NURSING HOME FRAUD
Whistleblower cases against nursing homes traditionally occur due to Medicare or Medicaid fraud. Recently, a major nursing home chain in Florida, Consulate Health Care, was held liable for committing massive fraud in operating several Florida nursing homes by “upcoding” therapy bills for payment by Medicare.
Upcoding bills can result in Medicare making payments to the nursing home for services that are (1) not provided at all, or (2) that are not accurate in terms of the actual therapy provided.
The case was brought in the Middle District of Florida and was a 20 day trial. The whistleblower claim was initiated by Angela Ruckh, a registered nurse who works as a consultant at two Consulate-managed skilled nursing facilities. Several nursing homes were found responsible for defrauding Medicare by violating the False Claims Act.
The amount of the judgment in favor of Ms. Ruckh was $347 million. The reason the judgment was so high is that the False Claims Act mandates a tripling of the actual Medicare and Medicaid damages found by the jury, which in this case was $115 million, along with a minimum statutory penalty of $5,500 for each of the 446 cited false claim submissions.
The whistleblower’s share of the settlement has not yet been determined but is likely to be significant as a whistle-blower generally receives 15 percent to 25 percent of the total recovery, plus attorney’s fees.
Also of significance, the federal government declined to intervene in Ruckh’s lawsuit in 2012, which resulted in her continuing to pursue the allegations by herself with her lawyers. Similar whistleblower lawsuits involving nursing homes in Florida are occurring as well, and in some instances, can result in federal criminal charges.
DECEPTIVE TRADE PRACTICES: MISLEADING CONSUMERS
Deceptive Trade Practices is slightly different than a whistleblower claim although it also usually also involves an element of fraud. Rather than the “whistleblower” (e.g. a current or former employee of the facility) pursuing the claim, a deceptive trade practices case is usually brought by the consumer who was actually harmed by the fraud.
In Florida, there are several laws in place that try and protect consumers from unfair business acts or practices. A deceptive practice is one that is “likely to mislead” consumers. Where we see this occur in the context of Florida nursing homes or assisted living facilities in Florida is when a facility advertises and/or represents to consumers and the public that it will provide certain services and level of care at the facility but fails to meet those representations. Essentially, the nursing home or assisted living facility is deceiving and misleading the consumer to pay them for services that are not being delivered.
Therefore, pay close attention to the marketing materials and other items the nursing home or assisted living facility gives to you and your family members which induces you to choose them and make financial payments to them, either by way of cash or through Medicare or Medicaid.
If the care and level of services being advertised are not being provided, there may be possible grounds for claiming the nursing home or assisted living facility is engaging in deceptive trade practices.