Judge dismisses claims of 'nationwide' Medicare fraud in Omnicare antipsychotics case

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 Nursing home can't escape billing charges for "worthless care," federal judge rules.
Nursing home can't escape billing charges for "worthless care," federal judge rules.

Long-term care pharmacy Omnicare will not face charges that it engaged in “nationwide” Medicare fraud for off-label antipsychotics prescriptions, a federal judge recently ruled. However, the pharmacy still faces more limited False Claims Act charges over billing for antipsychotic drugs allegedly used for dementia care.

Fox Rx Inc., a sponsor of Medicare Part D drug plans, brought a whistleblower action against Omnicare in 2011. Fox alleged that Omnicare submitted “thousands” of false Medicare claims between 2006-2010 for atypical antipsychotic medications being used to treat long-term care residents with dementia. This is an “off-label” use of these drugs, and therefore these prescriptions would not qualify for Medicare reimbursement.

In an amended complaint filed in September 2012, Fox Rx argued that Omnicare submitted similar false claims to other Medicare Part D sponsors around the country. Spreadsheets attached to this complaint included detailed information about 20 beneficiaries who had dementia but no condition calling for an approved antipsychotic prescription.

These spreadsheets do not provide examples of alleged false claims filed through any Part D sponsor other than Fox Rx, Judge William S. Duffey Jr. wrote in his May 17 dismissal of the “nationwide” claims.

Whistleblowers alleging “prolonged multi-act schemes” do not have to provide details about every questionable act, but can rely on examples to make their case, Duffey wrote. However, Fox Rx acknowledges a total lack of direct knowledge of any false claims Omnicare made through other PDP sponsors, so the judge ruled the “nationwide” claims are too speculative to go forward.

Omnicare will still face charges of alleged false claims submitted to Fox Rx between 2009-2010, which are supported by the information in the spreadsheets, the judge stated.