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Federal prosecutors are looking to add criminal charges in fraud and
elder abuse cases brought against nursing homes and staff.
Photographer: David Paul Morris/Bloomberg
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The attoneys say the agency is seeking to “amplify” the work of its Elder Justice Initiative, which was launched in 2018 to protect the nation’s elderly. Federal prosecutors will be looking at potential criminal charges such as wire fraud and health-care fraud when they uncover false claims for government reimbursements of care.
News of the Justice Department’s push for criminal charges is likely to raise alarm bells among the nation’s more than 15,000 nursing homes. One industry trade group said criminal charges are not the way to correct what it said are rare cases of poor care.
The Justice Department’s civil division has historically used the False Claims Act to pursue nursing homes that bill the federal government for services not rendered or care that is grossly substandard, said Andy Mao, deputy director of the commercial litigation branch of the DOJ’s Civil Division who heads the Elder Justice Initiative.
But in egregious cases, criminal charges may also be warranted, federal prosecutors say.
“We need to go after cases civilly because they a providing grossly substandard care and, in the appropriate case, refer it for a parallel criminal prosecution,” said Toni Bacon, an associate deputy attorney general.
“As America’s aging, it’s becoming a larger problem and we need to be able on the federal side to identify who is the worst of the worst,” she said.
There were 15,600 nursing homes in the U.S. as of 2016, according to data from the Centers for Disease Control and Prevention.
Almost all of them, 95.2%, were authorized or certified to participate in Medicaid in 2016, according to data from the National Center for Health Statistics. Participation rates were similarly high for adult day services centers (76.9%), home health agencies (78.4%), and residential care communities (48.3%).
Medicare generally does not cover long-term care, making Medicaid the most common source of reimbursement for nursing home care.
Criminal Interest
If a provider bills the Centers for Medicare & Medicaid Services for services that are not rendered, that false representation is often made through the mail or online, creating the potential for not only a violation of the False Claims Act, but a criminal wire fraud charge as well, a DOJ official said.
“I think there has not been quite as much criminal interest, but I hope that’s changing,” the official said. “We are collaborating with the consumer protection branch, which has indicated that they are willing to explore what criminal angles there may be.”
The agency earlier this month brought criminal embezzlement, health-care fraud, and wire fraud charges against a Connecticut woman accused of stealing $150,000 from the trust accounts of residents at Bridgeport Health Care Center and Bridgeport Manor, two nursing and rehabilitation facilities.
Poor-quality care is a common problem in nursing homes with inadequate staffing levels and untrained staff, said Eric Carlson, directing attorney at Justice in Aging, a nonprofit legal advocacy organization that fights senior poverty.
“That’s where you see the bed sores and infections, the malnutrition and some of the other unfortunately common issues that arise in nursing facilities,” he said.
Carlson welcomes the DOJ crackdown on bad actors. The agency needs to be aggressive, he said.
“If something meets the standard for a criminal violation, it should be prosecuted as a criminal charge,” Carlson said.
Early Opposition
Not everyone agrees.
The American Health Care Association, which bills itself as the nation’s largest association of long-term and post-acute care providers, said instances of abuse, neglect, and fraud are rare and that “the overwhelming majority of nursing home staff provide high-quality resident care.”
“Criminalizing poor quality is not the answer,” David Gifford, AHCA’s senior vice president of quality and regulatory affairs and chief medical officer, said in a statement to Bloomberg Law.
The AHCA said it has been working with health-care providers and other interested parties to identify reforms that will “further improve the lives of America’s elderly, including policies that help facilities retain more high-quality staff, bring more transparency to abuse and neglect reporting, and provide consumers additional information to help them make informed decisions.”
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DOJ Crackdown on Nursing Homes to Include Criminal Counts
Criminal consequences for poor care SHOULD be criminal. Otherwise, the corporations making money off elders will continue to treat them as no more than revenue generators.
ReplyDeleteCriminalizing poor quality is the only solution, as it is meant to be a crime. CEOs collude with doctors to fo the bare minimum. They collude to transfer patients on time schedules that do not correspond with the patients health situstion but with maximum reimbursement. The LTACs and post acute hospitals even have marketing agents hanging out at acute care facilities where they review the assets and finances of prospective patients. One LTAC in particular prefers wealthy vent patients who they hold captive instead of deccanulating, even though they know the trach is not needed, because the T-bar is routinely knocked off and oxygen is not reaching the patient, and still the sats are 98 to 100% with a relaxed low heart rste of 69. Why would a facility turn the g-tube feeding off to turn a patient but every single time forget to turn it back on? Especially when the patient has a decubitus ulcer which needs good nutition to heal? It is intentional so they can farm DRGs for more problems for grester reimbursement. These hospitals are paying off all oversight agencies as well. The corruption extends into law enforcement, civic leaders and the courts as well. Lawyers are paid off not to take cases, or to stonewall the client, letting statutes run out and denying their Constitutional rights to expose this corruption. One of our first instances of this corruption was when CMS did a review of an infamous SNF facility where my Dad was staying. Even as the review team was there, the CEO cancelled our meeting with them, shipped my Dad out to an acute care facility after using the Liverpool Care Pathway on a healthy healing man. His doctor prescribed him 90 hydrocodone upon transfer, which was paid for by Dad's pt D ins with a warning letter stating that would be the last time they will give such high dosage, and so many pills to an elder. That is how we found out they were selling drugs on the side. Nobody knows what happened to the drugs, as my Dad didn't get any becase he didn't need any. Do you think CMS did anything with the complaint about what was going on at the SNF? No! Instead of sending him back there, their acute care business partner installed an unnecessary trach as punishment (not clinical need) and shipped him out to an infamous LTAC that used to take primarily vent patients until it was forced out of business and bought by another corporation which is equally as corrupt. I want to see all participating parties in prison. This behavior lead to my Dad's death, when he should have neen walking to the beach and taking family trips.
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