Kindred hospice wins against whistleblower in False Claims case

A Kindred Healthcare hospice affiliate won big this week in a False Claims Act case brought by a former employee.

Misty Wall, a former social worker for Vista Hospice Care Inc., which is owned by Kindred at Home affiliate Gentiva, alleged the company admitted and submitted Medicare claims for patients who weren't eligible for hospice care. She also accused the firm of engaging in kickback activities to promote enrollment.

Another employee who testified in the case said supervisors would routinely tell her to “make it work” and change patients' paperwork to make them look hospice-eligible.

Judge Barbara M. G. Lynn of the U.S. District Court for the Northern District of Texas, however, denied Wall's claims. Lynn said in a ruling Monday that Wall did not provide sufficient evidence linking the alleged scheme to particular records or claims.

“[Wall] seemingly suggests she is only required to prove Defendants operated with reckless disregard as to falsity, and not that the certifications or claims were actually false or fraudulent,” Lynn wrote. “There is no evidence that the certifying physicians ... were not exercising their best clinical judgments nor that they did not believe the subject patients were terminally ill when they certified them as such.”

Lynn also noted that the opinion of an expert physician who testified in the case wasn't enough to prove Vista's physicians choices to admit patients were wrong.

“Medicare regulations require physicians making eligibility determinations to consider ‘subjective ... medical findings,' and do not provide objective standards or criteria to cabin such determinations,” Lynn noted.

The Vista outcome echoes similar recent cases where judges sided with hospice providers on the basis that physicians' opinions on hospice eligibility can differ.