This is insight from Carolyn McNiven, a partner in DLA Piper’s Health Care Enforcement and Compliance Practice.
The government’s intervention in a whistleblower’s federal False Claims Act case in Alabama(United States ex. Rel Dawn Richardson et al v. Golden Gate Ancillary LLC et al., 09 cv 627, ND Ala.) – which was recently made public – signals that the government has jumped into the deep end feet first in its self-proclaimed effort to combat fraud in the hospice context. What remains to be seen is how successful these efforts will ultimately be.
In this case, the government alleges that Golden Gate Ancillary LLC (doing business as Aseracare Hospice) misspent millions of Medicare dollars by admitting and billing for Medicare beneficiaries whom the company well-knew were not terminally ill and did not otherwise qualify for this expensive end-of life care, and consequently caused the submission of numerous false claims to the federal government for unnecessary health care services.. One of the complaint’s allegations is that although hospice care is limited to patients with a prognosis of six months or less to live, several of the defendant’s hospice patients in fact lived longer than six months and some were well enough to be released back to skilled nursing facilities.
On first glance, these allegations are not particularly different distinctive from those levied in other Flase Claims Act cases. However, when you stop and consider the government’s assertions more carefully – with an eye to what they will ultimately be proving – a key distinction emerges.
End-of-life care is materially different. Why? One reason is that everyone deals with end-of-life on some level – either in terms of contemplating their own death (and thinking about how they want to be treated) or in terms of dealing with dying loved ones. As the recent furor over alleged federal death panels in the context of the health care reform debates made clear, absolutely no one, regardless of their political views, thinks it is a good idea for the government to determine who can live and die in terms of the provision of health care services.
This emotional, almost visceral, reaction to the suggestion of government involvement in such a personal issue illustrates what the government is likely to encounter in these cases. To prevail, the government will have to prove that some individuals got end-of-life care to which they were not entitled, or put another way, care that was just too expensive.
The problem for the government, however, is that expensive end-of-life care is something that most people want for themselves and undoubtedly hope to provide for their loved ones. No one really wants the government telling them that they cannot have it or that their relatives do not qualify.
Second guessing end-of-life decisions of doctors and well-meaning relatives is not something that a jury or judge will do lightly. Nor are these decisions akin to the kinds of decisions involved in more routine False Claims Act cases – such as whether a doctor cut toe nails but billed for surgery. Those kinds of cases are unemotional and, relatively speaking, can be fairly black and white.
Any hospice defendant worth its salt can produce grieving relatives of former (now deceased) hospice residents who will be prepared to testify about how wonderful the doctors and nurses were at XYZ company to their relative during the last days of their lives.
Evidence that patients who were in care lived beyond the expected 6 months and even were released back to Skilled Nursing Facilities is also a double-edged sword. While one conclusion from this sort of evidence could be that the patient did not qualify for hospice in the first place, another equally plausible explanation is that the patient received such good care in the hospice setting that they became stable or improved. Thus, a logical defense (which does not even need to be explicitly mentioned) is that the government believes a false claim was filed because a hospice provided such good care that its nurses and doctors extended a dying patient’s life. What relative wouldn’t be thrilled that their dying relative recovered or lived longer than expected?
In the Golden Gate case, the government appears to try to blunt this emotional reaction by teeing up an emotional argument of its own: Medicare is paid for by US taxpayers so you, members of the jury, are subsidizing unnecessary care. Indeed, a reference to citizens (a/k/a jurors) paying for Medicare appears repeatedly in the government’s complaint in intervention.
There is nothing subtle about this strategy. What remains to be seen is whether it works. Second guessing end-of-life care — including its necessity — is hard business fraught with shades of grey. That being said, neither party can be confident of the outcome: as the old adage goes, there is nothing certain except death and taxes. This case, of course, has both.