Nathan A. Adams IV is a Partner in Holland & Knight's New York office.
In United States ex rel. Lemon v. Nurses to Go Inc., No. 18-20326, 2019 WL 2004353 (5th Cir. May 7, 2019), the court of appeals reversed the district court's conclusion that the relators had alleged mere "laziness, bungled paperwork and mistakes that were corrected" on the part of several hospice organizations not material to Medicare reimbursement and, thus, not in violation of the FCA. The relators, former employees, alleged that the defendants failed to complete and maintain certifications and recertification for hospice patients; failed to complete and maintain physician narratives in support of certifications for hospice patients; allowed nonmedical personnel to complete certifications for hospice patients; allowed nonmedical personnel to complete physician narratives for hospice patients; failed to have required face-to-face encounters between physicians and patients; permitted nurses to conduct required face-to-face encounters with hospice patients instead of a physician or nurse practitioner; completed certifications after the time period required for completion; failed to write individualized plans of care; and billed for and provided services to deceased patients. The court observed that section 1395f(a)(7) of the Medicare statute lists a number of certifications that are "conditions of ... payment for" hospice services, and that "payment for services furnished" may be made "only if" the certification, face-to-face encounter and plan-of-care requirements are made. In addition, Medicare regulations for hospice services state that "to be covered," certifications regarding terminal illness must be completed. Therefore, the court found that defendants' alleged conduct violated conditions of payment and, as evidence that the government would deny payment if it knew of the defendants' false certifications, found that the HHS Office of Inspector General has previously taken enforcement action against hospice providers that have submitted bills for ineligible patients. Last, the court determined that the violations, as alleged, were not minor even though defendants argued that they billed for what they did and did not commit fraud.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
