The medical director for more than a dozen hospice providers in Mississippi supplied them with a steady stream of patients over the course of a decade, federal prosecutors said.
There was just one problem: Many of those patients weren’t dying.
Dr. Scott Nelson, a licensed physician from Cleveland, Mississippi, is accused of funneling patients to various hospices to help the owners defraud Medicare and Medicaid out of at least $15 million. A federal jury found him guilty of health care fraud after a two-week trial in the Northern District of Mississippi, the U.S. Attorney’s Office said in a news release on Tuesday, April 5.
Defense attorneys representing Nelson did not immediately respond to McClatchy News’ request for comment on April 6.
“Just to enrich himself, Dr. Nelson fraudulently prescribed hospice care for a steady stream of Medicare and Medicaid beneficiaries who he knew were not dying, ignoring the fact that under this end-of-life status they would not be eligible for curative services,” Special Agent in Charge Tamala E. Miles said in the release.
Mississippi Attorney General Lynn Fitch said the alleged scheme violated patients’ trust, adding they shouldn’t “have to worry about being pawns in a get-rich-quick scheme.”
Nelson was indicted in 2017 alongside three owners of the hospices for which he was the medical director. The four of them were accused of concocting and executing the alleged fraud scheme from at least 2005 until 2015.
According to the indictment, Nelson’s job was to certify patients for hospice at one of several facilities in the Mississippi Delta. The owners of those facilities are then accused of submitting fraudulent claims for reimbursement of services to Medicare and Medicaid on behalf of those patients.
Prosecutors said the hospice owners often brought three or four patients at a time to Nelson’s office in Cleveland, located about 120 miles northwest of Jackson, Mississippi.
“In almost all cases, the patients had no idea they were being placed on hospice and multiple patients testified at trial that Dr. Nelson did not explain hospice to them and did not tell them he was referring them to hospice care,” the U.S. Attorney’s Office said.
Nelson signed medical records on their behalf that allowed the hospice owners to bill Medicare and Medicaid for unnecessary medical care, prosecutors said.
The hospice owners received more than $15 million from the government based on his bogus patient referrals, according to the Justice Department. Prosecutors said Nelson was paid $442,000 in medical director fees from at least 14 hospice providers between 2009 and 2014.
All three of the hospice owners named with Nelson in the indictment pleaded guilty before his case went to trial on March 21.
Court filings show Nelson submitted a plea deal in 2019 that a judge later rejected.
According to the Mississippi State Board of Medical Licensure, Nelson’s medical license is still active. He is scheduled to be sentenced on July 27.
South Lake Tahoe resident Tracy Sellers recounts her mother's drug overdose while she was under home hospice care. Sellers filed a complaint claiming the hospice nurse brought painkillers that weren’t properly labeled and lacked written directions.
By Elaine Chen
One day after her 80-year-old mother started hospice care at home
last August, Tracy Sellers found herself racing into an emergency room,
pushing a wheelchair carrying her mother.
“The moment we got to the ER, she passed out, her
eyes rolled back, her face was white as a sheet,” Sellers said about
her mother.
“And her head rolled back, her face was rolled to the ceiling.”
“I grabbed her, and I said, ‘Mom, wake up. Wake up. Mom!’ ”
The nurse rushed over to look at her mother’s eyes, Sellers said. “Pinholes. They’re the size of pinholes.”
Hours later, with IVs pumping fluids in and out
of her, Sellers’ mother woke up. Sellers discharged her, signing papers
listing the reason her mother was admitted: “narcotic overdose.”
Two weeks later, Sellers filed a complaint with
the California Department of Public Health, claiming the hospice nurse
had brought to their home a bag of opioid painkillers that weren’t
properly labeled and weren’t accompanied with written instructions. She
said the nurse gave her verbal instructions that resulted in her
mother’s overdose.
Then she waited.
The department took 201 days to finish its
investigation. By the time it was done, concluding that the hospice did
not violate any regulations, her mother had died. Sellers said that no
one in the Department of Public Health formally interviewed her or
looked at the bag of painkillers she said was brought to the house by
the visiting hospice nurse.
In California, where the population is rapidly aging
and end-of-life care is on the rise, patient advocates and researchers
say the state’s oversight of hospice facilities and hospice care has not
caught up. Largely subsidized by federal money through Medicare,
hospice care consists of nurses entering hospitals, nursing homes or
patients’ homes to ease patients’ pain in their last months of living.
Interviews and documents reviewed by The
Sacramento Bee show a system marred by lax oversight and an inability of
regulators to take meaningful action against hospices that may have
violated rules and jeopardized the health of patients.
Many elderly patients are being transferred to
hospice care too quickly, advocates say, taking them away from remedial
treatment and costing Medicare more money.
The Department of Public Health has taken months,
and in some cases years, to investigate complaints filed for patients
who are meant to have six months or less to live.
When the department has investigated complaints
and found deficiencies, hospices are not fined, as the state has no
penalty system for hospices as it does for nursing homes.
Further, the majority of regular surveys of
California hospices are now conducted by private accreditation agencies.
Unlike nursing homes, hospices can pay the agencies to inspect them in
place of the state, posing what advocates claim is a conflict of
interest as the agencies have incentives to approve the hospices that
are paying them.
Tracy Sellers, a resident of Tahoe, holds a
picture of her mother in her home, Monday, August 5, 2019. Her mother,
Dolores Sellers was on hospice care and was allegedly given an overdose
of drugs administered by a hospice nurse in August of 2018. Later
Sellers died of natural causes in October of last year.
Daniel Kim
dkim@sacbee.com
The problems in California mirror what the federal Office of the Inspector General found last month in a report
outlining the ways hospices have not complied with federal guidelines.
The report found that nationwide, 87 percent of hospices surveyed
violated at least one federal guideline. Among the hospices surveyed in
California, the number was 94 percent.
The federal report found that hospice workers had left one patient’s pressure ulcers untreated, resulting in gangrene and a lower leg amputation,
while another patient in Missouri was discovered with a “maggot
infestation” where a feeding tube was inserted into his abdomen.
Patient advocates and researchers say they
recognize that the Department of Public Health has a wide mandate that
covers a state with 40 million people, but they believe hospice care
should not be overlooked. David Stevenson, a health policy professor at
Vanderbilt University, said that the people placed in hospice care are
exactly the ones that needs the most attention.
“Hospice agencies have escaped close scrutiny and
it’s hard to know why,” he said, “given the vulnerable population being
cared for.”
Sellers learned of that vulnerability when she
discharged her mother from the emergency room. She said the doctor told
her to stop giving her mother opioid painkillers, and instead switched
her to steroids.
“The doctor said, ‘Don’t give her morphine, it’s too strong for her. If you do that every single day, she’ll die.’ ”
A booming industry
California is on the cusp of a “silver wave.”
The California Department of Finance predicts that in 2033, there will
be twice as many Californians who are 80 or older as there are today,
and in 2043, there will be three times as many. This growth rate is
higher than that of any other age group in the state.
As the population ages, the number of people in
hospice care has increased. According to Centers for Medicare and
Medicaid Services, the number of hospice patients in California covered
by Medicare has increased 55 percent in 10 years, to about 71,000 people
in 2017.
With that, Medicare spending on hospice care in
California has skyrocketed, growing 99 percent in 10 years to reach $1.1
billion in 2017, adjusted for inflation.
Some advocates believe that the growing number of
hospice patients could also be attributed to elderly people being
transferred to hospice too quickly. Hospice care is meant for people
expected to live six months or less, as hospices provide comfort care to
ease patients’ pain and not remedial care intended to cure patients of
illnesses.
Tony Chicotel, a staff attorney with California
Advocates for Nursing Home Reform, said that people could be pushed into
hospices by hospitals and nursing homes, which may want to transfer
patients to hospice to lighten their workload, and in some cases, to
replace patients covered by public insurance with higher-paying
patients.
On the receiving end, hospices — particularly ones seeking profit — may be incentivized to admit patients who will stay longer.
A federal Inspector General report published last year
noted concerns about the current system of subsidizing hospices, in
which Medicare pays hospices for each day a patient is in their care.
The report showed that in an analysis of 2013 data, the median length of
stay for Medicare patients in for-profit hospices was nearly one month
longer than that for Medicare patients in nonprofit hospices.
Among the 1,413 hospices in California, 9 percent are nonprofit.
People working for hospices counter these
concerns. Sheila Clark, president of the California Hospice and
Palliative Care Association, a trade association representing hospice
workers, believes that patients are being transferred into hospice too
late.
She said that families of hospice patients tell
her they wished they had made the transfer to hospice sooner and that
patients are largely in hospice care for less than six months, noting
that in 2017, the median length of stay for Medicare patients in
California hospices was 31 days. Hospice doctors are also required to
regularly check in with patients to determine if end-of-life care would
continue to be appropriate for them.
Even for people with family members who are
certain to be terminal, though, the process of transferring family
members to hospice can still feel rushed.
Last December, Alexander Sheldon transferred his
mother, who was being treated for leukemia at O’Connor Hospital in San
Jose, to the care of Bridge Hospice, which is run by a limited liability
company.
He felt pressure transfer his mother, Sheldon said. “The hospital was pushing me as if my mother was being evicted.”
He also felt that the hospice misinformed him. A
representative from Bridge told him that his mother would be able to
continue taking her leukemia medication once she went on hospice, he
said. However, hospice nurses began giving her the medication only
several weeks after she got on hospice care, a few days before she died.
Tere Johnson, executive director of Bridge
Hospice’s Bay Area office, said that due to patient privacy laws, Bridge
cannot comment about Sheldon’s experience.
Sheldon said he is still frustrated when he
thinks back to the hospice representative’s early assurances, and how
they did not reflect that staff’s actual treatment of his mother: “There
was a disconnect.”
Long investigations
As the population of hospice patients has grown, oversight and regulations have lagged, advocates and researchers say.
One of the main ways the Department of Public
Health keeps track of hospice conditions is through investigating
complaints filed by patients, their family members or hospice staff —
which, in several people’s experiences, has not been done quickly or
thoroughly.
After Sellers’ mother experienced an overdose,
Sellers sought help from Carole Herman, an advocate at Foundation Aiding
the Elderly who helps families file complaints with the Department of
Public Health. Herman repeatedly called department officials to get them
to investigate Sellers’ claims that Barton Hospice’s nurse left opioid
painkillers in Sellers’ home that were not labeled properly or
accompanied with written instructions, and then gave verbal instructions
that resulted in an overdose.
Drugs given to Tracy Sellers sits on a table in
her home in Tahoe, Calif. Monday, August 5, 2019. Sellers claims the
drugs were given to her without proper labeling and without written
instructions.
Daniel Kim
dkim@sacbee.com
According to notes taken by Herman during her
calls, department officials offered the possibility that Sellers could
have been at fault by retrieving the drugs herself and throwing out
labels and instructions — a proposition that Sellers and Herman both
found perplexing. Herman kept calling, telling department officials to
go look at the drugs themselves and talk to Sellers, and they told her
they would.
Sellers said they never visited.
201 days after the complaint was filed, Herman
received a notice that the investigation was closed and the department
did not find a violation of any regulations.
When asked to comment, the department reiterated
the notice, saying “all the allegations were investigated through
observations, interviews, and record review. There were no regulatory
violations cited.”
Mindi Befu, director of public relations at
Barton, echoed the department’s statement, saying that “Barton Health
fully cooperated with the investigation.” Citing patient privacy laws,
Befu said Barton would not be able to share information about Sellers’
mother’s care.
The Department of Public Health appears to not
have the resources to investigate complaints quickly and thoroughly,
said Joyce McKee, whose mother was under hospice care with the Milpitas
office of VITAS healthcare in January 2017.
McKee attempted to file a complaint because, she
said, hospice staff arrived to care for her mother days after her
mother’s doctor requested them to come, and just several hours before
her mother died. Claudia Quintana, public relations director of VITAS,
said VITAS could not comment due to patient privacy laws.
McKee said that when she called the Department of
Public Health describing her mother’s situation and asking them to
investigate promptly, the department official “would tell me, ‘I want to
do all that, I just don’t have the humans to do all that.’”
“She doesn’t have the wherewithal,” McKee said. “They do the best they can but they are completely backlogged.”
The long period of time officials take to
investigate could affect the results of the investigation, said Charlene
Harrington, a UC San Francisco professor who researches elderly care
and used to work in the Department of Public Health.
Investigators with the department “often don’t
visit to investigate a complaint in a timely way, and then too often
it’s too late to verify things,” she said.
According to data from the department obtained by
The Bee, in the past ten years, the department has received 2,209
complaints and has investigated 89 percent number of them. Of the
complaints it has investigated, it has taken an average of 62 days, more
than two months, to begin investigations once complaints have been
filed.
Harrington noted that the amount of time the
department takes to begin investigations is not always an accurate
measure of the department’s promptness, because investigators may record
an early start date but not properly investigate until later.
Data from the department shows that to finish
investigations, the department has taken an average of 129 days, more
than four months. Seven percent of complaint investigations took one
year or longer to finish.
While the department has grown quicker with
investigating complaints — for example, for complaints filed in 2018,
the department took an average of 31 days to begin investigations and an
average of 86 days to finish them — the process is still slow compared
to existing policy for nursing homes, which requires the department to close nursing home investigations within 60 days.
Currently, the department is not required to finish hospice investigations within a certain number of days.
The department said it “has continued to improve
its timeliness for health facility investigations and is currently
implementing new systems to be able to investigate complaints more
efficiently.”
No fines, no reforms
When the state does investigate promptly and find
deficiencies, the hospice must submit to the state a plan it will
follow to correct its faults; however, it does not receive any fines.
Researchers and advocates say this means hospices don’t face an
effective form of punishment that would prevent them from continuing to
mistreat patients.
On the federal level, the only punishment that
hospices can receive is the extreme measure of being removed from the
Medicare program. Stevenson, a professor at Vanderbilt University, said
he believes that federal authorities should institute a penalty system
they can use to punish hospices while the hospices are still in business
and receiving Medicare subsidies.
In 2014, the daughter of a woman who died in the
care of Bristol Hospice in Roseville filed a complaint with the
Department of Public Health, claiming that under Bristol’s care,
pressure sores in her mother’s right leg were left unattended, and the
sores developed into sepsis and gangrene that ultimately caused her to
die.
While the department found that the hospice did violate regulations through its investigation, it did not issue any penalties.
Records from the Department of Public Health
obtained by The Bee show that Bristol Hospice continued to violate
regulations even after the department released results of its
investigation to Bristol. Eight subsequent complaints were filed by
patients’ family members and hospice staff. The department ruled in five
of them that Bristol had failed to properly train its staff as well as
update or follow treatment plans for patients — the same deficiencies
the department found in the daughter’s complaint.
As this was occurring,the daughter continued to pursue a lawsuit she had filed against Bristol soon after her mother died.
“Without a penalty system, Bristol had no fear
that its egregious failures in care would result in any interruptions of
the operations of this facility,” Dudensing said.
Bristol finally settled. Dudensing said that
during negotiations, the daughter demanded Bristol change ownership and
Bristol eventually agreed, selling its operations to a different company
before the final settlement was reached.
Bristol did not respond to multiple requests for comment.
In the hands of private agencies
Complaints are one way for the state to keep
track of hospice conditions, but complaints often do not fully reflect
issues in hospices.
“Some people don’t know that you can file
complaints at all,” Stevenson from Vanderbilt University said. “Most
likely people aren’t thinking about [filing a complaint] after their
loved one dies.”
The other key way the state keeps track of
hospice conditions is through regular surveys of hospices. To qualify
for Medicare subsidies, hospices must undergo surveys every three years.
States are tasked with conducting these surveys, but hospices have the
option of getting “accredited”: paying private accrediting agencies to
survey them in place of the state.
Data from the Department of Public Health
obtained by The Bee show that 63 percent of hospices in California are
accredited. Nationally, approximately 40 percent of hospices are
accredited.
Of all the hospices nationally that are accredited, more than one-third are in California.
Michael Connors, an elderly care advocate with
California Advocates for Nursing Home Reform, said that the Department
of Public Health has incentives to push hospices toward accreditation ,
as that “reduces [Department officials’] workload and saves them money
if they don’t have to go out and inspect facilities.”
That raises issues, Connors said, because
accreditation agencies, which are not required to release their survey
results publicly, can pose a conflict of interest.
“Accreditation agencies get their business from
these hospices and if they were to make findings and release the
findings to the public, the likelihood that hospices to do business with
them is very low,” he said. The agencies “rely on a friendly
relationship with the hospice entities, not the general public.”
Barton Hospice, whose care Sellers’ mother was under, is currently accredited with The Joint Commission, which has given Barton a “gold seal of approval.” Out of all the accreditation agencies, The Joint Commission surveys the greatest number of hospices in California.
Tracy Sellers, a resident of Tahoe, holds a picture of her mother in her home, Monday, August 5, 2019.
Daniel Kim
dkim@sacbee.com
Maureen Lyons, a spokeswoman for The Joint
Commission, said, “Our goal is to protect the public by identifying
deficiencies in care and having organizations correct those deficiencies
as quickly and sustainably as possible.”
Addressing the concern that accreditation
agencies’ inspections are not transparent to the public, Lyons said,
“While accredited organizations may choose to release their reports, The
Joint Commission provides them as confidential reports of our
surveyors’ standards deficiency findings for organizations to implement
corrections within a specific time frame.”
Lyons added, “Of all health care accrediting
organizations, The Joint Commission shares the most information with the
public,” noting that The Joint Commission uploads reports on survey outcomes online.
The Joint Commission’s reports rate hospices’
general care in comparison to hospices nationwide and statewide, but do
not show what regulations the hospices have violated, if any.
Hospice care is difficult
Hospice care can be one of the most taxing types
of care to provide and one of the most anxiety-inducing to see family
members experience.
“Due to the short length of stays, hospice
workers and the patients and families they serve are stressed with
decision-making in an already difficult time,” said Clark, president of
the California and Palliative Care Association.
Many advocates and researchers feel that especially because hospice is such a sensitive area of care, reforms need to be made.
“Hospices are rarely inspected,” Connors said.
“Most hospice inspections are conducted by private agencies that have
strong incentives to ignore poor care.”
“Nothing is done when serious violations are detected,” he continued, “and findings of neglect are covered up.”
People who have come to the difficult realization
that their family members are close to dying can often only find peace
of mind when they know that their family members will be able to enjoy
ease and comfort in their last periods of living.
“If somebody has eight weeks, or nine weeks, or
six months, I feel like [hospice staff] should be treating you with pain
until you pass away, they shouldn’t be overdosing you,” Sellers said
about her mother’s time in hospice.
“I feel like they don’t care if someone dies in hospice before their time,” she continued. “So I feel hurt that they did that.”
Cultural changes to family dynamics and demographics may require
hospices to adjust their care and business models to care for patients
who have no family support.
Since its inception, hospice has been centered on both the patient
and family, not only through providing services to the family but also
relying on them as an essential part of the patient care team.
Patients often lack caregivers due to outliving their relatives,
being childless, divorce, having no siblings, or changes in geographic
mobility. Few hospices can maintain round-the-clock care for patients in
their homes, thus a lack of family caregivers can contribute to
increased hospitalizations or nursing home admissions, as well as create
ethical and legal challenges. Many of these patients have limited
decision-making capacity and need assistance making health care choices,
including decisions regarding hospice enrollment.
A 2014 study
found that older adult patients without family support, often called
“unbefriended,” often do not enroll in hospice due to inadequate state
policies governing third-party medical decisions for these patients.
With 1.4 million patients in hospice care and approximately 4% of older
adults unbefriended, hospices can expect to see more of these patients
as the population ages and hospice utilization continues to rise,
according to the American Bar Association’s Commission on Law and Aging,
“Demographically we are going to have to keep thinking about this,”
said Katherine Ornstein, M.D., of the Icahn School of Medicine at Mt.
Sinai Medical Center in New York. “There is a lot that we don’t know
because I think the role of other relationships, friendships, outside of
the traditional family that support older adults in the community needs
to be studied a bit more, but I think that it is such an important
issue. We know how difficult it is for individuals who have devoted
family members, what about those who don’t?”
Different states have different mechanisms for how to care for
unbefriended patients; many have enacted public guardianship programs,
in which a state social services agency appoints an attorney to become
the patient’s legal guardian. The State of Indiana operates a Volunteer
Advocacy Program in which the attorney appointed as guardian assigns a
volunteer trained to make third-party health care decisions to the
patient.
However, these types of guardianships introduce a significant
potential for conflicts of interest that could lead to unnecessary or
undesired use of services by the person under guardianship. It also
could result in the denial of necessary services when cost cutting is
mandated, according to Alexia Torke, M.D., associate director, Indiana
University Center for Aging Research, Regenstrief Institute in
Indianapolis.
Encouraging referral partners and other health care providers in the
community to discuss advance care plans with patients can help prevent
later complications in medical decision making, allowing the patient’s
wishes to be documented before their decision-making ability becomes
impaired.
Early conversations are positively associated with decisions to limit
or withdraw life-sustaining treatments, fewer in-hospital deaths, fewer
unplanned hospital admissions, shorter hospital stays, satisfaction
with end-of-life care, and increased odds of receiving strong opioid
pain medications in the last 24 hours of life, according to a study in the March issue of the Journal of the American Medical Directors Association.
“All qualitative research exploring patients’ and family caregivers’
perspectives highlights that it’s up to health care professionals to
start these conversations,” Silvia Gonella, R.N., co-author of the
study, told Hospice News. “Unfortunately, this often does not happen,
for different reasons —lack of time, difficult topic that staff prefers
to avoid.”
Advance care planning ideally should begin as early as possible in
the course of the patient’s illness, before they reach a crisis. Formal
plans include documents such as advanced directives, living wills, and
physician orders for life sustaining treatment (POLST forms) that can be
entered into the patient’s electronic medical records. A key component
of these conversations is to identify a third-party, a friend or
relative or other representative, that the patient chooses to make
decisions on their behalf should they become incapacitated.
“When you have someone in this category who still has decision-making
capacity, it is important to get them to name someone who they would
like to oversee their care. Many times, in conversation, they are able
to name at least one close friend,” Torke told Hospice News.
In the absence of advanced planning, hospices may find themselves in
difficult situations with unbefriended patients. Torke noted that
patients with fewer social supports can often end up in acute care
situations and may not receive the right care at the right time. And
while hospice care can be given in long-term care facilities, patients
must often navigate complicated insurance stipulations. This could all
lead to higher medical costs and delayed enrollment in hospice.
“Hospices may be harmed a bit, but the person who really suffers is
the individual who is walking their last chapters. It is our fiduciary
responsibility to educate and provide resources. We need to understand
what the patient needs and act on that,” Tim Ihrig, M.D., chief medical
officer at Crossroads Hospice in Oklahoma City, said. “We have to
understand why these patients are so expensive. It’s not because they’re
old, unbefriended, and so on. [Their care] costs so much because of
what the health care system does to them that neither enhances their
quality of life or longevity.”
