Nursing Home and Hospice Qui Tam Claims

Our California Whistleblower Attorneys Help with Nursing Home and Hospice Qui Tam Claims 

In the context of nursing homes and hospice care, most attention is paid to behavior that could harm patients, such as nursing home abuse and hospice abuse. However, like all organizations, nursing homes and hospices may also commit fraud from time to time, which not only indirectly harms patients but harms the government and society at large. In force since 1863, the False Claims Act provides a legal avenue for individuals to report fraud and waste committed against the government (known as “whistleblowing”) in exchange for a portion of the proceeds the government recovers as a result of the whistleblower’s actions. These actions are known as “qui tam” actions and may be brought against nursing homes and hospices, care facilities, hospitals, or other health and medical care service providers. Our California nursing home whistleblower attorney explains how below.

Types of Nursing Home and Hospice Fraud

Fraud, abuse, and waste in the nursing home and hospice context generally involve behavior designed to exploit Medicare and Medicaid (known as Medi-Cal here in California) for financial gain. This can occur in a variety of ways, such as:

• Billing for services that were not provided
• Billing for appointments patients fail to keep
• Over-billing for services or supplies
• Providing inappropriate or unnecessary medical treatment or admitting a patient to hospice who is not eligible for hospice services
• Retaining hospice patients whose health is improving rather than declining
• Misrepresenting the healthcare professional providing a service (e.g., having an R.N. provide a service rather than a nurse’s assistant to be able to bill more or using an aide but billing at an RN rate)
• Upcoding or improper coding of services and supplies
• Unbundling services into multiple billing codes
• Misrepresenting where the services were provided or using an unapproved facility to provide the care
• Soliciting, receiving, offering, or paying kickbacks to hospitals, physician groups, or nursing homes for referrals
• Failing to conduct patient re-evaluations
• Paying bonuses based on the number of patients admitted

While each individual act of Medicare and Medicaid fraud might not seem like a huge financial loss for the government, it quickly adds up. The Centers for Medicare & Medicaid Services (CMS) estimated that improper Medicare payments in 2019 alone cost the agency almost $30 billion. As a taxpayer-funded government program, fraud against Medicare is a direct theft from the taxpayers of America.

How Qui Tam Claims Work in California

The False Claims Act (FCA) creates liability for any individual who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the federal government or an agency thereof. If found guilty, the defendant may be liable for a civil penalty, plus up to three times the amount of damages the government sustained as a result of the defendant’s actions. Depending upon the amount involved, FCA judgments can involve extraordinarily large sums. California has its own California False Claims Act which works much the same way as the federal act and also rewards whistleblowers who help California recover from wrongdoers under programs like Medi-Cal.

In a qui tam action, the plaintiff sues the defendant on the government’s behalf and is entitled to a portion of the amount of money the government recovers if the suit is successful. Any individual who has information concerning fraud or waste perpetrated against the government may bring a qui tam claim. In most cases, this person will be someone who works for the defendant, such as nursing home or hospice staff, who wants to blow the whistle on illegal conduct being committed by his or her employer.

To begin a qui tam action, the whistleblower (also known as a “relator”) must hire an attorney to file a civil complaint against the defendant with the court, a copy of which is then served on the U.S. Attorney General. The government then has 60 days to investigate the whistleblower’s allegations and decide whether it wants to intervene in the claim. If it chooses to intervene, the Department of Justice (DOJ) will take over the claim from that point forward.

Whistleblower Rewards Your Qui Tam Attorney Can Pursue

If the government decides to intervene in the whistleblower’s claim and successfully obtains a judgment against the defendant, the whistleblower is entitled to a certain percentage of the amount the government recovers — generally up to 25-30%. The amount the whistleblower is entitled to receive depends on how useful his or her information was to the government in securing a judgment. Factors that can increase the percentage of a whistleblower’s share include:

• The whistleblower reported the fraud or waste promptly
• The whistleblower reported the fraud or waste internally or tried to stop it
• The qui tam filing caused the defendant to stop the fraudulent or wasteful practice
• The complaint exposed a nationwide pattern of behavior
• The whistleblower had extensive, first-hand evidence of the fraud or waste
• The whistleblower fully cooperated with the government during the investigation and trial

However, blowing the whistle is not without risk. Many whistleblowers face whistleblower retaliation for their actions, which can have severe consequences for their careers. The law, however, protects you against retaliation and the whistleblower attorneys at Evans Law Firm can also represent you in any wrongful termination or retaliation suit against a nursing home and hospice.  For more information about whistleblower rewards for nursing home and hospice employees — and protections for whistleblowers — please contact a California nursing home whistleblower attorney.

Examples of Qui Tam Actions Against Nursing Homes and Hospice Providers

Nursing home and hospice fraud are much more common than most would believe. Some notable examples include the following:

• In June 2021, California’s second-largest skilled nursing facility operator paid $450,000 to resolve False Claim Act allegations. The operator, Plum Healthcare Group, was accused of creating billing records for services that were not actually provided, which are then used to obtain Medicare reimbursements. The settlement was the result of a False Claims Act lawsuit filed by a former employee. 
• In November 2020, the DOJ settled a qui tam case with Doctor’s Choice Home Care for $5.8 million over allegations that it had provided improper kickbacks to referring physicians through sham medical director agreements and bonuses to physicians’ spouses who were Doctor’s Choice employees. The case’s three whistleblowers received a joint reward of $145,000.
• In August 2020, the DOJ settled with MJHS Hospice for $5.2 million to resolve allegations that it billed Medicare and Medicaid for services rendered to hospice patients at levels of care for which they did not qualify.
• In April 2020, the DOJ settled a qui tam case with Saber Healthcare Group for $10 million over allegations that it had overbilled Medicare for unnecessary therapeutic treatments. The three whistleblowers in the case split a reward of $1.75 million.
• In February 2019, the DOJ settled with Vanguard Healthcare for $18 million to resolve a lawsuit alleging that it had submitted false claims to Medicare and Medicaid for nursing home services that were grossly substandard or worthless.

Retaliation Against Nursing Home and Hospice Whistleblowers 

Taking a stand against fraudulent behavior that poses risks to patients often comes at a cost. Nursing home fraud and abuse typically occur because these behaviors can be lucrative for those who engage in them, and the perpetrators do not want their ill-begotten gains to cease. Most sophisticated employers are also well aware of the potential legal consequences of these behaviors and will go to great lengths to prevent their misdeeds from becoming public. Unfortunately, such efforts at concealment often involve retaliating or threatening to retaliate against employees who management suspects may be onto them. 

Whistleblower retaliation in the nursing home and hospice context can involve: 

• Terminating the whistleblower
• Suspending the whistleblower from his or her normal duties 
• Demoting the whistleblower to a lower-status position
• Increasing the number of patients the whistleblower must care for without a commensurate pay raise 
• Reassigning the whistleblower to care for high-need patients without a commensurate pay raise 
• Transferring the whistleblower to a facility in an inconvenient location 
• Changing the whistleblower’s schedule to less convenient hours (e.g., from the day shift to the night shift) 
• Coercing a potential whistleblower to participate in illegal acts 

It can often be difficult to determine whether a negative employment action constitutes retaliation or is simply the result of an ordinary performance deficiency. However, many employers often allege “performance issues” as a pretext for retaliation. As such, you should consider speaking with a California nursing home whistleblower attorney if you suspect this might be the case. 

Whistleblower Protection for Nursing Home and Hospice Employees in California

Nursing home and hospice whistleblowers are protected from retaliation through various federal and state laws. The False Claims Act is the primary source of protection for whistleblowers under federal law. According to the False Claims Act, employees who bring qui tam actions are protected if they are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee.” Such protection includes various forms of relief, including reinstatement with the same seniority status, two times the amount of back pay, interest on back pay, special damages, and attorneys’ fees. 

Whistleblowers are also protected under the California Labor Code, which prohibits employers from: 

• Making, adopting, or enforcing a rule that prevents an employee from being a whistleblower
• Retaliating against an employee who is a whistleblower
• Retaliating against an employee for refusing to participate in an activity that would result in a violation of a state or federal statute or regulation 
• Retaliating against an employee for having exercised his or her rights as a whistleblower in any former employment

Damages under California whistleblower law include reinstatement of employment and work benefits and lost pay. 

How to Report Nursing Home and Hospice Fraud, Waste, and Abuse in California 

Nursing home and hospice employees who have knowledge that fraud, waste, or abuse is occurring in their facilities have a variety of tools available to them to report such occurrences. The most common way to report fraud is to contact the Inspector General for the federal agency that has been defrauded. For nursing home and hospice employees, that would be the Department of Health and Human Services. In California, such employees could also contact the Attorney General’s whistleblower hotline. If you are considering filing a qui tam action under the False Claims Act, please contact a California nursing home whistleblower attorney, as such actions generally may be filed only by an attorney. 

How a California Nursing Home Whistleblower Attorney Can Help 

Many whistleblower cases, nursing home and hospice qui tam cases included, often are brought under a combination of federal and state laws, as are actions to rectify whistleblower retaliation. These laws are complex, with precise procedural requirements and strict statutes of limitation. Going it alone can be intimidating and possibly even prohibited, depending upon the statute involved. A California nursing home whistleblower attorney can counsel you on the interactions of these laws and help you decide which path would be the best way forward for you. 

Contact a California Nursing Home Whistleblower Attorney for More Information

If you are considering blowing the whistle on your employer, you should consider speaking to an attorney who can help you investigate the situation and file a lawsuit. To get started, please contact a California nursing home whistleblower attorney at the Evans Law firm by using our online form or calling us at 415-441-8669.