By Rebecca Mayo, J.D.
Evidence that a physical therapist was recording longer meeting times with patients in his notes than he actually spent with them and not completing treatments was not enough to show that the notes necessarily led to false claims being submitted to the government for payment. A district court judge granted motions to dismiss filed by Blue Ridge Home Health Services for claims alleging that they submitted false Medicare claims, used false records material to false Medicare claims, and used false records to avoid their obligation to repay the government (U.S. ex rel Branscome v. Blue Ridge Home Health Services, Inc., March 13, 2018, Dillon, E.).
Background. A physical therapy assistant who worked for a home health care company claimed that one of the physical therapists was spending less time with patients than he was recording in his notes. Additionally, the physical therapist was not providing the physical therapy treatment that was required and that he was recording that he had done in his notes. The assistant claimed to confront the owner about these discrepancies more than once and then her employment was terminated.
The assistant filed a qui tam action against the company, the owner, and the physical therapist for submitting false claims and for terminating her employment in retaliation for her pursuing the qui tam action. The employer filed a motion to dismiss for failure to state a claim.
False claims. The assistant failed to allege that any false claims had actually been presented to the government for payment and instead insisted that she could show that the employer’s actions necessarily led to the submission of false claims. However, the assistant had no firsthand knowledge of the alleged fraudulent scheme and could not show any explicit connection between the notes and the submission of false claims. Further, the complaint did not allege that any of the listed patients were Medicare beneficiaries. The inadequate physical therapy sessions may have led to submission of false claims, but did not prove that it necessarily led to the submission of false claims.
Due to the lack of sufficient allegations of a necessarily-led-to-submission scheme, the court dismissed the claim that the employers presented or caused to be presented a false or fraudulent claim to the government. Because the assistant failed to show a connection between the notes and the submission of any false claims, the claim that the employers knowing made, used or caused to be made or used, a false record or statement material to a false or fraudulent claim paid by the government also failed and was dismissed.
Reverse false claim. The assistant argued that the employers made a reverse false claim when they falsely accused her of misconduct in statements made to the Virginia Physical Therapy Board (VPTB), knowingly and with the intent to avoid, conceal, and/or decrease their obligation to repay funds to Medicare. However, the complaint failed to make any connection between the physical therapy board and Medicare billing or payment. Additionally, reverse false claims may not be based on the same conduct in the assistant’s other false claims allegations. Therefore the claim was dismissed.
Retaliation. A claim for retaliation must show that the assistant engaged in protected activity that the employer knew about and that the employer took action against her in response. The assistant confronted her employer about the physical therapist’s activities, but did not discuss fraud or billing problems of any kind. The assistant did not allege sufficient facts to show that her conversations rose above the level of general complains to constitute objections regarding fraud and therefore did not show that she was engaged in a protected activity. Further, because the assistant failed to present evidence that fraud or billing was discussed with her employer, there was no evidence that the employer was on notice of her activity. The assistant failed to plausibly allege a prima facie case for retaliation and the claim was dismissed.
The case is No. 7:16cv00087.
Attorneys: Sara Bugbee Winn, U.S. Attorney’s Office, for the United States. Daniel Robert Sullivan (Gentry Locke Rakes & Moore LLP) for Kimberly Branscome. Cameron Scott Bell (Penn Stuart & Eskridge PC) for Blue Ridge Home Health Services, Inc.
Companies: Blue Ridge Home Health Services, Inc.
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