

Recently, the First Circuit had an opportunity to apply its renewed reading of “false or fraudulent” statements, in United States ex rel. Jones v. Brigham and Women’s Hospital, No. 10-2301 (1st Cir. May 7, 2012). In this NIH grant case, the defendants allegedly violated the False Claims Act by including false statements in a grant application that was submitted to the NIH. Importantly, at least from the defendants’ point of view, the application did not include the supposed false data that formed the basis of their study proposal.

In reversing the lower court’s decision, the First Circuit ruled that the statements in the grant application were still sufficiently “false” to trigger FCA liability. According to the Court, “Although it is true that the allegedly false [ ] data was not itself included in the Application, that fact is not determinative of the false claim allegation. The statute makes it a violation to ‘use . . . a false record or statement to get a false or fraudulent claim paid or approved by the Government.’ 31 U.SC. § 3729(a)(2).”

In a sense, the underlying false data tainted the subsequent statements in the grant application. The court noted, “These statements rel[ied] on the data challenged by [the Relator] as false. In the language of the FCA, they ‘use[d] . . . a false record.’ Thus premised, the statements would not be ‘true, complete and accurate’ as required by the certifications signed” by the Defendants.

The Court stressed that the relator would still need to clear two other FCA elements—materiality and knowledge. However, the “falsity” element was sufficiently pled, even if the allegations did not neatly fit into an “express certification” or “implied certification” box.

More information for whistleblowers is located at the Nolan & Auerbach, P.A. website.

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