Whistleblowers recently brought a False Claims Act lawsuit against Agape Senior Center of South Carolina, claiming Agape inappropriately certified patients for hospice and other services that were not medically necessary in order to receive payments from the federal government through Medicaid and Medicare programs. The whistleblowers worked at one Agape facility, but believe fraudulent activities have been carried out at other Agape facilities and would like to utilize statistical sampling to extend the case to include those additional facilities. In order to determine the approximate number of fraudulent acts across many facilities, a sampling of randomly selected claims would be analyzed. If a certain percentage of fraudulent claims were found to exist, that percentage would be projected to all claims submitted by Agape to the government.
A lower court ruled that statistical sampling could not be used in this case but the whistle blowers appealed the ruling. The case will be reviewed by the 4th U.S. Circuit Court of Appeals to decide if statistical sampling may be used to determine damages and penalties in the case.
The whistleblowers argue that using statistical sampling in false claims lawsuits is necessary due to the number of claims in question. The costs associated with a case this size are expensive and time consuming. Therefore, if cases such as this one are not allowed to use statistical sampling, tens of thousands of fraudulent claims may never be rectified.
The legal representatives for Agape argue that the reason the whistleblowers want to use statistical sampling is because they are entitled to a percentage of whatever the government is awarded. With over two-thirds of all federal whistle-blower lawsuits targeting the health care industry, industry groups representing medical providers assert that providers are already diverting too many resources away from providing patient care to defending themselves against false and meritless false claims cases.
In order for a claim to be fraudulent, evidence must prove that each allegedly false claim was objectively false and that the physician making the claim knew it was false. Advocates for Agape question if a court can determine whether or not a physician’s treatment decision was unreasonable in light of a patient’s medical condition, without analyzing and reviewing the patient’s documented medical history and other factors related to the doctor’s decision. Allowing whistleblowers to use statistical samplings, they say, would violate a provider’s fundamental due process rights to defend themselves against every claim while relieving whistleblowers of the burden of proof. Thus, providers could be found guilty of fraudulent acts based on statistical analysis and not on factual evidence.
Philadelphia Health Care Lawyers at Sidney L. Gold & Associates Represent Physicians and Medical Providers in False Claims Cases
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