A Tennessee provider must still face claims that it retaliated against a whistleblower, despite a judge tossing those original claims.
The long-running dispute is between Murfreesboro-based National Health Corp. and one of its former nurse leaders, Mary Lea Byrd. In 2012, she filed a complaint, alleging that NHC violated the False Claims Act in numerous ways. The U.S. government declined to intervene in the case, and Byrd has now filed an amended complaint, alleging that the skilled nursing provider illegally retaliated against her whistleblowing actions, eventually forcing her to resign.
National Health Corp. — whose affiliates operate 76 skilled nursing centers — had moved to dismiss the complaint, because they believe it was barred by the three-year statute of limitations for violations of the False Claims Act.
However, Byrd argued that her amended claims “relate back” to the original 2012 complaint because it changed the naming of the party against whom it is asserted. After the case was unsealed in 2017, Byrd filed an amended complaint, naming “National Health Corp.” rather than the original NHC. Those two are loosely affiliated entities, with the latter an administrative services affiliate and contractor to NHC.
National Health Corp. argued that its access to a copy of the original complaint was not enough to make it aware that this particular retaliation claim had been filed, a contention with which a U.S. District Court of Eastern District of Tennessee judge disagreed last week.
“To say that an organization so closely intertwined with another would not be aware of ongoing litigation arising from a FCA claim is, at best, a stretch,” wrote Judge Pamela L. Reeves.
In her original complaint, Byrd — who was hired as a director of nursing at a Farragut, TN, SNF in 1998 — alleged that NHC required patients to bring medication from home, upcoded claims, billed for services not rendered, and kept patients on services when they no longer qualified for skilled care. She alleges that, after she surfaced those allegations, NHC retaliated in various ways on at least five separate occasions, increasing pressure on her to quit. In September 2012, she felt she had “no choice but to resign,” giving her 30-day notice.
NHC argues that Byrd failed to plead that she had suffered any adverse employment action. She was not fired or demoted, the company said, but instead was “constructively discharged.” Officials at the provider did not immediately respond to a McKnight’s request for comment on Friday.