Jennifer Aldrich Civil Deputy Chief District of South Carolina
CAVEAT Anything in these slides or said by the speaker(s) do not represent the position of the Department of Justice or the South Carolina United States Attorney s office Really
Government Remedies Administrative Monetary Penalties Exclusions Criminal Civil
Criminal Enforcement Burden of proof-beyond reasonable doubt Level of intent Conduct a jury thinks is worthy of jail time
Civil vs. Criminal Enforcement
Affirmative Civil Enforcement (ACE)
FALSE CLAIMS ACT During 2014, Department of Justice nationwide had $5.7 billion in settlements and judgments under the False Claims Act $2.3 billion in health care fraud cases This is the fifth year in a row we have had more than $2 billion in just health care fraud
Department of Justice Resources More resources devoted to combatting fraud Our office had two attorneys and two support staff doing this work for 12 years In the past, six years we have increased to six attorneys and four devoted support staff members Our office s experience is not unique
Changes in Health Care Fraud Response with the Government Access to claims data Summary data Data mining Contractors
FALSE CLAIMS ACT Whoever: Knowingly presents, or causes to be presented, to the [government] a false or fraudulent claim for payment or approval; or Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
FALSE CLAIMS ACT Whoever: knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government;
Fraud against the government Medicare Medicaid - 50-75% federal funds v. state funds, varies by state TRICARE Federal Employee Health Care programs
Knowingly and Knowingly the terms knowing and knowingly mean that a person, with respect to information
Knowledge has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the truth or falsity of the information; and require no proof of specific intent to defraud.
More than negligence or mistakes Mistake is most common defense.
Mistakes Mistakes go both ways (over and under payments)
Civil Penalty not less than $5,500.00 and not more than $11,000.00, per claim plus 3 times the amount of damages which the Government sustains
Government Can File Suit Or private citizens can file
Qui Tam Means in the name of the king Whistleblower-relator Files suit under seal and provides only the government with the complaint and all material evidence of fraud against the government
Qui Tam Government investigates and may take over the litigation or may allow the whistleblower s attorney to try the case The whistleblower cannot represent the government unless he/she is or has an attorney
Whistleblower s Award If the Government proceeds with an action whistleblower receives between15% and 25% of the proceeds of the action or settlement of the claim The amount between 15% and 25% depends on the extent to which they substantially contributed to the prosecution of the action. The whistleblower is entitled to costs and attorney fees
If the government declines to take over the action, and allows the whistleblower to continue, he or she can recover up to 30% of the total recovery Must have an attorney to go forward Also retaliation is prohibited and results in more damages to the whistleblower
Who can be a whistleblower Anyone almost Not a former or present member of the armed forces against another member of the armed forces arising out of their service in the armed forces
Who can be a whistleblower Entities can be Whistleblowers: Companies Cities Counties States
State False Claims Acts 29 states and the District of Columbia have their own False Claims Acts Medicaid funds are at least 50% federal funds and up to 74.17% (Mississippi)
Medicare Payments to Nursing Homes Medicare A Medicare A pays for nursing home care for patients who need skilled care; have been discharged from a hospital after a qualifying stay (at least 3 days) Not to exceed 100 days in the benefit period
Medicare Payments to Nursing Homes Medicare A Covers room, meals, nursing care, therapy (physical, occupational, and speech), Social services, medications, supplies, ambulance transports, dietary consulting in a per diem payment
Medicare A (oversimplified) The amount paid is based, in part, on therapy minutes provided each week The more therapy the more money, generally but once a threshold is reached no more payment until you hit the next threshold
Medicare A (oversimplified) 720 minutes or more per week paid on average $559 a day in 2013. (2.4 hours every day for five days a week) 500-719 minutes a week paid on average $445 325-499 minutes a week paid on average $335
Medicare A (oversimplified) So once the patient had 500 minutes, there is no financial incentive to give more unless you give 220 minutes more a week to get to the 720 threshold If you do get to 720 minutes, you have earned approximately $798 more for the care of that patient that week ($114 x 7)
Medicare A Fraud Misrepresenting amount of therapy Adding minutes Doing work that is not therapy Doing more therapy than is warranted Withholding necessary therapy because you have met a threshold Keeping patients in the SNF beyond the needed days up to 100 days NOT DOJ POLICY DOCUMENT
Medicare B If they have exhausted their 100 days or did not have a qualifying hospital stay Fee for covered services Therapy Medications Ambulance Transports
Medicare B Fraud Therapy-Speech, Occupational and Physical Services not provided Services provided but not necessary
Ambulance transports Not necessary Kickbacks-Medicare A transports at a reduced rate which the nursing home pays for out of the per diem payments in exchange for Medicare B transport referrals
Kickbacks for Referrals to the SNF U.S. v. Hebrew Homes Health Network - Florida Settlement in June 2015 for $17 million Alleged to have paid kick backs through medical director fees Whistleblower received $4.25 million
Hospice Pays by per diem rate Must be terminally ill and not expected to live more than six months Can be in a nursing home
Hospice Hospice daily rate GIP - General Inpatient Care Pain control or condition symptoms that cannot be handled in an outpatient setting Short term
Hospice Fraud Hospice eligibility General Inpatient
Schemes in Skilled Nursing Facilities Failure of Care Not just malpractice Clear failure to take care of the resident
Examples from Failure of Care Cases Wound care-maggots in wounds Excessive falls and fractures Impactions Residents lying in their own waste
Examples from Failure of Care Cases Ignoring signs of deterioration Dehydration Malnutrition Setting a tray of food in front of someone who cannot feed themselves is not providing nourishment
Failure of Care Evidence Inadequate staffing Surveys-notice to directors of conditions Patient and family complaints
Failure of Care Department of Justice has settled more than 40 cases Significant injunctions have been obtained Money returned and penalties assessed
Corporate Integrity Agreements Corporate Integrity agreements are key components of settlements Focus on systemic issues Scope is chain-wide
Corporate Integrity Agreements Include requirement for dependent monitors (selected or approved by HHS-OIG) paid for by the nursing home Monitors have extensive access to the facilities, staff, management, records Periodic reports to HHS-OIG required
HHS-OIG HOTLINE 1-800-447-8477 (1-800-HHS-TIPS) HHStips@oig.hhs.gov