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Whistleblower’s Medicare accusation may go to Supreme Court

One of the country’s largest home health providers has asked the U.S. Supreme Court consider a recent decision that says the company defrauded Medicare to the tune of $35 million.

Marjorie Prather was a registered nurse hired by Tennessee-based Brookdale Senior Living Communities. Prather was hired to review thousands of backlogged Medicare claims.

For each claim, a physician must certify that the patient was eligible for care and that a precise plan of care has been created. This certification must be present at the time of care or “as soon thereafter as possible.”

No sign-off on plans of care

Prather found many physician signatures were missing from the files. When directed to contact doctors to obtain the permissions, Prather said she feared she wasn’t simply following up on the care but was complicit in a scheme to provide unnecessary care and then find doctors willing to retroactively endorse it.

Prather filed suit as a whistleblower in 2012. The suit was dismissed in 2015 for lack of evidence. The case was revived in 2016 and again dismissed in 2017. In June 2018, the 6th Circuit Court of Appeals again revived the suit.

While the 2017 ruling said the recordkeeping was “sloppy,” not fraudulent, the 2018 panel ruled that the timing of when a physician certifies a plan of care went to the “essence of the bargain” between Medicare and providers and was key in stopping fraudulent behavior.

More than just red tape

In the ruling, the panel showed that plans of care are not simply red tape to be negotiated, but firm plans for the care of real people who can be harmed if rules are not followed.

In asking the Supreme Court to rule on the case, Brookdale argues that circuit courts have issued conflicting rulings on the matter. The firm claims it did not have sufficient knowledge of fraud around the issue of physician documentation for plans of care.

Some experts put Medicare fraud at 10 percent of Medicare funds – or about $16.2 billion. The front line against this fraud is whistleblowers who, under the False Claims Act, can bring cases on behalf of the government and claim between 15 percent and 30 percent of the funds recovered.

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