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Cassie Harrington

Cassie Harrington is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, she worked as a legal intern for the International Centre for Missing and Exploited Children, as well as interned for the D.C. Bar Pro Bono Center.

Ms. Harrington obtained her J.D. from The George Washington University Law School in May 2022. In May 2019, she graduated from the University of Notre Dame, where she earned a Bachelor of Arts in Psychology.

Ms. Harrington is licensed to practice law in the District of Columbia.

Report Medicare Fraud for Rewards

What reward is available to Medicare fraud whistleblowers?

To encourage whistleblowers to file lawsuits that expose fraud against Medicare and other government programs, the FCA awards such “relators” up to 30% of any money the government recovers as a result of their litigation.

What is Medicare, anyway? How does Medicare fraud typically work?

Medicare is a government health insurance program for (a) people aged 65 years or above; (b) people below 65 years of age living with certain disabilities; and (c) people of all ages with end-stage renal disease. It includes hospital insurance, medical insurance, and prescription drug coverage.

In the simplest terms, Medicare fraud occurs when healthcare providers bill the government for services or supplies that have not been provided. Such fraud is rampant, costing taxpayers hundreds of billions of dollars each year, according to some estimates.

What are some common fraudulent practices?

If you work in a hospital or medical practice, you may have witnessed one or more of the following illegal activities:

  • Billing for services not delivered, a.k.a. phantom billing: Billing fraud is one of the most common types of Medicare fraud. Examples include X-rays and blood tests that were never taken; home healthcare hours never provided; billing for full dental plates when only partial dentures were supplied; and services that were supposedly rendered to patients who already had left the facility — or even had died.
  • Falsification of patient records: Medical providers may falsify patient records, examinations, and tests to “prove” the necessity of gratuitous surgeries, drug regimens, or treatments. They may convince patients that they are suffering from a potentially life-threatening condition requiring immediate medical attention.
  • Unbundling: This refers to billing separately for services that should actually be combined into one billing. Medicare sets reimbursement rates for certain groups of procedures that should be performed together. Medical providers may unbundle the procedures and bill each component of the group separately to increase profits.
  • Double billing: As the name implies, double billing refers to an attempt by the medical provider to bill the patient, Medicare, or a private insurance company more than once for the same treatment.
  • Kickback fraud: In a quid pro quo agreement, laboratories and pharmaceutical companies may offer kickbacks in the form of money, products, or gifts to medical providers in exchange for referrals. For instance, a pharmaceutical company may bribe doctors or clinics to prescribe its products to patients. A laboratory may offer a commission for every patient the doctor or clinic sends for blood tests or stool cultures.
  • Physician self-referrals: Federal law prohibits physicians from referring patients to facilities where the physician or an immediate family member has a financial interest. Services covered by this statute include clinical laboratory services; home health services; physical and occupational therapy services; radiology and imaging services; and inpatient and outpatient hospital services.
  • Upcoding: The term ‘upcoding’ refers to exaggerating the service that was rendered to a patient. In this case, providers bill for a more expensive service than what was actually delivered. A simple instance of upcoding is billing for an hour-long visit for a seemingly complex medical case when, in fact, the patient’s visit lasted only ten minutes and involved a simple condition like the flu or common cold.
  • Falsification of cost reports: Providers may include personal expenses in their Medicare claims under the guise of actual expenses incurred in the delivery of services to patients. For instance, nursing home operators may add the costs of renovating their own homes in their annual resident care cost reports to Medicare.
  • Off-label marketing of pharmaceuticals: The FDA approves drugs after testing for safety and effectiveness. The approval is only for the specific use for which it has been tested. Pharmaceutical companies that market or promote a drug for a use not approved by the FDA have been held to violate the federal False Claims Act.

What laws govern Medicare fraud and abuse?

Both federal and state statutes may apply to Medicare fraud, which may be treated as both a criminal and a civil matter. The most prominent federal laws that may create liability include:

  • False Claims Act: The civil FCA safeguards the government from being sold or overcharged for items or services. Filing false or fraudulent payment claims to Medicare can attract fines of up to three times the loss incurred by the program. A particular intent to defraud is not necessary in this case; recklessness, ignorance, and actual knowledge are viewed in the same way. The criminal FCA, meanwhile, imposes fines and imprisonment for submitting false claims.
  • Anti-Kickback Statute: Paying for referrals is a crime as far as federal healthcare programs are concerned. The Anti-Kickback Statute forbids paying any form of remuneration to reward patient referrals; here “remuneration” includes cash, meals, hotel stays, rent, and excessive compensation. Entities that offer the kickbacks and those who receive them are both held liable under the statute. Punitive actions include prison time, fines and terminating participation from federal healthcare programs. Federal law also levies civil monetary penalties on physicians who try to influence Medicare beneficiaries to engage their services by offering them remuneration. It is not necessary to prove financial loss to the program or patient harm to demonstrate the violation of the Anti-Kickback Statute.
  • Exclusion Statute: Under this statute, entities and individuals convicted of certain criminal offenses are excluded from participating in all federal healthcare programs. The offenses include (a) Medicaid or Medicare fraud, and other offenses involving delivery of services or items under Medicare or Medicaid; (b) patient neglect or abuse; (c) felony convictions for theft, fraud or other financial misconduct related to healthcare; (d) felony convictions for unlawfully manufacturing, distributing, prescribing or dispensing controlled substances. Excluded physicians cannot bill directly for rendering treatment to Medicare beneficiaries; neither can they bill their services indirectly through a group practice or an employer.
  • Stark Law: The Physician Self-Referral Law, commonly known as the Stark Law, forbids physicians from making referrals for certain Designated  Health Services to an entity in which the physician or an immediate family member has an investment or ownership interest or with which he/she has a compensation arrangement. Penalties for violating the statute include fines and exclusion from participating in all federal healthcare programs.
  • Civil Monetary Penalties (CMPs). These may apply to a variety of conduct, and based on the type of violation, different penalty amounts may be imposed. The penalties range from $10,000 to $50,000 per violation. Some examples of CMP violations include presenting a claim for a product/service not provided, violating the Anti-Kickback statute, and presenting a claim for a product/service for which payment may not be made.

How do I report Medicare fraud?

Anyone can report fraud directly to the U.S. government by going to the Department of Health and Human Services’ OIG Hotline Web page. Alternatively, you can call 1-800-447-8477. These avenues are valid for reporting any kind of Medicare fraud, including fraud by individual Medicare recipients.

If you have direct evidence of a large, ongoing fraud, you may become eligible for a substantial reward by filing a whistleblower lawsuit on behalf of the government under the False Claims Act. To qualify as a Medicare whistleblower, you must be the original source of information not known to the government or public. You should have no part in planning, initiating or participating in the fraud being reported. Medicare fraud cases can be quite complex. Changing laws and regulations concerning Medicare further complicate issues. The legal services of a whistleblower attorney can be invaluable in building a successful healthcare fraud case.

 

Ethan McSweeny

Ethan McSweeny is an evening student at American University Washington College of Law where he serves on the Executive Board of the Alternative Dispute Resolution Honor Society. He expects to graduate in 2025. Prior to joining The Employment Law Group® law firm, Mr. McSweeny was a professional theatre director whose work was recognized with Drama Desk, Helen Hayes, Outer Critics Circle, Irish Times, and Tony awards and nominations. In addition to his freelance work as a director, Mr. McSweeny managed numerous arts producing organizations and served as a trustee of the national labor union representing stage directors and choreographers.

Mr. McSweeny graduated from Columbia University with the first degree in Theatre and Dramatic Arts conferred by the University.

Justices Seem Unlikely to Shake Up FCA Dismissal Rules

By R. Scott Oswald

Most disputes under the False Claims Act (FCA) arise between opposing parties — so yesterday’s arguments before the U.S. Supreme Court in U.S. ex rel. Polansky v. Executive Health Resources, Inc. were notable for pitting government prosecutors against a whistleblower who wants to recover $1 billion or more for the government.

More unusual still: Both parties on the government’s side of the “v” pushed uncompromising legal positions that were diametrically opposed to each other, with the defendant left to root for U.S. prosecutors who say they’ll stop pursuing its alleged fraud.

Based on oral arguments, the justices seem likely to split the difference on the legal question — an outcome that would end the current case and avoid any major upheaval in the high-stakes FCA landscape.

The Legal Framework

The FCA, originally signed into law by President Abraham Lincoln in 1863, makes it illegal to defraud the federal government. The law includes a “qui tam” provision that allows whistleblowers to file a complaint on behalf of the government and — if they prevail — to receive a portion of any resulting settlement or judgment.

Originally such whistleblowers, known as relators, could pursue a qui tam case without any prospect of government involvement. Starting in 1943, however, an amendment allowed the government to intervene at the start of an FCA case. In 1986 a further amendment allowed the government to intervene for “good cause” in later stages, too, even if it had originally declined to get involved.

At issue in Polansky: After an initial declination, can the government later jump in solely to dismiss a case that the relator may have spent years pursuing — and if it can, under what conditions?

The parties staked out extreme positions on the scope of the government’s statutory dismissal power, which is laid out in the FCA at 31 U.S.C. § 3730(c)(2)(A) and can be exercised over a relator’s objections.

Arguing for the Justice Department, Frederick Liu, assistant to the solicitor general, said the U.S. can opt to dismiss an FCA relator’s case under (c)(2)(A) at any time for almost any reason, without needing first to intervene, subject only to guardrails provided by the U.S. Constitution.

Arguing for the relator, Daniel L. Geyser of Haynes and Boone said the government has just a single shot to dismiss a case, at the time of its initial decision to intervene — and that if the U.S. opts to intervene later, it has forfeited not only its (c)(2)(A) dismissal power but also its right to control the litigation.

Many FCA practitioners and appellate courts shy away from both absolutes, as did the U.S. Court of Appeals for the Third Circuit in this case: It held that the government must intervene in order to act after a declination, showing good cause, but that it then retains its right to (c)(2)(A) dismissal.

Based on their questioning today, the justices will likely end up in broadly similar territory.

Constitutional Considerations

Mr. Geyser went first, arguing on behalf of a doctor who claimed that Executive Health Resources (EHR), his former employer, had enabled hospitals to overcharge Medicare by hundreds of millions of dollars. About five years after prosecutors originally declined to intervene, the government changed its mind as Polansky neared summary judgment, claiming that the case had become onerous and seeking dismissal after the relator’s lawyers had already invested about $20 million in fees and costs.

Such a late hit, said Mr. Geyser, was not only unfair but disallowed by the text of the FCA.

Justice Clarence Thomas asked the first question, setting a tone by pursuing a theory offered by EHR, the defendant, that the FCA’s qui tam provisions would become unconstitutional under a separation-of-powers argument if the executive branch didn’t always retain the right to control, and to dismiss, an action brought in its name.

Several other conservative justices echoed the concern, which Mr. Geyser dismissed as unfounded — as did Mr. Liu after him, in a rare show of agreement — but which got enough traction to make the relator’s primary argument seem untenable.

Liberal justices meanwhile reached the same conclusion based on statutory history, not constitutional analysis: Justice Ketanji Brown Jackson, for instance, cited the 1943 and 1986 amendments to conclude that Congress was “pretty clear” in its wish to allow the government to re-insert itself into qui tam cases “if things had changed.”

And “what’s the purpose of a [late] intervention, then, if they can’t then take over the action?” she asked — drawing prompt agreement from Justice Amy Coney Barrett on the other side of the bench.

Whatever the legal logic, literally no justice seemed ready to deprive the government of its (c)(2)(A) dismissal power after an initial declination. The key issue then became, What procedure is required to exercise that power?

As argued, the question had two main components. First, must the government intervene before moving for dismissal? And second, under what circumstances — if any — can a court deny the government’s dismissal motion?

In Search of a Standard

The FCA says that the United States must show good cause to intervene after it has initially declined a primary role in the case. The text is murkier on whether intervention is required for a late-stage dismissal, which under (c)(2)(A) has no explicit standard for denial but requires notice and a “hearing” where the relator can be heard.

Mr. Geyser, evidently beaten on his primary argument, argued his backup position that the government must first intervene if it wants to kill a lawsuit — and that it must prove “something” before it can prevail on a motion to dismiss, although he conceded that the “something” wasn’t particularly clear.

“As the Seventh Circuit said” in a related case, he said, “courts don’t have hearings just to serve coffee and donuts while the parties gather together.”

Led by Justice Sonia Sotomayor, however, several justices seemed to endorse the idea that just requiring the U.S. to intervene could do the lifting here.

The government can move to intervene for the purpose of a (c)(2)(A) dismissal, she suggested, and the FCA’s text provides a good-cause standard for such a motion — a legal scaffolding similar to that offered in an amicus brief by the relator-friendly Taxpayers Against Fraud Education Fund.

“Isn’t … the question that simple?” she asked. “The government [comes] in and [says] we want to intervene because we think we have to dismiss now?”

A combined motion for intervention and dismissal might work, Mr. Geyser allowed, as long as the government were obliged to explain “why it didn’t intervene earlier.”

Justice Jackson agreed, especially in light of the relator’s interest in a share of any prospective settlement or jury award, which would be extinguished by a dismissal.

“It would seem to me that ‘good cause’ does the work of ensuring that the [relator’s] property interest … is taken into account … and the government can’t just come back in willy-nilly,” she said.

Mr. Liu, meanwhile, countered that the government shouldn’t need to intervene at all, and that the only check on its dismissal is constitutional.

“If the whole point of our motion is to end the case,” he said, “then there simply is no reason to put us through the hurdle of intervening beforehand.”

Justice Brett Kavanaugh, at least, seemed sympathetic to an unchecked right of dismissal. To Mr. Geyser, for instance, he expressed doubt about any requirement for the United States “to prove to a court that it has some basis for dismissing [its] own case. … I think the court’s interfering with the … executive’s ability to control the suit. That’s an Article II concern, it seems to me.”

Even Justice Thomas, however, appeared to believe that a court needs to require some showing to overcome a relator’s potential loss.

“If [the government] can unilaterally dismiss,” he asked Mr. Liu, “how can you square that” with protecting the relator’s property interest? Mr. Liu’s answer, as before, was that the Constitution provides some protection — though he conceded that it’s “not a very rigorous baseline.”

Arguing for EHR, Mark W. Mosier of Covington & Burling took the lectern toward the end of the session to elaborate on his constitutional concerns with Mr. Geyser’s primary argument, which was mostly a dead letter by the time he spoke. He didn’t draw many questions.

On balance, it seemed clear that the justices would allow the government to pursue (c)(2)(A) dismissals even after an initial decision not to intervene — but that they’d also articulate some standard to protect the property interests of relators. Requiring intervention seemed like the simplest path to a unanimous, or near-unanimous opinion.

Regardless of the details, such an outcome is unlikely to disturb the status quo in FCA litigation: The government will remain the power broker when it comes to dismissal of qui tam suits — and its (c)(2)(A) determination is unlikely to fail scrutiny except in the most unusual circumstances.

And what of the relator who, as here, has “spent a ton of money” litigating an FCA case that is belatedly dismissed, asked Justice Samuel Alito.

“It’s just too bad for the relator?” he asked Mr. Liu.

“It is too bad,” replied Mr. Liu. “Every relator brings these suits knowing that’s a possibility.”

———-

R. Scott Oswald is an FCA litigator and managing principal of The Employment Law Group, P.C.

Disclosure: The author is a member of the Taxpayers Against Fraud Education Fund, which submitted an amicus brief in the Polansky case. He was not involved in the production of the brief.

(Note: This article has been edited slightly from the version published by Law360, and carries a different headline.)

You’ve been laid off — now what? Here are 3 steps to take if you lose your job

CNBC spoke with TELG’s Kellee Boulais Kruse about how you can protect yourself if you’ve been laid off by your employer. Tips include brushing up on employment law to make sure you haven’t been illegally fired and negotiating your severance offer.

Layoffs at tech giants Twitter and Meta this week have affected thousands — and they’re just the latest examples in a downsizing trend that was already taking place across the industry.

The news has put a spotlight on what rights employees have in mass layoff situations. While the laws around workforce reductions vary by location and employer size, there are steps anyone can take to help cope with being let go.

[….]

In mass layoff situations for larger firms, companies that fulfill certain criteria are required by federal law to provide employees 60 days’ notice. The WARN Act is meant to provide workers with sufficient time to seek other employment or retraining opportunities before losing their jobs.

While employees can be fired for any reason, they can’t be let go for an illegal reason. “I sometimes see layoffs of one person,” said Kellee Boulais Kruse, a principal at The Employment Law Group, based in Washington, D.C. ”That’s pretty suspicious.”

Florida health care firm agrees to $7M settlement over Medicare claims

A 91-year-old Florida man with a shoulder injury and dementia wasn’t benefiting from repeated physical therapy sessions, the man’s therapist told his boss.

But Carter Healthcare continued sending a therapist to the man’s home and billing a federal government benefits program even though the man’s wife refused the treatment, according to a complaint filed in federal court.

In another case, Carter Healthcare fired occupational therapist Sharon Mahaffey after she refused to recommend more treatment for a patient whom she considered healed, the complaint states.

Earlier this month, the U.S. Department of Justice announced that Carter Healthcare will pay $7.1 million to resolve allegations that it overbilled for home care therapy paid by Medicare and gave unneeded medical treatment to patients across Florida.

>> View full story on the Tampa Bay Times

 

[ADDITIONAL COVERAGE]

Government rewards two local therapists who blew the whistle on Carter Healthcare

From TCPalm (October 25, 2022)

Two therapists in Vero Beach and Melbourne who claim they were fired after blowing the whistle on their former healthcare employer will pocket a portion of a multi-million-dollar settlement announced last week by the U.S. Department of Justice.

Oklahoma City-based Carter Healthcare and two of its top officers paid more than $7 million to settle a lawsuit filed by the two whistleblowers who claimed that affiliates of the home-health provider defrauded Medicare by pushing therapy services for Florida seniors without regard to medical need, according to attorneys representing the therapists.

>> View full story on TCPalm