Millions of senior Americans live in nursing homes across the country, some of which are well run, but many others are so poorly run that the residents are severely malnourished, lacking in basic care, sustaining bleeding skin ulcers and some are dying in squalor. The Department of Justice, recognizing this fact, is supporting and engaging some cases against the worst nursing home operators, under The False Claims Act, which allows individuals with information about fraudulent billing and certification to the Government to file a claim and seek the Governments investigation. Recently, a Federal Judge in Pennsylvania decided a Motion To Dismiss in favor of the Government in the case of United States v American Health, et al. Eastern District of Pennsylvania 22-cv-02344.
The Defendants sought to dismiss the case saying that the Medicare reimbursement requests they submitted were not false under the worthless service doctrine and not material, absent proof that the Government denies reimbursements on similar circumstances. The allegations described severely unsafe and unsanitary physical environment and a undersized, untrained staff in the nursing home. The Complaint alleged that the facility failed to follow doctors orders for follow up treatment, including dental care, medication administration, oxygen provision, wound dressing, cardiac monitoring and dialysis. It also asserted that the staff frequently left residents unattended, forgot to feed them, did not provide showers, did not change their clothing or bed sheets and left residents in their own urine.. In addition, the Complaint alleged that the home lacked activities for the residents and they were seen sitting in the common areas with their heads on the table and nothing to do.
The Court denied the Motion To Dismiss, saying it must go forward saying that if the allegations are taken as true, which is the standard for a Motion To Dismiss, it demonstrates that the Defendants rendered grossly negligent and therefore worthless services. The opinion says that the falsity requirement can also be met by “implied false certification” and the defendants falsely affirmed they were in compliance with federal regulations required to received Medicare reimbursement. Nursing homes must submit a special form for each resident in which it provides an assessment of each resident’s health and formulates a care [lan. 42 C.F.R. sec 483.315(e). The drafter of this MDS form must certify that he or she “may be personally subject to or may subject his or her organization to substantial criminal, civil or other administrative penalties for submitting false information.” The Judge noted that it is “incumbent on nursing homes submitting Medicare and MEdicaid claims to comply withthe NHRA-found at 42 U.S.. Sec. 1395i-3(a) to (h) and Sec. 1396r(a) to (h) and its implementing regulations found in 42 C.F.R sections 483.1-483.95. These regulations are vast and the Government outlines them thoroughly in its complaint.”
This decision and the case that underlies it have real life implications to millions of nursing home residents living their golden years in nursing homes across the country. The False Claims Act is one of the few law which can help to change the behaviors of nursing home owners and equity companies that are purchasing these facilities.
The Judge also stated “Defendants’ alleged noncompliance was so severe that a reasonable person could not conclude it would not have affected the Government’s willingness to reimburse Defendants under the relevant common sense and holistic inquiry….In short, a nursing home mist generally’ care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.‘ 42 U.S.C. sec 1395i-3(b)(1)(A).
Jeffrey Newman is a whistleblower lawyer handling cases under the False Claims Act (FCA) and he can be reached at 617-823-3217 or at Jeff@JeffNewmanLaw.com.
