The Department of Justice s Focus on Failure of Care Fraud Cases

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1 The Department of Justice s Focus on Failure of Care Fraud Cases HCCA 17 TH ANNUAL COMPLIANCE INSTITUTE WASHINGTON, DC APRIL 21, 2013 SUSAN C. LYNCH, ESQ. U.S. DEPARTMENT OF JUSTICE SUSAN.LYNCH@USDOJ.GOV Opinions Expressed Herein or Otherwise are those of the Speaker and do not Necessarily Reflect the Views of the U.S. Department of Justice. 1

2 Agenda Role of DOJ and USAOs in Failure of Care Enforcement Legal Authorities Remedies Settlements Overuse of Antipsychotics Why does the Department of Justice Focus on these Cases? The United States is not getting what it pays for. Cases typically involve harm, suffering and sometimes death for frail residents. Abuse and neglect cost the Medicare and Medicaid programs billions. It s our job to enforce the relevant laws. 2

3 Federal Enforcement of Failure of Care Fraud Cases Enforcement priority DOJ and US Attorney s Offices HHS Office of Inspector General State and local prosecutors Pursue criminal, civil and administrative cases Federal Prosecution Options Criminal Federal Health Care Fraud, Wire Fraud, Etc. Civil False Claims Act, 31 U.S.C Civil Rights of Institutionalized Persons Act, 28 U.S.C Common Law Breach of Contract Common Law Fraud Equitable Claims Unjust enrichment 3

4 Federal Civil False Claims Act (FCA) 31 U.S.C Any person who: Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; or Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim Is liable for treble damages and penalties of $5,500 to $11,000 per false claim. False Claims Act (continued) 8 FCA Defines Knowingly as: Having Actual Knowledge, or Acting in Deliberate Ignorance or Reckless Disregard of the Truth or Falsity of the Information Submitted in Support of the Claim. FCA not intended for mere negligence. 4

5 Billing for Worthless Services = Fraud Providers who: knowingly render grossly substandard care or no care at all, that harms or kills frail patients, (not a required element, but usually present), and bill Medicare or Medicaid for the alleged care, can be pursued under the False Claims Act. The United States has Brought Cases against the following Providers: Nursing Facilities Assisted Living Facilities (ALFs) Board and care or adult care homes Psychiatric and Acute Care Hospitals Group homes for people with intellectual or mental disabilities 5

6 The United States Prosecution of Failure of Care Cases Systemic Facility or Chain Problems Clear Failures of Care and Violations of Law that have Led to Egregious Outcomes Serious Injury or Death Not a Necessary Element for Criminal or Civil Liability Types of Cases DOJ Does NOT Pursue DOJ does not... Bring malpractice cases But malpractice cases are not a bar to government cases Bring administrative cases to enforce survey results (such cases are pursued by state survey agencies and CMS) But survey findings may be some evidence in an enforcement matter 6

7 Failure of Care Examples Wound care - maggots in wounds Excessive falls and fractures Impacted feces Residents lying in their own waste Dehydration and malnutrition Excessive medication errors Chronic staff shortages FCA Failure of Care Settlements Approximately 40 settled cases with long term care providers Significant quality of care injunctive relief and/or HHS-OIG compliance obligations imposed Monetary awards 7

8 Remedies in FCA cases Money damages Monitoring and other injunctive relief HHS-OIG remedies (Corporate Integrity Agreements (CIA), exclusion) HHS-OIG Corporate Integrity Agreements Do not replace CMS or state survey Focus on systemic issues, internal quality assurance and improvement mechanisms Chain-wide (often multi-state) approach Facility, corporate and regional visits Meetings with corporate boards Periodic reports to OIG and provider 8

9 CIA Quality of Care Monitor Key provision in all quality of care CIAs. Provider pays for an outside monitor appointed by the OIG. Monitor has extensive access to facilities, residents, staff, corporate management, and records. Monitor plays oversight/consultative role. Examples of Settlements Cathedral Rock (ED MO 2010) $1 million in criminal fines and penalties $628,000 in civil damages and penalties Forced sale of facilities Five year CIA 9

10 Examples of Settlements AHM Management Co. (ED MO 2005) $1,250,000 damages and penalties Exclusion of individual owner and entities Criminal plea by owner Chestercare (ED PA) Consent Decree $400,000 civil damages and penalties Temporary manager and independent monitor Exclusion of owner National Partnership to Improve Dementia Care CMS Developed a National Partnership to improve dementia care and optimize behavioral health CMS hopes to reduce unnecessary antipsychotic medication use in nursing homes and eventually other care settings 10

11 CMS Partnership First Year Goals Reduce national prevalence rates of antipsychotic medication use in long-stay nursing home residents by 15% by the end of 2012 In December 2011, the national rate in long-stay residents was 23.9% (based on MDS data) The denominator will include all residents except those with schizophrenia, Tourette s, or Huntington s Disease Antipsychotic Medication in Nursing Homes High Prevalence rates of antipsychotic medication use in nursing home residents has been reported in residents with a diagnosis of dementia According to the CMS Quality Measures/Quality Indicator reports between July and September 2010, 39% of nursing home residents nation-wide who had cognitive impairment and behavioral issues but no diagnosis of psychosis received antipsychotic medication 11

12 Antipsychotic Medication in Nursing Homes Antipsychotic medication can be dangerous and has significant side effects for the elderly Use of antipsychotic medication can be expensive for consumers and for Medicare; atypical antipsychotic medication costs more than $13B in 2007, which is nearly 5% of all US drug expenditures Partnerships and state-based coalitions CMS has engaged three different partnerships and stakeholder to address antipsychotics in nursing homes National Partnership to Improve Dementia Care Work Through the Quality Improvement Organizations (QIOs) Local Area Network for Excellence (LANEs) 12

13 The Survey Process Surveyors will be looking more intensively at persons with dementia on antipsychotics Surveyors will look for systematic processes that providers and practitioners are using to determine the underlying cause of behaviors in persons with dementia Surveyors will look to see that care plans include plans for residents with dementia that address behaviors, include input from residents to the extent possible, and/or family or representatives, and that those plans are carried out The Survey Process (continued) For those residents for whom antipsychotics or other medications are warranted, the lowest possible dose for the shortest duration should be used Surveyors will be looking at whether medications prescribed by a practitioner in an urgent situation are re-evaluated by the primary care team and discontinued when possible 13

14 Public Reporting Rates of antipsychotic medication use by facilities became available on Nursing Home Compare beginning in July Conclusion Failure of Care Cases Present Important Issues for All Parties DOJ Involved at both Civil and Criminal Levels Involvement only where Necessary 14