The False Claims Act makes it illegal to bill the U.S. government under false pretenses — for instance, by seeking Medicare reimbursement for unneeded or misrepresented care at a nursing home. The law provides a financial incentive for whistleblowers to report such wrongdoing by filing a lawsuit on behalf of taxpayers. This "qui tam" provision allows prevailing plaintiffs to receive up to 30 percent of the money returned to U.S. coffers.
If a whistleblower gets fired for reporting fraud, or suffers other retaliation, the FCA calls for the harm be reversed entirely: Successful plaintiffs can get their jobs back — and may get damages including attorney fees and payment for emotional distress.
As with all legal claims, deadlines are crucial. If you have been punished for drawing attention to shady behavior at a nursing facility, you must file a retaliation claim under the FCA within three years. The statute of limitations for the underlying fraud generally is six years under the FCA — or 10 years in a few situations. Other laws, including some relevant state laws, may demand faster action.
Can nursing home whistleblowers get a reward?
Yes. As an inducement for people to expose fraud against programs such as Medicare, the False Claims Act allows whistleblowers to receive up to 30 percent of any money the U.S. government recovers as a result of their lawsuit. Since many elderly patients are Medicare beneficiaries — and since the federal government is mobilized against exactly this sort of wrongdoing — the FCA is a powerful tool for elder-care whistleblowers. Depending on your state, other rewards statutes may also apply.
Please note, however, that the government generally supports FCA lawsuits only where they are filed by people who can provide concrete evidence of a relatively large or especially harmful scheme. Smaller scale claims — particularly those made by or on behalf of individual Medicare recipients — generally are not pursued under the FCA, and are unlikely to generate a reward.
What counts as Medicare fraud at a nursing home? How about Medicaid fraud?
Medicare is a government health insurance program that’s mostly for older people. It generally doesn’t cover “custodial” care, which is care needed for daily living — bathing, dressing, using the bathroom, eating, and the like. It does cover necessary medical care and supplies that may be used at a nursing home or an assisted living facility.
In brief, a Medicare claim is likely fraudulent if the facility asks to be reimbursed by taxpayers for services that weren’t delivered, that weren’t necessary, that weren’t delivered in the way described, that weren’t delivered by an approved provider, or that otherwise weren’t delivered under proper circumstances.
Medicare also covers certain care that’s delivered in an inpatient “skilled nursing facility” or SNF, which is a facility that has been certified as such by Medicare. SNF coverage is fairly generous and includes most aspects of a patient’s stay, including a semi-private room, physical and/or occupational therapy, speech-language pathology services, meals, social services, medications, medical equipment and supplies, and ambulance transportation if necessary.
SNF care may be covered for up to 100 days when a person is admitted following a qualifying hospital stay (3 or more days as an inpatient) and a doctor has ordered such care. Treatment must start within 30 days of leaving the hospital and cover the same conditions for which a patient was initially hospitalized or any new conditions that a patient develops during the SNF stay. After the initial benefit period ends, a patient must have another 3-day qualifying hospital stay in order to meet the Medicare requirements for another 100-day benefit period.
Facilities can’t legally claim reimbursement for SNF care if they aren’t properly certified or haven’t met these admission criteria; such claims would likely count as Medicare fraud.
Medicaid, meanwhile, is a joint federal and state program that helps with medical costs for some people with limited income and resources. If a patient qualifies for both Medicare and Medicaid, then most of their health care costs are covered. Many patients who enter a nursing home will “spend down” their assets and become eligible for Medicaid over the course of their stay.
In addition to all the same fraud seen with Medicare, therefore, a facility may be liable for Medicaid fraud if it misrepresents its patients’ eligibility for taxpayer help.
What are some specific examples of nursing home fraud?
If you work in a nursing home, assisted living facility, or skilled nursing facility, you may have witnessed some of these practices:
- False certification: A claim may be considered false if it is submitted based on a materially false certification — a doctor’s certification that the patient qualifies for SNF care, for instance. Additionally, because a Medicare SNF benefit period can end if the patient hasn’t received care in at least 60 days, staff may falsify treatment plans or prescribe unnecessary testing or medication simply to keep patients in the facility.
- Kickbacks: Some skilled nursing facilities, nursing homes or assisted living facilities may offer money, gifts, or other favors to doctors or others who refer lucrative patients to their facilities. All reimbursement claims that arise from such a kickback may be considered fraudulent.
- Billing fraud: Some SNFs and nursing homes bill for services they did not deliver, such as physical or occupational therapy services, or for equipment or supplies that weren’t used; or they bill for higher levels of care than they delivered, a practice known as upcoding. Such practices are illegal.
- Fraudulent treatment plans: Some facilities may falsify patient records to justify unneeded services such as stronger painkilling regimes — even if a patient is showing no discomfort.
- Negligent or abusive care: A skilled nursing facility or nursing home’s claims for reimbursement may be considered fraudulent if it isn’t providing diligent care overall — or worse, if it is abusing patients. The use of physical restraints on patients, a failure to administer medications as prescribed, a failure to provide infection control, a failure to prevent pressure ulcers, and a failure to meet basic nutrition and hygiene requirements, all have been found to be violations of the False Claims Act, for example.
- Self-referrals: Some doctors may have an ownership stake in a skilled nursing home facility, nursing home, or assisted living facility — or one of their family members may have a stake. This is legal, but such doctors aren’t allowed to refer their own patients to these facilities, because it is a conflict of interest.
How do I report nursing home fraud to the government?
If you’re aware of individual examples of Medicare fraud but don’t have concrete evidence of a broader scheme (via insider knowledge of billing fraud, for instance), it’s likely best to call the government directly at 1-800-MEDICARE; to submit a complaint to the HHS Office of Inspector General; or to get help from the Senior Medicare Patrol in your state.
If you are a healthcare worker who knows about serious nursing home fraud — or if you have faced retaliation in connection with such fraud — you may want to file a whistleblower lawsuit under the False Claims Act, a state equivalent, or both. There are strict standards for such suits: You must supply important information that the government doesn’t already know, for example, and you shouldn’t be a participant in the fraud yourself. You will need a lawyer to help you.
Blowing the whistle on fraud at a nursing home, SNF, or assisted living facility isn’t a simple matter. If you’d like to have an experienced law firm on your side, please contact us.
