Kimberly Marselas

Many a writer has toiled for McKnight’s in its 42-year history, and in that time, we’ve all reported on our share of spectacular and spectacularly ugly court cases.

But I dare to guess there’s hardly been a more active legal season for skilled nursing than the current Supreme Court session.

In recent weeks, we’ve seen the court hear oral arguments on two major cases that affect providers’ ability to protect themselves from certain legal challenges. Since October, we’ve also seen the court decline to get involved in two other key nursing home cases, leaving their own mark on major decisions by refusing intervention.

But I was excited to see the court take up the case this week of relator Jesse Polansky, who in 2012 alleged that Executive Health Resources improperly billed for inpatient services. After investigating for two years, the government found his case so unlikely to be won that it declined to join in, and then later tried to get a lower federal court to dismiss the case outright.

The justices, after a Tuesday hearing, are weighing whether the government ought to be able to more easily ask courts to dismiss such cases, cases one attorney told me judges often know are lightweight at best and unreasonable healthcare cost-drivers at worst.

If you’ve been around skilled nursing a while, even just a little while, you’ve seen how these cases end up, especially since the individuals suing can win triple damages for reporting alleged fraud.

Too many times operators are targeted by former employees or others who think they can pocket easy cash by alleging misdeeds. While some cases raise reasonable and real concerns, others stink of greed. Unable to make the cases go away quickly, skilled nursing providers have spent millions settling up to prevent further legal bills.

But the reputational and financial damage can linger long after the relator’s check clears. 

And such cases have increased significantly since Congress broadened the scope of the False Claims Act in 1986, likely hoping to drive down healthcare costs. Instead, the last 35-plus years have seen astronomical legal fees hit skilled nursing, often targeted over their use of therapy, and plenty of other healthcare sectors too.

The federal government needs to walk back Congress’ decades-old error and make the bar higher for these non-joined cases to proceed. Here, that means the justices should take the request of federal litigators and make it law. Let the government attorneys who preview the cases have more of a voice in weeding out the worst, least legitimate claims.

After all, it’s the least the Court could do when it comes to balancing out False Claims juris prudence. Earlier this session, they dealt providers a blow when deciding not to hear arguments in three other False Claims Act cases. The appeals could have led to stricter standards for accusers. Now, as one attorney described it, healthcare providers must  operate in “continued chaos” amid ongoing threats from all comers.

We should know by the end of the Supreme Court term this spring whether one factor is about to get a little less chaotic.