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Absher v. Momence Meadows Nursing Ctr. – Medicare Fraud and the Potential for Nursing Home Abuse

Two nurses who brought qui tam claims on behalf of the government allege their nursing home employer knowingly submitted thousands of false claims to the Medicare and Medicaid programs have had judgments in their favor reversed by the U.S. Court of Appeals for the Seventh Circuit. Although a jury awarded the government $3 million in compensatory damages, imposed $19 million in fines and awarded the nurses a total of $412,000 for retaliation, the appellate court found the verdict was not supported by the evidence.

It’s unclear whether the government will seek review of that verdict, but we do know that these kinds of accusations arise from situations that occur routinely in nursing homes across the country. Aside from submitting invoices for payment of services never given, nursing home providers sometimes render services to patients that aren’t necessary and, in some situations, could even be harmful. They know patients may not be able to speak on their own behalf, and they also know providing these “services” is lucrative.

In some cases, claims may be submitted for government reimbursement even though the care standard is lacking. That was the basis for the underlying claim in Absher v. Momence Meadows Nursing Ctr., Inc. before the U.S. Court of Appeals for the Seventh Circuit.

If the nursing home provider where your loved one is staying is investigated for Medicaid fraud, it’s worth exploring whether your loved one may have been receiving harmful treatments, medication or therapies he or she did not need. Even absent an investigation, family members have the right to question medications and procedures administered to their loved ones, and it’s especially important if the patient is the recipient of costly medical procedures or expensive medications.

In the Absher case, the subject of the investigation was a 140-bed facility in Illinois, where plaintiff nurses were employed. Almost all residents at the time were supported by either Medicare or Medicaid, with programs reimbursing the facility on a per day basis, meaning the programs paid a flat rate for each resident, as opposed to a reimbursement for specific services provided.

In order to receive payment, the nursing home had to routinely submit patient health status data, certifying all information was correct, as well as adhere to a number of federal and state care standards.

In 2004, two former health workers – one a registered nurse (who was terminated), the other a licensed practical nurse (who resigned) – filed an action alleging the nursing home submitted thousands of false claims to both programs, in violation of the federal False Claims Act. The pair also claimed they were retaliated against with actual and constructive termination upon reporting the fraud.

At trial, our Boca Raton nursing home lawyers understand evidence was presented of numerous instance of non-compliant care and the harm that occurred as a result. Specifically, there was evidence regarding a rampant scabies infection, problems with pest control, poor pressure sore management, and issues with medication, food and water temperatures, overall cleanliness and accident management with regard to falls and patient trust accounts. Evidence was also presented indicating an administrator physically struck a patient. Another time, a patient wandered away from the facility. Another patient was scalded during a bath, and another died as a result of a malfunctioning colostomy bag.

The nurses further alleged administrators actively concealed the extent of non-compliant care from the government, directing employees not to chart pressure ulcers or scabies, or at least to chart symptoms rather than the actual diagnosis. Testimony was also offered indicating the facility was habitually under-staffed and didn’t use proper diapers, pajamas, nightgowns or blankets, yet would boost staffing levels and temporarily use new nightgowns and linens when inspectors were present.

A jury found the facility had submitted 1,730 false claims, and imposed millions in fines, later reduced per the Eighth Amendment’s clause on excessive fines.

The nursing home appealed on several grounds, including the jurisdictional authority of the district court, as well as the fact that the allegations made by the nurses had already been “publicly disclosed” in the sense that they had numerous other violations resulting in government fines dating back to 1998. The appellate court denied these assertions, but did find the qui tam claims failed as a matter of law.

Primarily, this hinged on whether the nursing home violated the FCA by providing “woefully inadequate” or “worthless service” to patients for which it was paid by the government. The appellate court did not find the facts to be supportive of this.

In order to meet this threshold, the district court gave this example: If Uncle Sam pays a facility for $200 worth of services but only receives $120 worth of services, it’s been defrauded out of $80.

However, the appellate court found this example lacking. Per case law, in order to meet the “worthless service” standard, performance has to be so deficient that “for all practical purposes, it is the equivalent of no performance at all.” In other words, just because the care was deficient doesn’t mean it was worthless. Further, the patient status forms submitted to the government for receipt of payment were not, the government found, inherently false, even if the services were lacking.

Therefore, the verdict was vacated with direction to issue summary judgment in favor of defendant.

Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:
Absher v. Momence Meadows Nursing Ctr., Inc., Aug. 20, 2014, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:
Carl v. Muskegon Cnty. – Vetting Nursing Home Staffers, Sept. 10, 2014, Boca Raton Nursing Home Abuse Lawyer Blog

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