Episode 53

Nursing Homes Overbilling Medicare, Qui Tam, and Whistleblower Protections

 

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The content for this podcast is provided for general informational and entertainment purposes only and is not intended as legal advice. The content of this podcast does not establish an attorney-client relationship between the hosts or the guest and the general audience. If you need specific legal advice for your legal matter, please contact an attorney in your area.

This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Will Smith of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to episode 53 of the Nursing Home Abuse Pocast. My name is Rob Schenk.

Smith: And I’m Will Smith.

Schenk: And we are trial lawyers practicing in the areas of nursing home abuse and neglect in the state of Georgia and your co-hosts for this podcast. As this goes to air, it is January 29th, 2018, and I guess at this point, I will officially be 40 years old.

Smith: Oh my God. So old. So old.

Schenk: 40.

Smith: I’m still in my 30s.

Schenk: I remember – it’s so crazy. I remember being in college and I think maybe I was 20 or 21, and we had this dude that hung out, like he was part of the crew or whatever, and I think he was one of those where he went to the military and he came back – I don’t know what his deal was, but he was 26. And I remember being like, “What are you doing, guy? You might as well be my grandfather. You’re 26. What’s going on?” And then when I graduated, I was in a band for a while, and we used to play a lot of shows – gosh, this is crazy to think about this, how your perception of age changes – we used to play shows with this other band, and the drummer for the other band was 30, and we called his Grandma – 30 years old.

Smith: In the military, it’s especially pronounce because you’re enlisted and you’re 18 or 19, and you look at this captain who’s like 30 and you’re just like, “How old are your kids?17 or 18? Oh, your kinds must be my age.” And now I look at 30-year-olds and I’m just like, “You don’t know – you’re 30 years old. I’m 40.” And I remember how 40-year-olds used to look at my head, and it’s nothing – I don’t know, I think 40 is the new 30. We’re getting younger and less mature.

Schenk: That’s what the old people say. That’s what 40-year-olds say.

Smith: Yeah, yeah.

Schenk: Some interesting thought-provoking issues in the podcast today – we’re going to be talking about issues with regard to nursing home facilities overbilling the government and what employees of nursing homes can do and what happens to them if they report these abuses.

The first story that we’re going to talk about comes out of Alpharetta – not Alpharetta, Georgia. There’s an Alpharetta everywhere. Is that in the Bible?

Smith: No, it’s not in the Bible.

Schenk: Is that Greek? No. It’s Greek. It’s got to be Greek.

Smith: Yeah, it’s got to be Greek.

Schenk: Like Philadelphia’s in the Bible.

Smith: Sparta – yeah, with the church of Philadelphia in Ephesians.

Schenk: Yeah, that’s the only American state capital that’s mentioned in the Bible. That’s a trivia.

Smith: Yeah, well it’s the only name that happens to be also a state capital. Cleary they’re not talking about the city of brotherly love.

Schenk: Yeah.

Smith: In Ephesians, they’re called the Church of Philadelphia.

Schenk: Okay. So all right. So this is strange too – all right, here we go. So this was what was confusing to me. It’s because it’s a Georgia couple, Julie and Douglas Mittleider have agreed to pay 1.2 million to settle allegations they billed Medicare/Medicaid for worthless services at multiple nursing homes they owned and operated. The Justice Department says the couple has four years to pay the settlement with the first installment due next year. The Mittleiders have owned and operated over 30 nursing home facilities in several states, including Georgia, and this comes out of Alpharetta, Mississippi – including Mississippi, but have repeatedly met with accusations of substandard care, inadequate staffing and theft. And of the complaints made of the multiple nursing homes that this husband and wife operate, we have – what do you call it?

Smith: Save the best one for last.

Schenk: Okay, so what do you call it? Infestation of roaches?

Smith: Yeah.

Schenk: Infestation of rodents, ants and snakes. One snake – is this the one you were talking about? Which one is the one you were talking about?

Smith: What do you think is the worst thing that you read in this article? I would say when there was a snake in somebody’s bed, even though I’m not scared of snakes. I like snakes and I know a lot of people love snakes…

Schenk: I’m not editing that out. Why is that funny to you?

Smith: So there is a scene in this article where the staff, somebody is complaining about leg pain, and the staff pulled back the sheet and it says a snake jumps out.

Schenk: Okay, I was saying this. Will – we might have actually addressed this in other episodes.

Smith: Oh he’s talking about my herpetological past.

Schenk: Yeah, why Will – this is going to be hard for Dennis, the translator, or the transcriber.

Smith: Yeah. Herpetology – herpetological.

Schenk: Okay, what is that?

Smith: It’s the study of reptiles and amphibians.

Schenk: And so growing up in the mountains of Georgia…

Smith: I wanted to be a herpetologist. That’s all that I wanted to be was somebody who made money studying snakes and frogs and lizards.

Schenk: Okay, so let’s put this to the test. So okay, based on your alleged knowledge of snakes, we’re going to assume this is in Mississippi where this occurred, and the snake jumped. We found it in a bed and it jumped. What kind of snake was it?

Smith: First of all, snakes don’t jump, they don’t have legs. But if I had to guess, it was probably some sort of common rat snake, perhaps even the black rat snake, which has a Latin name of pantherophis obsoletus. It’s very common in the Southeast.

Schenk: Also aside from snakes jumping out, we’ve got mold in showers, no curtains in the showers so there’s no privacy. The staff would bring in several woman into the bathrooms at a time, undress and disrobe them in groups. Then they didn’t pay rent in many of these facilities. Oxygen bottles, medical tubing, garbage bags and towels were rationed and reused. So at some point, there was a class action suit against at least a few of these. At that point, they stopped paying for employees’ health insurance and didn’t give them paychecks, which probably isn’t a good thing if you want to fight the allegations. If your employees aren’t even with you, then nobody’s with you.

But then in the article, the U.S. government later joined the lawsuit saying the couple overmedicated residents, failed to meet the nutritional needs and hired insufficient staff to take care of them, Medicare, and most importantly, Medicare and Medicaid funds paid to the home instead were diverted to other entities affiliated with the Mittleiders, leaving one Mississippi nursing home unable to pay for food, heat, air conditioning or pest control.

So Will, we’ve talked about this before but I think this is a good point to bring this up is what is an action for – is it qui tam? Am I saying it right?

Smith: It’s qui tam, and it comes from a very long Latin phrase that starts out, “Qui tam,” I’m not going to even try to pronounce it. The English translation of it is, “He who sues in this matter for the kind as well as himself.” And it goes back to Roman times, to early Anglo-Saxon times. What it has to do with is if the king had a certain decree, if the crown, the government had certain rules and regulations and your neighbor was violating them, you could tell on your neighbor, and then whatever enforcement mechanism they had, if it was taking part of their land or taking part of his livestock or him forfeiting a certain amount of money, you could, because you brought this to the attention of the king, you could get some of that land or livestock or money. Clearly over the years, it became very abusive. All you had to do was say, “Hey, my neighbor Flaxembourg, I saw him working on the Sabbath,” so you would get some of his livestock.

But it’s a very useful tool nowadays. It has a lot of restrictions. It has a lot of rules but it has to do with when there are certain regulations and rules by the government, if you know somebody who is abusing the government, because the government, it’s just an entity that has no idea what’s going on most of the time. So in these circumstances, in the healthcare circumstances, you have CMS, the Centers for Medicare and Medicaid Services, constantly paying out lots of money, lots, I mean it is a gravy train to some places, lots of money for the care of the elderly. And you’ll have nursing homes that commonly pad their minimum data sheet reports that claim they need more assistance or more money for residents that are overbilling Medicare and Medicaid. And so you’ll have people that’ll then tell the king, which in our case is just a Republican representative government…

Schenk: Or Elvis.

Smith: Or Elvis – “Hey, this is going on.” And what happens if the Department of Justice looks at this and determines, “Hey, you guys are overbilling Medicare/Medicaid services.” And they get a settlement from them. That person who told on them, the snitch, can share in some of the profits, can be paid some amount of award. So it’s an incentive for snitching, and in this case, it’s a good snitch. It’s a good thing to snitch on.

Schenk: Oh, I thought you were going to say, “In this case, snitches don’t get stitches.”

Smith: Right. In this case, snitches don’t get stitches.

Schenk: Okay. So the U.S. attorney general has stated that healthcare fraud, as Will was talking about, was one of the Justice Department’s highest priorities. A recent audit estimates that approximately 11 percent of CMS’s 2016 fee for service payments were improper – 11 percent improper. This meant that 3.7 billion in projected improper payments. From 2010 to 2012, the government collected $8 in almost every dollar spent in fines and penalties on healthcare enforcement. State governments are also conducting their own fraud and abuse investigations.

And actually I’m taking this next piece of information – this is interesting. This is coming from an industry article. So this is from the side of the nursing home industry.

Smith: Right.

Schenk: So it’s interesting – their take on this. This has created a – this is according to the article – this has created a bounty system for federal investigators. CMS gets to keep a substantial portion of moneys reported and penalties paid from settlement of fraud and abuse investigations. This provides a substantial incentive for aggressive investigation and pursuit of questionable cases. Civil and criminal sanctions are available. Amounts repaid to the government are typically many times in excess of the amount allegedly overbilled. For example, in one settlement, a physician was fined more than $4 million for Medicare fraud where payments originally received totaled slightly more than 273,000, thus fines and penalties were over 15 times the amounts wrongfully paid – and on and on as if that’s a problem. Like do you think – “Okay guys, you got me. I overbilled by more than 270,000. Here is this back.”

Smith: No. Like I mentioned in the history of whistleblower acts, they were regularly abused because there is an incentive there to snitch on people. However, I can tell you in the current regulatory environment, this is not something that happens that much because it’s not as though you can just go to the local constable and say, “Hey Elgore,” – I’m trying to make up a bunch of Anglo-Saxon names, I don’t know what they were.

Schenk: What was the one? It was like a Swedish name.

Smith: Like Fligore? I assume they all end in –gore.

Schenk: All right.

Smith: But no, you could go and easily – the system was so corrupt and pervasive back then, it was easy to take advantage of. Now it’s not. I can tell you right now that I have never personally seen anybody in a nursing home use the qui tam provision because we don’t know what we’re doing. We don’t know who to go to. We don’t know how to tell somebody, not to mention the fact that let’s say you even figure out how to blow the whistle, right? The Department of Justice isn’t just going to jump on every single claim that it gets, and it’s hard to investigate these kinds of claims. But it is a huge problem, and it’s one of the reasons it’s so pervasive though, this misuse – and maybe it’s not necessarily misuse, but this indulgence of funds by these owners of the nursing homes.

It’s so pervasive it’s one of the reasons I got into this because I distinctly remember a nursing home that I will not name, but a nursing home that I worked in, and it was horrible. We never had enough staff. The residents definitely faced neglect, and I remember the owner’s wife would come up to the nursing home occasionally in this Mercedes Benz. She looked like – who were the…

Schenk: C.C. DeVille.

Smith: Yeah, well I was thinking of the people form Gilligan’s Island.

Schenk: The Howells.

Smith: The Howells. Lovey Howell. She had a fur coat on. It’s like, lady, you’re coming up here showing off all your wealth. We’re working 16-hour shifts. The residents have other people’s dentures in their mouths. Like you’re clearly not using all the funds that you’re getting. And that’s prevalent. It’s really prevalent. Whether or not they were guilty of overbilling Medicare, who knows, but they constantly abused the system and they constantly diverted the funds to their own needs. It’s pervasive. It’s far more pervasive than the misuse of the whistleblower act, I can tell you that right now. It just doesn’t happen that much.

Schenk: So it’s not C.C. DeVille who is I think the guitar player from Poison. Who’s the bad lady from 101 Dalmatians?

Smith: Yeah, Cruella DeVille.

Schenk: Yeah.

Smith: I knew that’s what he meant. I just ignored it and continued to move on because C.C. DeVille, I was like, “Is he trying to say, ‘I’m ready for my close-up, Mr. DeVille?’”

Schenk: It could be anything.   

Smith: It’s not DeVille. It’s DeMille.

Schenk: DeMille. Anything that either one of us say to each other is essentially like the show, “Classic Concentration.” We have to play a matching game only to uncover a rebus – what’s that called? Here’s another one. What’s it called?

Smith: Are you talking about the Egyptian god Anubis?

Schenk: No. What’s it called if instead of me calling you a screwball, I’ll show you a screw and a ball?

Smith: I don’t know.

Schenk: I think it’s a rebus. Let’s move on from there. Sorry.

Smith: Jean’s got his work cut out in editing this video.

Schenk: Jean really does. You’ve got facilities who are overbilling Medicare. So what happens when an employee rats them out? Can there be any retaliation? And that takes us to a story out of Chicago, actually Woodstock, Illinois, not necessarily about Medicare overbilling but literally just about whistleblowing.

Juana Walsh has filed a lawsuit in McKinley County, Illinois, this week against her former employer Hearthstone Communities over her termination from the company in November 2016. The lawsuit claims Hearthstone violated the Illinois Whistleblower Act when she was fired for reporting another employee on resident abuse claims. Walsh is seeking to be reinstated in her job as a certified nursing assistant plus two times back pay and more than $75,000 in damages.

Walsh’s lawsuit claims that Walsh was checking on an elderly resident four days earlier when she noticed he was shaking and appeared to be nervous. The patient told Walsh that he was very afraid of a male nurse assistant who the patient said had treated him very badly. The nursing assistant asked Walsh not to tell the other nursing assistant what he told her. The patient who has since died told Walsh that the other nursing assistant told him to keep quiet and not to bother him and was physically rough with him.

Smith: Did you intentionally find issues or stories from other states with names of cities similar to Georgia cities.

Schenk: Oh, that does seem to be a pattern, doesn’t it?

Smith: Yeah, there’s a Woodstock, Georgia.

Schenk: There is a Woodstock, Georgia.

Smith: There’s an Alpharetta, Georgia. Did you get anything from Atlanta, Texas?

Schenk: There is an Atlanta, Texas.

Smith: I know there’s an Atlanta, Texas.

Schenk: Hey.

Smith: There’s also a Paris, Texas.

Schenk: There’s a Paris, Tennessee. That’s where major Civil War battles…

Smith: There’s a Sparta, Tennessee.

Schenk: A Civil War battle took place – I watched the reenactment when I was a little kid.

Smith: And participated in it. Something you don’t know is that Rob is a die-hard Civil War recreationist.

Schenk: Absolutely not. Absolutely not. I wish there was some way I could convince you I was not, but the audience is probably going to believe that. I am not a Civil War re-enactor at all.

Okay. So back to the story. Walsh has reported the claims to the nurse in charge and the next day to the human resources director. And she was asked to write a report and she was told by the human resources director that the patient’s claims were not going to be reported because nursing home officials believed it to be untrue and the patient was confused. So then she wrote the report and gave it to the patient, the resident’s brother, and that’s when she was fired.

So this is an interesting area of the law. For what reasons can a nursing home, a private institution – I’m not talking about public, I’m not talking about the government, the people that work at the DMV, the people who work for the Department of Transportation, I’m talking about private employers – what is the legal obligation? What can they do in terms of firing somebody? What reasons? Normally it’s going to depend on what state you’re in.

Smith: Yeah, I was about to say. Like in Georgia, it’s any reason at all.

Schenk: Georgia, you can walk in, like, “Man, I don’t like the Atlanta Falcons,” and you can legally be terminated, like no problem.

Smith: The only protections you have in Georgia are whatever federal protections.

Schenk: Like you can’t fire somebody for ethnicity, religious reasons, military service, that kind of thing.

Smith: Yeah, anything under Title VII of the Civil Rights Act.

Schenk: Correct. But if you walk in and go to your private employer, restaurant, whatever it is and go, “I don’t feel safe here because there’s no lighting at night when I walk out,” they can fire me for that. They can fire me if I go to report crimes, whatever, for any reason. What we used to say, it’s a good reason, a bad reason or no reason at all, you can be terminated in Georgia.

Some states, for the purposes of the betterment of the community, protect employees when they are fired because they decided to whistleblow, go to the government, go to a law enforcement agency, in this instance, go to the family to report abuse. Georgia doesn’t have it. I think many states in the South don’t have it. I think the further west you go and the further north you go, the more likely it is you’ll find whistleblower protections.

Smith: I don’t know what the rules are though when you’re receiving federal funds.

Schenk: Yeah, that’s true.

Smith: So if you’re getting money – this maybe something we need to look into. If you’re getting money from CMS and you cause a qui tam action to be brought, I think you have some protections.

Schenk: You’ll definitely have it under federal. There’s definitely a federal protection and we talked about that last week and we talked about phase two in reporting crime. You would have federal protection, which trumps state protection. So even if you didn’t have state protection, if you whistleblew in that context, you’d be protected even in Georgia.

Smith: And again, mainly because you’re getting money from the government, so you’re paid by the government.

Schenk: So the moral of the story is this – regardless of what state you’re in, if you see something, say something. This is a public service announcement to all the nurses, the CNAs, charge nurses, whatever you’ve got. If you see abuse, report it.

Smith: Yeah. Absolutely.

Schenk: So we hope this lady gets her back pay. And that’s an interesting thing too with these whistleblower acts, okay? I want you to imagine this. Part of what you’re asking for in these lawsuits is not just back pay for having been fired, is you get your job back.

Smith: Yeah, I wouldn’t want to work there.

Schenk: That’s what I’m saying, like I’ll take my back pay, thank you very much, and I’m going to go to the next place, but not, “Hey guys, missed you over this past 18 months. What’s been going on, Tammy?”

Smith: “Remember that horrible litigation we went through? Anyways, whose birthday is it this month? Are we doing office Secret Santa?” So anyways, you can tell I’ve worked in a lot of offices.

Schenk: So Will, there’s also a story coming to us out of Madison.

Smith: Is this the false medical record charge?

Schenk: Yes. Where is it a crime to misrepresent what’s in a medical record?

Smith: Well apparently it is in Madison.

Schenk: Madison Township, Ohio.

Smith: Yeah. So this lady falsely marked that she had completed a bed check on an 85-year-old dementia resident. The woman marked the chart the same day the resident eloped outside and died of hypothermia after being stranded outdoors for more than four hours. So it is apparently a misdemeanor in Michigan…

Schenk: Ohio.

Smith: Grand Rapids, Michigan.

Schenk: Oh, I’m looking at the wrong article. Sorry about that.

Smith: Yeah, I’m trying to figure out – you’ve already confused me so much with your intentional…

Schenk: That’s what’s interesting about this is because it’s Madison, Ohio.

Smith: I know, and I was like maybe I don’t understand because you keep picking places that have the exact same name somewhere else.

Schenk: This is coming to you from New York City, Florida.

Smith: Yeah. So here we go – Los Angeles, Idaho. It took me a second to think of a place. Anyways, so it’s apparently a misdemeanor for her to place false information in a medical chart. And what they’re alleging is there are these things called ADLs, which are activities of daily living. Certified nursing aids and floor nurses are constantly going through ADLs and they’re checking off something – resident had a bowel movement, I changed resident’s sheets, I turned resident in bed.

And so I’ll be honest with you, this happens a lot, what’ll happen is people are really backed up and short-staffed, so what they’ll do is they’ll go through their shift barely with enough time to get everything done, and then at the end of their shift, they’ll go back through the charts and go, “Okay, well I did all this stuff, right?” Sometimes when you do that, you may make a check that isn’t accurate, like did you check this woman’s bed? Yeah, I checked this woman’s bed. Well I typically do that so that’s why I checked it. I’m not suggesting that’s okay. It is not okay and it leads to situations like this in which the elderly woman was marked as in bed, but she wasn’t in bed. She was outside in the process of dying from hypothermia.

And so the core – she either pled guilty or was found guilty. They gave her a six month delayed sentence, so six months served delayed while her attorney appealed her decision. What they’re going to do is go to the appellate courts and the appellate courts are either going to say, “These are not the types of things that fall within this criminal statute,” or “Yeah, this is the type of thing.” I hope it’s not the type of thing. I think – I’m never a fan of – well that’s not true. I’m usually…

Schenk: Seldom.

Smith: I’m seldom a fan of the low people on the totem pole, which actually isn’t correct. The lower you are on the totem pole, the more important you are.

Schenk: I feel like that is something we can easily look up on Snopes as not accurate. In fact, the higher you are on the totem pole, the better.

Smith: Look that up when we have time.

Schenk: I will.

Smith: So anyways, I don’t like seeing the low people getting in trouble unless they have clearly and intentionally committed abuse, which happens. And I’m not saying that they should be, we should just ignore them, but the reason why this probably happened is because this place is short-staffed because the owners are being hogs and keeping a lot of money and not hiring enough staff, and so this woman just – she put a mark where she shouldn’t have. Is she responsible? She shares in the responsibility, but should she face criminal charges because of that? I just – I have a lot of issue with that because there’s so much that we don’t know about these circumstances.

But anyways, that’s what’s going on here is there is a statute here in the state that says placing false information, intentionally placing false information in a medical chart is a criminal offense, and that’s what she did. It’s a sad, sad situation because she marked that this woman was in bed. She wasn’t, and what happened was is that woman was outside and she died of hypothermia.

Schenk: Okay. So I’ll understand that totem poles vary across many Native cultures, so there are 1,000 different ways that you can do totem poles. This is from Wikipedia. Those from cultures that do not carve totem poles often assume the linear representation of the figures places the most importance on the highest figures, an idea that became pervasive in the dominant culture after it entered into mainstream parlance in the 1930s with the phrase “low man on the totem pole.” However Native sources often object the linear component altogether or reverse the hierarchy, with the most important representations on the bottom, bearing the weight of all the other figures, or at eye-level with the viewer to heighten their significance. Many poles have no vertical arrangement at all consisting of a lone figure atop an undecorated column.

Smith: So not only, for those of you who made it all the way through this podcast, not only did you learn about nursing home abuse and neglect, but you got a little fact there.

Schenk: A little fact-totem.

Smith: A little fact-totem that it is incorrect that the low man on the totem pole is the…

Schenk: Correct. And actually we should probably phase that out because I’m sure that is ethnically insensitive to say low man on the totem pole.

Smith: I feel like that’s a dig.

Schenk: I don’t know. Am I being too sensitive?

Smith: No, I think you’re being too sensitive, yeah, yeah. Yeah, because we’re talking about an aspect of somebody’s culture. We’re incorrectly identifying it. I think it would be perfectly fine if we were like, “I think you’re the high man on the totem pole.”

Schenk: Oh, like high man on the totem pole?

Smith: Oh, like you are the least important person and you are the high person – you are the highest person on the totem pole, which is actually the least important. The most important person is lower on the totem pole because they’re supporting everybody else.

Schenk: That’s right.

Smith: How are we going to segue with that?

Schenk: I don’t know. Like if we were on a totem pole…

Smith: Yeah, as far as totem poles go…

Schenk: The ridiculousness of this content would be at the bottom of the totem pole.

Smith: We’re at the end of this totem pole.

Schenk: You can always watch this podcast on YouTube or on our website, which is NursingHomeAbusePodcast.com, or you can listen. New episodes are available for download every Monday on what platforms, Will?

Smith: You can listen to them on iTunes. You can listen to them on Stitcher. You can also listen to them on Spotify.

Schenk: Spotify. I’ve got a Spotify Premium account so I don’t hear ads because I hate the sound – I don’t know if the guy still does their ads, but I hated his voice, so I got premium only for that reason.

Smith: Did you ever hear the one where he’d act like he was drinking something and it’d go…

Schenk: I hate that.

Smith: I can’t even do it, but it’s when people say, “Ah,” and they make that sound.

Schenk: I hate that. No, I don’t even want to think about it.

Smith: I can’t do that.

Schenk: Yeah. Anyways, all right guys, until next time.

Smith: Until next time.

Thanks for tuning into the Nursing Home Abuse Podcast. Please be sure to subscribe to this podcast on iTunes or Stitcher and feel free to leave us some feedback. And for more information on the topics discussed on this episode, check out the show website – NursingHomeAbusePodcast.com. That’s NursingHomeAbusePodcast.com. See you next time.


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