[Post Updated through 2019] Whistleblowers play a critical role in the fight against rising healthcare costs. The biggest area of fraud – one that costs the government billions of dollars in fraud annually – is the Medicare program. Because Medicare is subsidized with tax dollars, healthcare providers that bill for unnecessary or poor quality services hurt everyone. One area where fraud is particularly rampant is in nursing homes and assisted living facilities.
ProPublica and Frontline recently did an expose on the poor care received by some senior living facility patients. What they found came as no shock to us. Poor quality care is rampant. Although ProPublica’s investigation focused on quality of care issues, healthcare fraud and patient abuse often go hand in hand.
Emeritis & “Heads on beds”
A case in point is their story about a healthcare company called Emeritus. Most states require a medical evaluation before a patient can be admitted to a skilled nursing facility. The law is to insure that only people who meet the facility’s criteria are admitted.
According to the story as reported by Pro Publica, in 2008 Emeritus commenced a program called “No Barriers to Sales.” The concept was simple, place as many people as possible into their facilities. They say that a company vice president sent an email to employees directing that “SALES and your commitment to sales” was to become employees’ top priority. In the words of the company’s quality control manager, the goal was to “put heads on beds”.
One former facility manager claimed the company’s new priority was to make as much money as possible. Some claim that the policy resulted in people too sick or unstable being placed in assisted living. Unfortunately, these facilities generally lack the trained medical personnel and high level of supervision of nursing homes.
According to the story, one patient was admitted to a Napa, California without a medical examination and subsequently died. The Emeritis facility allowed a 57-year-old woman with an eating disorder, depression, bipolar disorder and a history of suicide attempts to move into the facility. Shortly thereafter, the woman taped a “do not disturb” note to her door and then committed suicide, overdosing on an amalgam of prescription painkillers.
ProPublica says the “state’s investigation into the death was scathing: the woman should never have been allowed to move in; the staff had missed or ignored bulimic episodes and her obvious weight loss; no plan of care was ever developed or implemented despite the resident’s profound psychological problems.”
One of the whistleblowers who complained about problems in the company was apparently terminated for “poor performance” (a common tactic by businesses with something to hide).
It’s unclear what happened with the fired whistleblower (the company apparently settled on confidential terms) and whether any violations by Emeritus were isolated or part of widespread fraud. The company denied the allegations.
The point of the story is that whistleblowers play a pivotal role in stamping out fraud and misuse of Medicare and Medicaid monies. By doing so, they may also save lives and improve care. (Medicare and Medicaid won’t pay for assisted living facilities but private insurance sometimes does. Illinois and California have whistleblower reward statutes that include fraud involving private insurance.)
Fear of retaliation keeps many whistleblowers from coming forward. (Many of the people we speak to come forward after they are fired.) Federal and most states have enacted whistleblower protection laws that force companies to rehire or compensate wrongfully terminated whistleblowers.
Concerned healthcare workers have a potent anti fraud tool at the disposal, the federal False Claims Act. Under that law, whistleblowers are entitled to an award of up to 30% of whatever the government collects from the people committing the fraud. With much of nursing home care paid by Medicare, a company that falsely bills or unnecessarily fills bed with clients who don’t meet proper medical criteria may wind up repaying millions to the government.
To earn an award, whistleblowers must have original source information and must be able to show a loss to government funds or a government-funded program. That typically means the facility must be a skilled nursing or memory care facility. Assisted living facilities aren’t eligible for Medicare or Medicaid meaning no government funds are at risk.
The False Claims Act process starts when the whistleblower files a complaint under seal in the federal court.
Since this post was originally written, there have been two successful prosecutions of Emeritis Corporation / Emeritis Corp and Emeritis Senior Living. We are aware of three False Claims Act prosecutions against the company as well as a Health and Human Services civil monetary penalty action.
Emeritis is now owned by Brookdale Senior Living, itself no stranger to enforcement actions.
How to Report Medicare Fraud and Collect a Reward
If you wish to become a whistleblower and have inside, non-public information about fraud against the government or involving federally funded programs, give us a call. We represent whistleblowers and help them stop fraud and collect the largest award possible. We also urge you to visit our Medicare fraud whistleblower reward information page. (If you or a loved one was injured or died in a nursing home because of poor care, visit our sister nursing home abuse and neglect site.
Mahany Law – America’s Whistleblower Recovery Lawyers. Offices in Milwaukee, Wisconsin; Tampa, Florida; San Antonio, Texas and Detroit, Michigan. Services available nationwide.
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