Whistleblower case against provider can proceed despite 'scant' evidence, court rules

The case involves allegedly inflated therapy claims made by the providers
The case involves allegedly inflated therapy claims made by the providers

A False Claims Act lawsuit filed against the owners of 53 Florida nursing homes can continue despite some “dubious” assessments by a whistleblower, a judge ruled last week.

Former employee Angela Ruckh first filed a lawsuit against La Vie Health Care Centers, now Consulate Health Care, in 2011. Ruckh claimed that she experienced a “years long corporate scheme to bilk Medicare and Medicaid” related to therapy upcoding. She sought to back up her case with four million documents, depositions of other employees, and five expert witnesses.

The companies named in Ruckh's case filed for summary judgment, arguing that her evidence does not support her allegations, “much less a genuine issue of material fact for trial.” The defendants said Ruckh's expert witnesses were not valid, plus her time at two facilities meant she would have no knowledge of the other 51 locations.

In an order filed on Thursday, Judge Steven D. Merryday, U.S. District Court for the Middle District of Florida, agreed some of Ruckh's examples of the alleged upcoding were “equivocal” and backed up by “dubious” medical assessments.

“[Ruckh's] familiar pattern persists: a broad charge and equivocal and scant evidence,” Merryday wrote.

Despite those shortcomings, Merryday found one expert's testimony to support Ruckh's claims. In that testimony, the expert found 128 out of 320 Medicare claims reviewed to have inflated RUG levels.

“Assuming admissibility, the testimony offers some pertinent evidence of a scheme — certainly not conclusive, perhaps not even persuasive … but at least somewhat more than no evidence,” Merryday wrote.

Merryday denied the providers' motion for summary judgment, noting that their “strong” argument ultimately “falls short” of reaching the conclusion that the case should not be decided by a jury.