There are a number of key issues that will drive the government's enforcement efforts in the coming year and that will have a significant impact on how healthcare fraud matters are pursued by relators asserting FCA claims and are defended on behalf of healthcare providers. In the coming weeks, we will examine these issues in greater depth and why healthcare providers should keep a close eye on these issues. This week, we examine the government’s continued enforcement focus on long-term care providers.
The previous year saw the continued trend of an increasing number of FCA cases based on the theory that long-term care services (e.g., skilled nursing, home health, or hospice) provided to patients were medically unnecessary, and therefore, the healthcare provider submitted false claims in connection with those services. See, e.g., U.S. ex rel. Hayward v. SavaSeniorCare, LLC, No. 3:11-cv-0821 (M.D. Tenn.), United States' Consolidated Complaint in Intervention (Oct. 26, 2015); U.S. ex rel. HCR ManorCare, Inc., No. 1:09-cv-00013 (E.D. Va.), United States' Consolidated Complaint in Intervention (April 10, 2015).
The falsity alleged in these cases often turns on contentious reviews of medical records by experts, with the parties arguing over whether proof of an objective falsehood necessary to establish falsity exists. In many cases, however, relators and/or the government attempt to establish the intent required to support an FCA violation (actual knowledge, deliberate ignorance or reckless disregard) not based upon any particular patient's medical records, but rather from other business records of the defendant. These records might include budgets or benchmarking relative to future services, or the tracking of performance across a larger population of patients to allow for comparison against prior forecasts.
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Bass, Berry & Sims' Inside the FCA blog features news, commentary and thought leadership covering FCA, healthcare fraud and procurement fraud.