Home Healthcare Fraud and the False Claims Act

By William Ellerbe

Home healthcare is a vital service that many Americans rely on. Unfortunately, because of some aspects of the delivery system for home healthcare, and because the patients who receive home healthcare services may be the targets of unscrupulous providers, there is the potential for fraud in home healthcare. Examples of home healthcare fraud that have led to actual cases include:

  • Submitting fake applications for home health services, or exaggerating a patient’s needs for home health services, so that the patient will be qualified for services that he or she has no medical need for;
  • Overbilling the amount of time spent with a patient;
  • Upcoding the kinds of services provided to a patient in the home to increase pay levels;
  • Providers making determinations that patients are “homebound” without ever having seen the patient;
  • Providers creating fake assessments of patients without having actually assessed the patient;
  • Recruiting patients who do not actually need home health services;
  • Offering, receiving, or soliciting kickbacks to providers who will sign off on a patient needing home health services;
  • Adding unjustified (and unperformed) services to a claim for employees’ travel time to patients when travel time cannot be billed;
  • Filing claims for durable medical equipment that is either not actually given to the patient or not medically necessary;
  • Billing for services provided by a provider who was unlicensed at the time; and
  • Billing for services provided to deceased patients

Because, in many cases, home health services are paid for by Medicare or Medicaid, when a provider or company commits a fraud like the ones listed above, it may give rise to a federal or state False Claims Act case. The federal and state False Claims Acts help the government stop fraudulent billing practices by offering an incentive for whistleblowers who are aware of fraud against government health insurance providers (i.e., Medicare and Medicaid) to come forward with evidence of fraud.

If fraudulent conduct is reported and results in a payment by the wrongdoer, the whistleblower is credited for the reporting and becomes eligible for an award of anywhere from 15–30% of the amount the of the government’s recovery (part of which will typically be paid out as attorneys’ fees).

Home healthcare workers, such as nurses and home health aides, can be instrumental in reporting home healthcare fraud because they can be witnesses to fraud, with access to documentation proving fraud. Home healthcare workers also have a natural affinity toward reporting corrupt and fraudulent healthcare practices because of the possibilities of poor patient care and the draining of public funds that could otherwise support the legitimate needs of other patients.

Home Healthcare Whistleblower Risks and Challenges

There are, undeniably, risks and challenges that home healthcare workers who are contemplating becoming whistleblowers might face. For one, home healthcare workers often work in teams, and other team members might be the ones perpetrating the fraud. Even if they are not, other team members might not want to be inconvenienced by the distraction and finger-pointing that can arise in an investigation of workplace fraud.

Additionally, in some communities, the home healthcare/nursing community is fairly small, and a whistleblower might gain a reputation that could impact his or her ability to find alternative employment. Another challenge might that a person wants to come forward as a whistleblower, but because of his or her position, or the nature of the scheme, does not have information or documentation about the actual billing practices.

Documenting Fraud

If home healthcare workers observe medical or billing practices that they believe are fraudulent, they should document as many aspects of these practices as possible, including details on times, dates, and people involved. Special attention should be paid to documenting billing practices. Because there are laws like HIPAA that can apply to these kinds of records, it is recommended that a potential whistleblower consult with a lawyer early in the process.

The  American Nurses Association provides the following advice:

“Seek the counsel of someone you trust outside of the situation to provide you with an objective perspective, and consult with your state nurses association or legal counsel if possible before taking action to determine how best to document your concerns.”

In some situations, it makes sense for a potential whistleblower to work with a co-worker, especially if that co-worker observes the conduct in question from a different department or with a different perspective. For example, a home health nurse who believes that his or her company forces its patients to undergo unnecessary testing might want to work with someone in the billing department who can confirm how these tests are billed, or another home health nurse who can provide a longer timeline for the scheme. One danger, though, is that a co-worker can “out” the potential whistleblower if he or she doesn’t believe there is fraud, or the co-worker can beat the potential whistleblower to the punch and file a suit first.

Contact an Experienced Whistleblower Attorney

Even when the morality and ethics of reporting problematic conduct seems clear, there can be complications in terms of assessing whether particular conduct actually violates any state or federal billing regulations, and there are always concerns about potential retaliation. Reach out to experienced legal counsel to discuss your particular situation and to get help deciding how you want to proceed.

There are three easy ways to contact our firm for a free, confidential evaluation with one of our whistleblower attorneys:

  1. Fill out the contact form on this page.
  2. Email quitam@bm.net
  3. Call (800) 424-6690

Your submission will be reviewed by a Berger Montague qui tam attorney and remain confidential.

click here to speak with a berger montague whistleblower lawyer. the conversation will remain confidential.
By | 2018-08-08T10:50:24+00:00 August 8th, 2018|Healthcare Fraud|