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Improper or Inadequate Staffing is Medicare Fraud

Did you know that Medicare publishes ratings of nursing homes? They are free and available online. You can see a numerical rating of the facility as well as key data on recent inspections, staffing and health and safety issues. Some states also publish inspections data.

Improper or Inadequate Staffing is Medicare Fraud

Medicare publishes these nursing home ratings in the hopes that families will do comparison shopping before selecting a long term care facility.

In this post we will highlight one particular facility - the Grace Healthcare of Tucker, Georgia nursing home - and how these ratings impact on Medicare and Medicaid fraud.

Recently a jury ordered the Georgia nursing home, which was rated one star or “much below average”, to pay $1.8 million to the family of a 70-year-old woman who fell from her bed and suffered a traumatic brain injury. The woman died 31 days later although jurors said that wasn’t related to her fall.

Jurors found the for profit Grace Healthcare liable for the injuries suffered by Christine Mitchell in 2015. Ms. Mitchell suffered a brain injury after an aide rolled her off the bed. She fell from the bed and hit her head on the hard floor. The aide was trying to turn the woman over by herself when the accident occurred.

Medicare Says Grace Healthcare Tucker Has Poor Safety Record

Christine Mitchell’s fall was preventable. Two staff members should be present when turning over a patient in bed, especially if side rails are not in place

Nursing home best practices and many state regulations require two people to turn patients in a bed. On the day of Ms. Mitchell’s fall the facility was understaffed meaning one aide tried to do the job by herself. She failed.

According to Medicare, the lack of proper care afforded Christine was not an isolated incident. The facility got the lowest rating possible (1 out of 5 stars) for staffing, quality measures and health inspection ratings.

Ms. Mitchell died shortly after falling out of bed in 2015. Grace Healthcare’s most recent inspection was June 15, 2018. The inspector found that out of a sample of 25 residents, the facility failed to provide a safe, clean and comfortable environment for five of those residents.

One of those five residents broke both feet in separate incidents caused by an aide running over the patient’s foot with a wheelchair.

According the inspector’s report, “R#37 was being pushed in a wheel chair on 2/26/18 by the Occupational Therapist (OT) when the resident's left foot was run over by the wheel of the [wheel chair]. This resulted in a right displaced fibula. Review of an undated incident report which included the physician and family were notified on 5/15/18 noted, Resident #37 was being pushed to her room in a [wheel chair on 5/14/18 by the facility transporter. Resident #37's right foot was ran over by the wheel of the w/c which resulted in a right non-displaced Bimalleolar ankle fracture.”

In 2015, a different Grace Healthcare facility was investigated after an anonymous tip about a patient death. The death followed a 2013 fine by Medicare against the facility for quality of care issues.

Four years after Ms. Mitchell’s death, the facility is rated “much below average.”

Staffing Problems and Medicare Fraud

Accidents happen. Although issues such as bed sores and falls are mostly preventable, no nursing home facility is perfect and sometimes an outbreak of the flu or poor weather conditions can cause a temporary staffing issue.

Under the federal False Claims Act and many state Medicaid fraud laws, it unlawful for a person to knowingly make a “false or fraudulent” claim to the government for payment of Medicare or Medicaid funds.

In the typical False Claims Act Medicare fraud case, prosecutors pursue claims against nursing homes that submit bills for services that were not provided, were medically unnecessary or bills for services or items that are included in the facility’s per diem rate. Within the last decade, however, we are seeing cases where prosecutors are using the law to include billing for services where patients received substandard care.

Substandard care, of course, is often connected with inadequate staffing, staffing with unqualified workers, poor staff training or all of the above.

When a nursing home wants to get paid by Medicare or Medicaid, it must certify that it is in compliance with all laws, rules and regulations regarding the provision of quality of care and safety. This includes state laws (many states regulate staff ratios and training) as well as compliance with the Nursing Home Reform Act (“NHRA”).

The law sets minimum quality of life and quality of care requirements that long term care facilities must meet in order to participate in the Medicare and Medicaid programs. For example, that law requires a “skilled nursing facility must provide services to attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident…”

Let’s revisit Grace Healthcare. In 2013, the company settled Justice Department fraud claims and paid $2.7 million, plus interest, to resolve allegations that they violated the False Claims Act by knowingly submitting or causing the submission to the Medicare and Medicaid programs of false claims for “medically unreasonable and unnecessary rehabilitation therapy”.  That was a deliberate fraud but is the company at risk again, this time for quality of care issues?

Prosecutors say substandard care cases are more difficult but not impossible to prove. One of the first cases to use inadequate staffing and chronic poor care as a basis to establish liability under the False Claims Act took place about a decade ago in Pennsylvania.

The Justice Department prosecuted Willowcrest Nursing Home and Willow Terrace at Germantown (“Willowcrest”) for providing inadequate services.

Willowcrest settled and agreed to a fine of $305,072. The company also agreed to hire a full-time physician assistant or nurse practitioner and undergo onsite monitoring for three years.

False Claims Act - Best Tool for Prosecuting Medicare Fraud

The False Claims Act allows ordinary healthcare workers with inside information about fraud to file a claim in the name of the United States. Twenty-nine states have similar laws for Medicaid fraud.

These claims are initially investigated by the government. Ultimately the government can take over and prosecute, clear the provider of any wrongdoing or allow the whistleblower’s counsel to prosecute. If the claim is ultimately successful, the whistleblower obtains between 15% and 30% of whatever the government collects. Because the law allows triple damages and high penalties, large whistleblower rewards are common.

The government can also impose corporate integrity agreements like what was done with Willowcrest. These assure that neglect is addressed and that patients receive proper care.

A California nursing home company was fined $3.8 million under the False Claim Act, once again for substandard care. The company also had to implement a robust compliance program and hire an outside monitor.

In announcing the settlement, officials said:

“It’s outrageous when nursing home owners accept Medicare and Medicaid money to care for vulnerable nursing home residents and in return provide care so lacking in quality and compassion it shocks the senses. This case demonstrates our continued commitment to investigate, and hold accountable, individuals and organizations seeking to victimize the elderly through the misuse of taxpayer funded Medicare and Medi-Cal programs.”

Nursing home patients are often vulnerable and near the end of their life. These people deserve quality care. They shouldn’t be neglected because the facility won’t hire enough qualified staff or provide proper training.

It’s not just the feds that are prosecuting. In 2014 the Attorney General of New Mexico brought a Medicaid fraud complaint against Preferred Care (Plano, TX) for providing inadequate services. The state claimed that the company “limited the number of CAN [certified nurse assistant] staff on duty . . . and rendered the facilities incapable of delivering the Basic Care that residents needed. The profound difference between the amount of services that Defendants promised and claimed to provide and the amount of services that the Defendant Nursing Facilities could have provided is at the heart of this case.”

If you are a past or present healthcare worker has “original source” (inside) information about chronic understaffing, poor quality care or other serious violations of state or Medicare rules, contact us. We can help assure your information gets into the right hands. Not interested in a reward, you can also report your concerns to the Medicare fraud hotline at 1-800-MEDICARE. Remember, calling the Medicare hotline does not qualify you for a cash reward or give you all the whistleblower protections and anti-retaliation provisions of the False Claims Act. Contact us directly if you would like to learn more. You can reach an operator by calling 888.742.7248 or by filling out our confidential online form.

All inquiries are kept in strict confidence.

Medicaid Fraud Hotline: 888.742.7248 or Report Online
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