Retaliation allegations, false claims dismissed in Agape case

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A lawsuit filed in 2012 against Agape is dismissed
A lawsuit filed in 2012 against Agape is dismissed

A district court has dismissed retaliation allegations and false claims in a whistleblower lawsuit against a long-term care provider, giving the company a win in a case that has drawn attention for its use of statistical sampling.

The retaliation claim in United States ex rel. Michaels v. Agape Senior Community, Inc., was dismissed last week by the U.S. District Court for the District of South Carolina, according to Deborah Barbier, the attorney representing the provider. The district court's order to dismiss the retaliation claim on summary judgment grounds arrived one week after a similar order was made to dismiss allegations against Agape of more than 60,000 false claims that were not designated for expert review and trial.

The lawsuit, filed against Agape in 2012 by two former nursing staff members, argues the company fraudulently qualified patients for hospice who did not meet the criteria, as well as improperly billed for skilled nursing and assisted living services that were not provided.

The case garnered industry attention for its use of statistical sampling, a controversial method in which a sample of submitted claims believed to be upcoded are compared to the total number of claims submitted during the period when the violations allegedly occurred.

Provider groups have slammed the use of statistical sampling as giving “big government a giant sledgehammer in forcing defendants into pretrial settlements.”

The dismissal of the retaliation allegations and false claims was a “significant victory for Agape,” Barbier said in a press release issued Wednesday. Agape added it has denied all of the allegations brought in the whistleblowers' suit since the case began, and that the company has a “strong corporate compliance program.”

The “small remaining portion of the case” left after the court's dismissals will move on to trial, Barbier said.

“We are very proud of the work and accomplishments of our employees and we will not allow false allegations made by disgruntled employees to alter our mission, vision and focus,” the provider said in a statement. “Our leading purpose is to find a way to help people live better. It's simply what we do.”

Requests for comment from the attorneys representing the whistleblowers in the case were not returned by production deadline Thursday.