Tag Archives: Medicaid

A Golden Ticket: The Effects of Long Term Care Regulations on False Claims Act Cases

On January 11, 2018, Judge Steven Merryday, United States District Court judge for the Middle District of Florida, vacated a False Claims Act (“FCA”) judgment for $350 million against 53 nursing facilities.1  The purported FCA violation was for failure to maintain comprehensive care plans and other documentation as required by Centers for Medicare and Medicaid Services (“CMS”) regulations. The whistleblower’s claim relied on the implied false certification theory endorsed by the U.S. Supreme Court in Escobar.2  What the whistleblower did not contemplate was Judge Merryday’s astute materiality and scienter analysis.  Importantly, Judge Merryday’s analysis illustrates a workaround for long term …

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A Trend in 2017: Use of the False Claims Act for Malpractice Cases in Long Term Care

Multi-million dollar settlements in False Claims Act (FCA) cases against long term care (LTC) facilities made headlines several times in 2017.  I have blogged several times on the FCA and could not allow this trend to go without comment. We all know that the purpose of the FCA is to penalize government contractors that submit false claims for reimbursement to government programs.  The penalty is triggered when anyone “knowingly presents or causes to be presented a false or fraudulent claim for payment or approval” or “knowingly makes, uses or causes to be made or used a false record or statement …

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False Claims Act: Employment Claims

This third blog on the False Claims Act is a wakeup call to long term care facilities and management companies (“LTCs”) in their training and employment practices.  It is well-known that LTCs have high employee turnover and difficulty finding applicants, especially for certified nursing assistants (“CNAs”).  In response, many LTCs operate in-house training programs to cultivate a pool of qualified CNAs for hiring.  Here’s the rub: LTCs can be sued under the False Claims Act (“FCA”) for providing services through unqualified or underqualified employees and seeking reimbursement for those services. In the U.S. Supreme Court’s Universal Health Services, Inc. v. …

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Fourth Circuit Punts the Statistical Sampling Issue Back to the Trial Court

The January 17, 2017 blog identified how the False Claims Act (FCA) can be used to secure significant recoveries by a statistical sampling method.   Statistical sampling is applied when a whistleblower claims that Medicare and Medicaid reimbursement requests are fraudulent.  The statistical sampling feature occurs when a few cases of reimbursements for either care not provided or care outside of the resident’s medical needs (the sampling) are applied to an entire skilled care chain.  This method allows plaintiffs to avoid proving whether each case of fraudulent reimbursement is indeed fraudulent.  Typically, the cases serving as the sample are the best …

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False Claims Act: How it is Being Applied and Misapplied in Long Term Care Cases

The False Claims Act (FCA) allows a whistleblower, called a relator, to sue for false statements made in connection with requests for payment to the government. For long term care facilities (LTCs), this typically arises in the Medicare and Medicaid reimbursement context.  The false claims could be submitting reimbursement requests for care not provided or care not required.  A claim may also arise when valid reimbursement requests are made, but the facility certifies, when submitting the paperwork, that it has complied with all regulatory requirements and, in fact, it has not.  Intent to defraud is not required, but the facility …

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