By Vanessa M. Cross, J.D., LL.M.
A relator’s qui tam action survived a motion for summary judgment filed by defendant Lawrence Memorial Hospital (LMH) challenging her complaint which asserted that LMH violated the False Claims Act (FCA) by knowingly presenting, or caused to be presented, a false or fraudulent claim for payment or approval to CMS. A federal district court in Kansas ruled that a genuine dispute as to material facts exists and precluded entry of summary judgment (U.S. ex rel. Duffy v. Lawrence Memorial Hospital, July 7, 2017, Crow, S.).
Arrival times. The relator brought an action against LMH under the FCA asserting that it submitted false data to its Hospital Value Based Purchasing (HVBP) system for reimbursement by CMS for medical care given to Medicare and Medicaid patients. Based on data submitted through the HVBP system, certain incentive payments are granted to care providers who meet certain medical treatment goals. The relator asserts that incentive payments were received by LMH based on its submission of false patient-care data through the HVBP, such as a patient’s emergency room arrival time, triage time and EKG time, which impacts the HVBP metrics used for incentive payments.
As a participant in the Medicare and Medicaid program, LHM reports patient care information to CMS quarterly for its Inpatient Quality Reporting (IQR) and Outpatient Quality Reporting (OQR) programs. This data is abstracted from patient charts using CMS "Specification Manuals" designed for IQR and OQR programs. The Specification Manuals define and describes the data that must be submitted. Medical record documentation must be dated, timed, and authenticated, according to the manuals. According to CMS’s General Abstraction Guidelines, when abstracting data from medical records "[t]he medical record must be abstracted as documented, (i.e., taken at ‘face value’) and events not documented in the medical records should not be abstracted and reported."
The Specification Manuals provide that emergency department records and outpatient records should be examined to determine the "arrival time." The manual requires that hospitals use the earliest emergency department document in a patient’s medical record to determine a patient’s arrival time. The court noted that CMS defines "arrival time" in the Specification Manuals as "the earliest documented time (military time) the patient arrived" at the hospital. The earliest emergency department documentation in the patient’s medical record should be used to determine the patient’s arrival time, according to the manual. "Emergency Department documentation" is broadly defined to include such documents as vital sign records, registration forms, triage records, EKG reports, face sheets and consent for treatment forms. In its motion for summary judgment regarding the "arrival time" of chest pain patients, LMH argued that the relator could not prove that it submitted an objectively false claim for payment or used a false record to do so. The court found that the evidence indicated that certain emergency department documents were knowingly destroyed, altered, or disregarded by LMH to create a false implication as to the earliest documented time of arrival, creating a material issue of fact as to whether a false record was used to support a false claim for payment.
FCA written policies. The relator alleged the FCA was violated by LMH because of its non-compliance with Section 6032 of the Deficit Reduction Act (DRA) (42 U.S.C. § 1396a(68)) which requires that entities receiving annual payments of at least $5,000,000 from a Medicaid program to establish written policies for employees that give detailed information about the FCA, administrative remedies for false claims, state laws pertaining to false claims, and whistleblower protections under such laws. Upon review of the record before the court, it found it reasonable to conclude that LMH had not provided detailed FCA information as required by the DRA. Thus, the court rejected LMH’s argument for summary judgment on this claim.
Reverse false claim. The relator alleged that LMH violated the FCA provision that prohibits using a false record or statement to conceal or improperly avoid an obligation to return an overpayment of money to the government, pursuant to Section 3729(a)(1)(G)—the so-called "reverse false claim." LMH argued for summary judgment alleging that the relator had not identified a sum of money that LMH owes the government which it has avoided paying. In response, the relator contends that LMH was ineligible for any pay-for-reporting payments during years when it falsely certified the accuracy and completeness of the OQR data submitted to CMS. The court did not find sufficient grounds to grant summary judgment against this claim.
Pleading materiality. LMH argued that summary judgment was warranted because the relator could not prove that the alleged falsehood communicated by LMH was material to it receiving payments from CMS. The court noted that "material" is defined by Section 3729(b)(4) of the FCA as "having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property." In rejecting this argument, the court looked to the influence that "arrival time" data had on the HVBP system in determining the amount of CMS payments received by LMH. Using a holistic approach to determine materiality, the court concluded that upon the record, a material issue of fact existed as to whether false data or omitted data which misrepresented "arrival times" was material to claims for money by LMH.
The case is No. 14-2256-SAC-TJJ.
Attorneys: Robin R. Anderson, U.S. Attorney's Office, for the United States. Andrew R. Ramirez (Lathrop & Gage, LLP) for Lawrence Memorial Hospital.
Companies: Lawrence Memorial Hospital
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