To much of the rooting US public, the False Claims Act is a heroic piece of legislation that guards the “little guy” against big, bad corporations.
Hundreds of millions of dollars in settlements help certify this as true. Long-term care, unfortunately, has been party to more than a few FCA cases.
But no group, and no legislation, is infallible. Nursing homes can still come out on top when “False Claims!” is shouted on the courthouse steps, as recent events show.
Take the example of the “woefully weak whistleblower claim” my colleague Kim Marselas writes about today. A federal judge dismissed claims against eight Texas nursing facilities and their therapy partner, saying the would-be good Samaritan forgot perhaps the most basic tenet of filing a lawsuit: Evidence, and not just opinion, is needed to make a case.
Former executive assistant and controller Terri Winnon’s claims rang pretty similar to others we’ve seen against long-term care providers. Upcoding, services billed for but not delivered, and so on. But she may have been doing only just that: Mimicking what’s been successful in the past. We may never know if she doesn’t find some solid evidence and give it another try somehow.
The judge chastised Winnon’s lack of substance to bring the case. That’s probably a major reason federal prosecutors opted not to join the complaint.
We purposely do not name the accused facilities in today’s article, even though they had a favorable outcome. To drag them further into this years-long process would have only added to the indignities already suffered.
As far as providers are concerned, the “good guys” chalked up a victory here, and that is notable. What is not known is how many FCA cases have been filed over the last 37 years, nor how many have been won or lost by nursing home operators. One way or another, it’s not been a pleasant tournament, so to speak. The losses, both earned and not earned, have been too many.
Which brings to mind another piece of good FCA news providers recently received.
It was just in June when the US Supreme Court lowered the bar for FCA cases to be dismissed. It came in an 8-1 ruling — yes, from this politically polarized court. Their decision allows government litigators to dismiss any False Claims lawsuit, even if the litigators hadn’t joined in the suit.
There are nuances to the June decision that go beyond the basic interpretation offered here. But overall, it’s another FCA outcome that can be counted as a victory for providers. Many experts see it as a disincentive for whistleblowers (and perhaps even more notably, their lawyers) with meritless cases to file suit.
The success of any whistleblowers in the past should not impute an open invitation to anyone with half a mind to file suit in the future, ducks fully in a row or not.
James M. Berklan is McKnight’s Executive Editor.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.