Mark Parkinson

The nation’s largest association for nursing home and other long-term care operators has publicly expressed its staunch disapproval of a federal prosecution method that takes only small slices of evidence into consideration.

Statistical sampling has been used in False Claims Act cases. The American Health Care Association filed a “friend of the court” brief at the end of March supporting hospice provider Agape Senior Community Inc., which is being prosecuted using the method.

AHCA called the tactic a “novel shortcut” with “no textual basis in the FCA.”

Statistical sampling uses a “representative sample” of submitted claims thought to be upcoded, and compares them to the total number of claims submitted during the period when the violations were said to occur.

Statistical sampling violates basic rights to due process and to mount a meaningful defense against accusations, AHCA leaders contend. 

 “AHCA has a monumental interest to defend our membership’s basic due process rights when facing draconian liabilities, such as treble damage awards that can be imposed under the FCA,” said AHCA President and CEO Mark Parkinson. 

“The government wants general sampling to replace specific proof as a shortcut to winning FCA cases. That will also give big government a giant sledgehammer in forcing defendants into pretrial settlements irrespective of the merits of the case. Sampling cannot be a substitute for actual proof in an FCA case.”

The use of statistical sampling has also been called “trial by formula” by the U.S. Supreme Court, Parkinson noted. U.S. ex rel. Michaels v. Agape Senior Community, et al. was slated for review by the U.S. Court of Appeals for the Fourth Circuit at press time.