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Question: Hospice liability may exist in which of the following?
A. False claims in violation of Medicare rules regarding eligible beneficiaries.
B. False claims for continuous home care services.
C. Negligent billing practices.
D. Only A and B are correct.
E. A, B, and C are correct.
Answer: D. With an aging population and better end-of-life care, the United States has in the last decade witnessed about a 50% increase in the number of hospices. Hospice care is a Medicare-covered benefit, and most hospices operate on a for-profit basis. Although occasionally institution based, services are more often offered as an outpatient or home-care option. In 2016, hospice care reached 1.4 million beneficiaries, with total Medicare expenditure of $16.7 billion.1
There are two broad categories of legal jeopardy that hospices face: Medicare fraud and malpractice lawsuits. This article will address these two issues. In addition, hospices, like all health care institutions, face numerous other liabilities, such as negligent hiring, breach of confidentiality, premise liability, HIPAA violations, sexual harassment, vicarious liability, and many others.
Medicare fraud
The False Claims Act (FCA) is an old law enacted by Congress way back in 1863. It imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false.2
Intent to defraud is not a required element. But knowing or reckless disregard of the truth or material misrepresentation are required, although negligence is insufficient to constitute a violation. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim – as well as possible imprisonment. The FCA is the most prominent health care antifraud statute.3 Two others are the federal Anti-Kickback Statute and the Stark Law.
A recent example of hospice fraud involved Ohio’s Chemed and Vitas Hospice Services, which were accused of knowingly billing for hospice-ineligible patients and inflated levels of care.4
The government alleged that the defendants rewarded employees with bonuses based on the number of patients receiving hospice services, irrespective of whether they were actually terminally ill or needed continuous home care services (CHCS). CHCS commands the highest Medicare daily rate and is meant only for the temporary treatment of acute symptoms constituting a medical crisis.
According to the complaint, the defendants set aggressive billing goals for CHCS without regard to whether the patients actually required such a level of service. The defendants agreed to pay $75 million to settle the lawsuit, the largest in the history of hospice false-claim settlements.
Can an alleged wrong prognosis regarding life expectancy amount to a false claim? Under Medicare rules, a physician certifying that a patient is eligible for hospice care must attest that the condition is terminal, with death expected within 6 months.
AseraCare, a hospice company, was accused of knowingly submitting false claims to Medicare by certifying patients as eligible for hospice. The government claimed that the medical records of the 123 patients at issue did not contain clinical information and other documentation that supported the medical prognosis, and thus, AseraCare’s claims for those patients were false.
AseraCare won a summary judgment defending against the $200 million lawsuit in a federal district court in Alabama. The court opined that, when hospice-certifying physicians and government medical experts look at the very same medical records and disagree about eligibility, the opinion of one medical expert alone cannot prove falsity without further evidence of an objective falsehood.5 The government, however, has appealed the decision to the Court of Appeals for the Eleventh Circuit.
Malpractice
Hospices have their share of malpractice litigation, and judgments may be substantial because of noneconomic losses such as pain and suffering, not to mention punitive damages.
For example, in 2013a Maryland jury awarded more than $950,000 to a family that alleged that the decedent’s death was caused by the excessive use of morphine and oxycodone in treating her infected ulcers. Such treatment was deemed suitable for a hospice-type situation, but in fact, the patient was not expected to die within 6 months.
Her husband and two children argued successfully that the hospital committed malpractice by misdiagnosing her need for hospice care and by performing unnecessary surgery. The bulk of the judgment was for pain and suffering and other noneconomic damages.
In another negligence suit, a 66-year-old woman died in a hospice after receiving an overdose of Dilaudid for pancreatic cancer, which an autopsy revealed she did not have. In that case, the plaintiffs were awarded $4.5 million in a wrongful death lawsuit filed against Hospice Ministries and its medical director. The jury awarded the family $4 million in monetary compensation and $500,000 in punitive damages.
The case of McGregor v. Hospice Care of Louisiana is illustrative of a malpractice action with a focus on expert testimony.6 The issue in this case was whether the testimony of the plaintiffs’ expert, Bruce Samuels, MD, was admissible and whether it correctly addressed the requisite standard of care.
The decedent had terminal metastatic prostate cancer and was under the care of an oncologist. He eventually enrolled as a patient of Hospice of Baton Rouge, whose nurses visited him in his home several times a week. They reported their findings to the attending oncologist, who prescribed a total of 40 morphine suppositories to be administered 1-2 per hour as needed for pain. However, the prescription noted that only half – that is, 20 suppositories – were to be filled, and stipulated when the remaining 20 suppositories could be released.
Believing that his father was in pain, the patient’s son demanded the early release of the remaining 20 morphine suppositories; he also refused to allow the nurse to assess the patient and exhibited threatening behavior toward her. After conferring with the oncologist on call, the hospice discharged the patient from its care. An ambulance later took the patient to a hospital, where he died that evening.
The family filed a lawsuit against the hospice, alleging negligence in failing to release the remaining 20 morphine suppositories and in abandoning the patient by discharging him. At trial, the jury rendered a verdict in favor of the hospice, after the court excluded the testimony of the plaintiffs’ expert as being outside his expertise. However, the Louisiana Supreme Court found that the trial court erred in excluding his testimony.
On remand, the appellate court affirmed the trial court’s judgment that the plaintiffs had failed to meet the burden of proof showing negligence. It found that the expert, Dr. Samuels, admitted he had never written a partial-fill prescription before and that he did not know who had the authority to authorize the pharmacist to release the remainder of the partial fill prescription in this case.
In addition, Dr. Samuels acknowledged that a nurse has the obligation to assess a patient and report her findings to the physician and follow any orders of the physician. Further, the nurse indicated that the doctor had instructed her to discharge the patient, not from the doctor’s care, but for treatment to be continued at the hospital.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. “Medicare’s most indefensible fraud hotspot: Hospice care.” CNBC, Modern Medicine, Aug. 3, 2018.
2. 31 U.S. Code, Section 3729(a)(1)(A).
3. Tan SY. “Update on the False Claims Act.” Internal Medicine News, April 5, 2017.
4. U.S. Department of Justice, Office of Public Affairs, Oct. 30, 2017.
5. U.S. ex rel. Paradies et al. v. AseraCare Inc. et al., case number 2:12-CV-245-KOB, in the U.S. District Court for the Northern District of Alabama, March 31, 2016.
6. McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, No. 2013 CA 1979R, consolidated with No. 2013 CA 1980R. Court of Appeals of Louisiana, First Circuit, judgment rendered Sept. 21, 2015.
Question: Hospice liability may exist in which of the following?
A. False claims in violation of Medicare rules regarding eligible beneficiaries.
B. False claims for continuous home care services.
C. Negligent billing practices.
D. Only A and B are correct.
E. A, B, and C are correct.
Answer: D. With an aging population and better end-of-life care, the United States has in the last decade witnessed about a 50% increase in the number of hospices. Hospice care is a Medicare-covered benefit, and most hospices operate on a for-profit basis. Although occasionally institution based, services are more often offered as an outpatient or home-care option. In 2016, hospice care reached 1.4 million beneficiaries, with total Medicare expenditure of $16.7 billion.1
There are two broad categories of legal jeopardy that hospices face: Medicare fraud and malpractice lawsuits. This article will address these two issues. In addition, hospices, like all health care institutions, face numerous other liabilities, such as negligent hiring, breach of confidentiality, premise liability, HIPAA violations, sexual harassment, vicarious liability, and many others.
Medicare fraud
The False Claims Act (FCA) is an old law enacted by Congress way back in 1863. It imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false.2
Intent to defraud is not a required element. But knowing or reckless disregard of the truth or material misrepresentation are required, although negligence is insufficient to constitute a violation. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim – as well as possible imprisonment. The FCA is the most prominent health care antifraud statute.3 Two others are the federal Anti-Kickback Statute and the Stark Law.
A recent example of hospice fraud involved Ohio’s Chemed and Vitas Hospice Services, which were accused of knowingly billing for hospice-ineligible patients and inflated levels of care.4
The government alleged that the defendants rewarded employees with bonuses based on the number of patients receiving hospice services, irrespective of whether they were actually terminally ill or needed continuous home care services (CHCS). CHCS commands the highest Medicare daily rate and is meant only for the temporary treatment of acute symptoms constituting a medical crisis.
According to the complaint, the defendants set aggressive billing goals for CHCS without regard to whether the patients actually required such a level of service. The defendants agreed to pay $75 million to settle the lawsuit, the largest in the history of hospice false-claim settlements.
Can an alleged wrong prognosis regarding life expectancy amount to a false claim? Under Medicare rules, a physician certifying that a patient is eligible for hospice care must attest that the condition is terminal, with death expected within 6 months.
AseraCare, a hospice company, was accused of knowingly submitting false claims to Medicare by certifying patients as eligible for hospice. The government claimed that the medical records of the 123 patients at issue did not contain clinical information and other documentation that supported the medical prognosis, and thus, AseraCare’s claims for those patients were false.
AseraCare won a summary judgment defending against the $200 million lawsuit in a federal district court in Alabama. The court opined that, when hospice-certifying physicians and government medical experts look at the very same medical records and disagree about eligibility, the opinion of one medical expert alone cannot prove falsity without further evidence of an objective falsehood.5 The government, however, has appealed the decision to the Court of Appeals for the Eleventh Circuit.
Malpractice
Hospices have their share of malpractice litigation, and judgments may be substantial because of noneconomic losses such as pain and suffering, not to mention punitive damages.
For example, in 2013a Maryland jury awarded more than $950,000 to a family that alleged that the decedent’s death was caused by the excessive use of morphine and oxycodone in treating her infected ulcers. Such treatment was deemed suitable for a hospice-type situation, but in fact, the patient was not expected to die within 6 months.
Her husband and two children argued successfully that the hospital committed malpractice by misdiagnosing her need for hospice care and by performing unnecessary surgery. The bulk of the judgment was for pain and suffering and other noneconomic damages.
In another negligence suit, a 66-year-old woman died in a hospice after receiving an overdose of Dilaudid for pancreatic cancer, which an autopsy revealed she did not have. In that case, the plaintiffs were awarded $4.5 million in a wrongful death lawsuit filed against Hospice Ministries and its medical director. The jury awarded the family $4 million in monetary compensation and $500,000 in punitive damages.
The case of McGregor v. Hospice Care of Louisiana is illustrative of a malpractice action with a focus on expert testimony.6 The issue in this case was whether the testimony of the plaintiffs’ expert, Bruce Samuels, MD, was admissible and whether it correctly addressed the requisite standard of care.
The decedent had terminal metastatic prostate cancer and was under the care of an oncologist. He eventually enrolled as a patient of Hospice of Baton Rouge, whose nurses visited him in his home several times a week. They reported their findings to the attending oncologist, who prescribed a total of 40 morphine suppositories to be administered 1-2 per hour as needed for pain. However, the prescription noted that only half – that is, 20 suppositories – were to be filled, and stipulated when the remaining 20 suppositories could be released.
Believing that his father was in pain, the patient’s son demanded the early release of the remaining 20 morphine suppositories; he also refused to allow the nurse to assess the patient and exhibited threatening behavior toward her. After conferring with the oncologist on call, the hospice discharged the patient from its care. An ambulance later took the patient to a hospital, where he died that evening.
The family filed a lawsuit against the hospice, alleging negligence in failing to release the remaining 20 morphine suppositories and in abandoning the patient by discharging him. At trial, the jury rendered a verdict in favor of the hospice, after the court excluded the testimony of the plaintiffs’ expert as being outside his expertise. However, the Louisiana Supreme Court found that the trial court erred in excluding his testimony.
On remand, the appellate court affirmed the trial court’s judgment that the plaintiffs had failed to meet the burden of proof showing negligence. It found that the expert, Dr. Samuels, admitted he had never written a partial-fill prescription before and that he did not know who had the authority to authorize the pharmacist to release the remainder of the partial fill prescription in this case.
In addition, Dr. Samuels acknowledged that a nurse has the obligation to assess a patient and report her findings to the physician and follow any orders of the physician. Further, the nurse indicated that the doctor had instructed her to discharge the patient, not from the doctor’s care, but for treatment to be continued at the hospital.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. “Medicare’s most indefensible fraud hotspot: Hospice care.” CNBC, Modern Medicine, Aug. 3, 2018.
2. 31 U.S. Code, Section 3729(a)(1)(A).
3. Tan SY. “Update on the False Claims Act.” Internal Medicine News, April 5, 2017.
4. U.S. Department of Justice, Office of Public Affairs, Oct. 30, 2017.
5. U.S. ex rel. Paradies et al. v. AseraCare Inc. et al., case number 2:12-CV-245-KOB, in the U.S. District Court for the Northern District of Alabama, March 31, 2016.
6. McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, No. 2013 CA 1979R, consolidated with No. 2013 CA 1980R. Court of Appeals of Louisiana, First Circuit, judgment rendered Sept. 21, 2015.
Question: Hospice liability may exist in which of the following?
A. False claims in violation of Medicare rules regarding eligible beneficiaries.
B. False claims for continuous home care services.
C. Negligent billing practices.
D. Only A and B are correct.
E. A, B, and C are correct.
Answer: D. With an aging population and better end-of-life care, the United States has in the last decade witnessed about a 50% increase in the number of hospices. Hospice care is a Medicare-covered benefit, and most hospices operate on a for-profit basis. Although occasionally institution based, services are more often offered as an outpatient or home-care option. In 2016, hospice care reached 1.4 million beneficiaries, with total Medicare expenditure of $16.7 billion.1
There are two broad categories of legal jeopardy that hospices face: Medicare fraud and malpractice lawsuits. This article will address these two issues. In addition, hospices, like all health care institutions, face numerous other liabilities, such as negligent hiring, breach of confidentiality, premise liability, HIPAA violations, sexual harassment, vicarious liability, and many others.
Medicare fraud
The False Claims Act (FCA) is an old law enacted by Congress way back in 1863. It imposes liability for submitting a payment demand to the federal government where there is actual or constructive knowledge that the claim is false.2
Intent to defraud is not a required element. But knowing or reckless disregard of the truth or material misrepresentation are required, although negligence is insufficient to constitute a violation. Penalties include treble damages, costs and attorney fees, and fines of $11,000 per false claim – as well as possible imprisonment. The FCA is the most prominent health care antifraud statute.3 Two others are the federal Anti-Kickback Statute and the Stark Law.
A recent example of hospice fraud involved Ohio’s Chemed and Vitas Hospice Services, which were accused of knowingly billing for hospice-ineligible patients and inflated levels of care.4
The government alleged that the defendants rewarded employees with bonuses based on the number of patients receiving hospice services, irrespective of whether they were actually terminally ill or needed continuous home care services (CHCS). CHCS commands the highest Medicare daily rate and is meant only for the temporary treatment of acute symptoms constituting a medical crisis.
According to the complaint, the defendants set aggressive billing goals for CHCS without regard to whether the patients actually required such a level of service. The defendants agreed to pay $75 million to settle the lawsuit, the largest in the history of hospice false-claim settlements.
Can an alleged wrong prognosis regarding life expectancy amount to a false claim? Under Medicare rules, a physician certifying that a patient is eligible for hospice care must attest that the condition is terminal, with death expected within 6 months.
AseraCare, a hospice company, was accused of knowingly submitting false claims to Medicare by certifying patients as eligible for hospice. The government claimed that the medical records of the 123 patients at issue did not contain clinical information and other documentation that supported the medical prognosis, and thus, AseraCare’s claims for those patients were false.
AseraCare won a summary judgment defending against the $200 million lawsuit in a federal district court in Alabama. The court opined that, when hospice-certifying physicians and government medical experts look at the very same medical records and disagree about eligibility, the opinion of one medical expert alone cannot prove falsity without further evidence of an objective falsehood.5 The government, however, has appealed the decision to the Court of Appeals for the Eleventh Circuit.
Malpractice
Hospices have their share of malpractice litigation, and judgments may be substantial because of noneconomic losses such as pain and suffering, not to mention punitive damages.
For example, in 2013a Maryland jury awarded more than $950,000 to a family that alleged that the decedent’s death was caused by the excessive use of morphine and oxycodone in treating her infected ulcers. Such treatment was deemed suitable for a hospice-type situation, but in fact, the patient was not expected to die within 6 months.
Her husband and two children argued successfully that the hospital committed malpractice by misdiagnosing her need for hospice care and by performing unnecessary surgery. The bulk of the judgment was for pain and suffering and other noneconomic damages.
In another negligence suit, a 66-year-old woman died in a hospice after receiving an overdose of Dilaudid for pancreatic cancer, which an autopsy revealed she did not have. In that case, the plaintiffs were awarded $4.5 million in a wrongful death lawsuit filed against Hospice Ministries and its medical director. The jury awarded the family $4 million in monetary compensation and $500,000 in punitive damages.
The case of McGregor v. Hospice Care of Louisiana is illustrative of a malpractice action with a focus on expert testimony.6 The issue in this case was whether the testimony of the plaintiffs’ expert, Bruce Samuels, MD, was admissible and whether it correctly addressed the requisite standard of care.
The decedent had terminal metastatic prostate cancer and was under the care of an oncologist. He eventually enrolled as a patient of Hospice of Baton Rouge, whose nurses visited him in his home several times a week. They reported their findings to the attending oncologist, who prescribed a total of 40 morphine suppositories to be administered 1-2 per hour as needed for pain. However, the prescription noted that only half – that is, 20 suppositories – were to be filled, and stipulated when the remaining 20 suppositories could be released.
Believing that his father was in pain, the patient’s son demanded the early release of the remaining 20 morphine suppositories; he also refused to allow the nurse to assess the patient and exhibited threatening behavior toward her. After conferring with the oncologist on call, the hospice discharged the patient from its care. An ambulance later took the patient to a hospital, where he died that evening.
The family filed a lawsuit against the hospice, alleging negligence in failing to release the remaining 20 morphine suppositories and in abandoning the patient by discharging him. At trial, the jury rendered a verdict in favor of the hospice, after the court excluded the testimony of the plaintiffs’ expert as being outside his expertise. However, the Louisiana Supreme Court found that the trial court erred in excluding his testimony.
On remand, the appellate court affirmed the trial court’s judgment that the plaintiffs had failed to meet the burden of proof showing negligence. It found that the expert, Dr. Samuels, admitted he had never written a partial-fill prescription before and that he did not know who had the authority to authorize the pharmacist to release the remainder of the partial fill prescription in this case.
In addition, Dr. Samuels acknowledged that a nurse has the obligation to assess a patient and report her findings to the physician and follow any orders of the physician. Further, the nurse indicated that the doctor had instructed her to discharge the patient, not from the doctor’s care, but for treatment to be continued at the hospital.
Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the materials have been taken from earlier columns in Internal Medicine News. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. “Medicare’s most indefensible fraud hotspot: Hospice care.” CNBC, Modern Medicine, Aug. 3, 2018.
2. 31 U.S. Code, Section 3729(a)(1)(A).
3. Tan SY. “Update on the False Claims Act.” Internal Medicine News, April 5, 2017.
4. U.S. Department of Justice, Office of Public Affairs, Oct. 30, 2017.
5. U.S. ex rel. Paradies et al. v. AseraCare Inc. et al., case number 2:12-CV-245-KOB, in the U.S. District Court for the Northern District of Alabama, March 31, 2016.
6. McGregor v. Hospice Care of Louisiana in Baton Rouge, LLC, No. 2013 CA 1979R, consolidated with No. 2013 CA 1980R. Court of Appeals of Louisiana, First Circuit, judgment rendered Sept. 21, 2015.