The U.S. Supreme Court has rejected a petition to hear a False Claims Act (FCA) and anti-kickback case brought against Georgia-Based Bethany Hospice & Palliative Care LLC.
FCA cases often hinge on the question of patient eligibility for hospice care based on a six-month terminal prognosis, often involving a qui tam complaint.
This occurs when a whistleblower, called a “relator” by the courts, files suit on behalf of the government and possibly receives a portion of any funds recovered by the government via the lawsuit, typically ranging from 15% to 25%.
“Relators claim that their status as ‘corporate insiders’ allowed them to acquire personal knowledge of Bethany Hospice’s allegedly fraudulent activity,” court documents obtained by Hospice News indicated. “Specifically, Relators allege that Bethany Hospice operated an illegal referral scheme in which Bethany Hospice paid doctors in exchange for patient referrals.”
The Eleventh Circuit of the U.S. Court of Appeals rejected the case, citing a lack of specific dates or amounts of alleged improper payments. The claim reportedly also failed to identify any of the patients involved, the court determined.
Following that decision, attorneys for two former Bethany employees in October filed a petition to the nation’s highest court.
The Supreme Court in January asked for comments on the lawsuit from the U.S. Solicitor General, an office within the U.S. Justice Department that supervises litigation involving the federal government. The department later took the position that a Supreme Court review of the Bethany case would be unnecessary.
“With respect to the submission of false claims to the government, the court of appeals began by noting petitioners’ concession that they ‘did not include any details about specific claims submitted to the government,’” attorneys for Bethany Hospice wrote in response to the relators’ Supreme Court petition. “The [appellate] court also noted that despite petitioners generically alleging they had ‘intimate familiarity with and access to’ respondent’s billing system and practices, they ‘fail[ed] to identify even a single, concrete example of a false claim submitted to the government.’”
The Bethany case is the second hospice fraud complaint brought to the Supreme Court’s doorstep this year. In February, the court declined to hear an FCA case involving the hospice provider Care Alternatives. In United States ex rel. Druding v. Care Alternatives, the Third Circuit Court of Appeals ruled that when a reasonable difference of opinion occurs between physicians concerning a hospice patient’s prognosis, it can be resolved by a jury.
In Jan. 2021, the U.S. Department of Treasury reported that enforcement efforts had recovered more than $3 billion during the previous fiscal year from False Claims Act cases. About $2.6 billion of those dollars stemmed from lawsuits involving the health care industry, including hospice organizations.
A Feb. 2021 report from Bass, Barry, and Sims shows that a leading cause of fraud involves hospices billing Medicare for services for which patients were not eligible. This resulted in several multi-million dollar settlements during 2020, with amounts ranging from $1 million to $5.25 million.