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Nursing Home Whistleblowers and Qui Tam Cases

The False Claims Act is the government’s primary tool in addressing the misuse of taxpayer funds. Since 2017, the U.S. Department of Justice recovered approximately $11.4 billion under the False Claims Act.[1] Of the $11.4 billion recovered over the past four years, approximately 90 percent or $9 billion was recovered in health care fraud matters.[2]

Qui tam cases continued to serve as the predominant source of False Claims Act recoveries, accounting for approximately 80 percent of the Department’s collections since 2017.[3]  And over that timeframe, qui tam relators (i.e. whistleblowers) received more than $1.54 billion as their share of these returns.[4]

In March of 2020, the Justice Department launched the National Nursing Home Initiative. The intent in launching the program is to pursue nursing homes providing grossly substandard care. Such care includes:

  • poor infection control protocols;
  • inadequate nourishment of residents;
  • providing incorrect pain medication; and
  • billing for medically unnecessary treatment and upcoded billing for services.

Nursing homes incur False Claims Act liability for these issues under the false certifications theory. When a nursing home submits claim for payment to the government, such as for Medicare, Medicaid, or Tricare, the nursing home certifies compliance with all applicable statutes, regulations, and rules.

Whistleblowers play a key role in False Claims Act enforcement. Of note in Virginia, seven former employees of companies acquired by Genesis Healthcare LLC, including one facility located in Arlington, Virginia, blew the whistle on false claims submitted to the government.[5] The whistleblowers received an award in excess of $9 million.[6] The allegations included insufficient staffing levels, upbilling for services, billing of ineligible hospice services, providing therapy longer than medical necessary, and billing for medically unnecessary or grossly substandard services.

As attorneys who deal with wrongful death cases against nursing homes, the lawyers at Frith & Ellerman are well versed in the systemic issues facing the nursing home industry. We have written at length about how there is no minimum staffing requirement for Virginia nursing homes. We have seen firsthand the significant harm that results to nursing home residents and their loved ones when poor care is provided.

 

 

[1] Remarks of Deputy Assistant Attorney General Michael D. Granston at the ABA Civil False Claims Act and Qui Tam Enforcement Institute. U. S. Dep’t of Justice (Dec. 2, 2020). Available at https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act.

[2] Id.

[3] Id.

[4] Id.

[5] Arlington Nursing Home Agrees Pay $600,000 to Settle False Claim Act Violations. U.S. Dep’t of Justice (Dec. 23, 2015) Available at https://www.justice.gov/usao-edva/pr/arlington-nursing-home-agrees-pay-600000-settle-false-claim-act-violations; An Overview of Nursing Home Fraud: False Claims Act Cases from the Last Three Years. Fighting Fraud on the Government (Feb. 4, 2019) Available at https://www.whistleblowersattorneys.com/blogs-whistleblowerblog,nursing-home-fraud.

[6] Id. at Overview.

 

Bo Frith