George Breen, Chair of the firm’s National Health Care and Life Sciences Practice Steering Committee, in the Washington, DC, office, was quoted in an article titled “2013 Settlements Show Greater Emphasis on Fraud and Abuse Actions.”
Following is an excerpt:
Some of the notable false claims settlements include the following:
- In February, a jury in federal court in Illinois found that a nursing home fraudulently billed Medicare and Medicaid for “worthless services.” The court awarded $28 million in damages to the government.
- In March, a nursing home company agreed to a $2.7 million settlement for alleged False Claims Act violations for “medically unnecessary and unreasonable physical therapy services.”
- In July, a health system and a hospital, which manages long-term acute care hospitals in multiple states, paid $8 million to settle false claims allegations, in which the facility allegedly kept patients hospitalized beyond the time considered to be medically necessary.
There are two interesting takeaways to these cases that provide unique insight into the risks that SNFs face, says George Breen. The first is that they all involve whistleblowers, all of whom will receive substantial rewards.
“When you see a whistleblower making $2.1 million, there is very plainly a financial incentive involved for someone to file these cases because they can make a significant recovery,” Breen says.
Secondly, these cases show the government’s willingness to make judgments about care decisions, particularly regarding patient treatment “beyond what is medically necessary.”
“It shows that in the long-term care arena, you’re having the government getting into the minds of the physician and healthcare providers about what is appropriate medical care,” Breen says. “It is getting the government into the role of medical decision-making and what is or is not appropriate for that particular patient. The government is effectively saying, ‘We know better than the provider does in terms of the amount and kind of care the patient is receiving.’ “
Because the recent cases have included claims against facilities for going “beyond what is medically necessary,” it’s important that SNFs place even more emphasis on documenting their clinical decisions, especially in instances where a beneficiary is receiving above and beyond the norm.
“You need to make sure that your documentation is such that your medical decision-making can be justified,” Breen says. “That doesn’t mean someone won’t have a different opinion; what it means is you need to be prepared to say, ‘This is the medical basis for the decisions we made for this patient in this case.'”
SNFs should also recognize that if they discover serious allegations of false claims through their own internal audits, it may be beneficial to self-report so they aren’t faced with the threat of whistleblowers further down the road. “If you identify problems, one way to try to make sure you’re not going to have an issue down the road is to self-report, if, in fact, you have a problem,” Breen says.