Health Law Daily Homebound patients shopping, dining out raise suspicions FCA violations
Tuesday, May 15, 2018

Homebound patients shopping, dining out raise suspicions FCA violations

By Rebecca Mayo, J.D.

Evidence that patients who were able to leave their home for extended periods of time to shop and dine out who were declared as homebound on forms submitted to Medicare for reimbursement of in home patient care services is enough to support claims of violations of the False Claims Act (FCA) (31 U.S.C. §3729 et seq.). After previously dismissing a relator’s FCA claims against Care Plus Home Health Care, Inc. (Care Plus), a court granted leave to amend based on the relator’s proposed amended complaint, allowing the case to move forward (US ex rel. Wagner v. Care Plus Home Health Care, Inc., May 14, 2018, Frizzell, G.).

Background. A registered nurse who was employed by Care Plus as the Office Director of Nursing, claimed that Care Plus’s business practices were designed to fraudulently maximize billing, primarily to Medicare. She alleged that Care Plus continued to provide services to patients who were not eligible for home health services under the Medicare guidelines and billed Medicare for such unnecessary and/or ineligible services. She further alleged that the provider falsified required documentation and medical records to increase Medicare billings and avoid reimbursement of Medicare overpayments.

The nurse filed a quit tam action for presentation of false claims, making or using a false record or statement to cause a false or fraudulent claim to be paid, and making or using a false record or statement to avoid an obligation to pay money to the government. A court dismissed the claims except as they related to allegations that defendants falsified Outcome and Assessment Information Set (OASIS) information or medical records. The relator asked the court for leave to amend the complaint to provide additional supportive factual allegations as to the claims that were dismissed.

False claims. The relator’s proposed amended complaint provided 7 sample patients as cases in which Care Plus billed ineligible Medicare patients for home health benefits. She provided documentation of patients who ambulated independently, including leaving their home for frequent trips to shop or dine out, but were declared as home bound on forms submitted to Medicare. With respect to 4 of the 7 exemplar patients, the proposed amended complaint alleged that Care Plus knew of the patients’ ineligibility when the claims were submitted. The court held that the new allegations cured the previous deficiencies and permitted a reasonable inference that false claims were submitted as part of a fraudulent scheme.

False certification. The proposed amended complaint included new factual allegations regarding the allegedly false statements. The complaint included copies of the forms submitted to Medicare documenting the author of the false statement, the date of the false statement, and the means used. Taking these allegations as true, the court determined that this was sufficient information to cure previous deficiencies and permit a reasonable inference that Care Plus knowingly falsified the documents in order to seek payment from the government.

Reverse false claim. According to the court, the proposed amended complaint contained only a formulaic recitation that Care Plus made false certifications knowingly to conceal or avoid an obligation to pay or transmit money or property to the government. There were no factual allegations that Care Pus owed a specific financial obligation to the government or that documents were falsified to decrease a financial obligation. Therefore, the court found that the proposed amended complaint did not cure the previous deficiencies.

The case is No. 15-CV-260-GKF-JFJ.

Attorneys: James Dennis Young (Morgan & Morgan, PA) for the United States. John David Russell (Gable & Gotwals) for Care Plus Home Health Care, Inc.

Companies: Care Plus Home Health Care, Inc.

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