A week after the U.S. Supreme Court upheld a federal vaccine mandate for health care workers, justices have turned their attention towards the matter of hospice fraud. The court has asked the U.S. Solicitor general to file a brief detailing the government’s position on a fraud and anti-kickback suit involving Georgia-Based Bethany Hospice & Palliative Care LLC.
Attorneys for two former Bethany employees in October filed a petition to the nation’s highest court after the Eleventh Circuit of the U.S. Court of Appeals dismissed the case in May due to a lack of detail in the complaint.
“Relators’ claim that their status as ‘corporate insiders’ allowed them to acquire personal knowledge of Bethany Hospice’s allegedly fraudulent activity,” court documents obtained by Hospice News indicated. “Specifically, Relators allege that Bethany Hospice operated an illegal referral scheme in which Bethany Hospice paid doctors in exchange for patient referrals.”
The Solicitor General’s Office is a component of the U.S. Department of Justice. The office supervises and conducts federal government litigation in the Supreme Court. The U.S. government is involved in about two-thirds of all cases the high court decides, according to the Justice Department. The current solicitor general is Elizabeth Prelogar.
The lawsuit addresses alleged violations of the False Claims Act (FCA) and the anti-kickback statute. FCA cases often hinge on the question of patient eligibility for hospice care based on a six-month terminal prognosis. The Bethany case centers around a qui tam complaint. This occurs occurs when a whistleblower, called a “relator” by the courts, files a False Claims Act suit on behalf of the government and possibly receives a portion of any funds recovered by the government via the lawsuit, typically ranging from 15% to 25%.
Lower courts rejected the case, citing a lack of specific dates or amounts of alleged improper payments. The claim reportedly also failed to identify any of the patients involved, the court determined.
The Bethany case is the second hospice fraud complaint brought to the Supreme Court’s doorstep this year. In February, the court declined to hear an FCA case involving the hospice provider Care Alternatives. In United States ex rel. Druding v. Care Alternatives, the Third Circuit Court of Appeals had ruled that when a reasonable difference of opinion occurs between physicians concerning a hospice patient’s prognosis, it can be resolved by a jury.
In Jan. 2021, the U.S. Department of Treasury reported that enforcement efforts had recovered more than $3 billion during the previous fiscal year from False Claims Act cases. About 2.6 billion of those dollars stemmed from lawsuits involving the health care industry, including hospice organizations.
A Feb. 2021 report from Bass, Barry, and Sims shows that a leading cause of fraud involves hospices billing Medicare for services for which patients were not eligible. This resulted in several multi-million dollar settlements during 2020, with amounts ranging from $1 million to $5.25 million.
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