By Nick D’Ambra, Elder & Disability Law Clinic Student, Fall 2020
Elder Abuse and Its Prevalence in Skilled Nursing Facilities
The decision to admit a parent to a skilled nursing facility (a “SNF” or “nursing home”) is not an easy one because even if a senior’s need for 24-hour care is clear following physical or cognitive decline, the move to a SNF inevitably limits that senior’s personal autonomy. Making that decision even more difficult are headlines documenting the prevalence of elder abuse in nursing homes across the country. According to the World Health Organization, 1 in 6 seniors living in nursing homes was a victim of elder abuse between 2017 and 2018. The National Council on Aging defines elder abuse broadly to include physical abuse; sexual abuse; emotional abuse; confinement; neglect; willful deprivation of food, medicine, care, or other assistance; and financial exploitation. That abuse not only traumatizes the victim, impacting his or her mental health, but that trauma also leads to further deterioration of the victim’s physical health. To address this issue of growing concern, the U.S. Department of Justice (the “DOJ”) launched its National Nursing Home Initiative (the “Initiative”) in March 2020. This post explains the DOJ’s efforts through the Initiative, how those efforts can be carried out under the False Claims Act, and the important role that whistleblowers play in carrying out the Initiative.
Brief Overview of the National Nursing Home Initiative
In a press release announcing the Initiative, the DOJ stated its goal to “coordinate and enhance civil and criminal efforts to pursue nursing homes that provide grossly substandard care to their residents.” To identify those nursing homes providing “grossly substandard care,” the DOJ considers various factors, including (1) inadequate staffing; (2) failure to comply with hygiene and infection control protocols; (3) failure to provide sufficient amounts of food to avoid residents becoming emaciated or weak; (4) withholding of medication; and (5) the use of physical or chemical restraints to control resident behavior. In addition, the DOJ considers the physical condition of residents’ living quarters as nursing homes across the country subject residents to mold exposure and other dangerous living conditions. That is, if a SNF does any of the previously listed things, then the care that it provides to residents is “grossly substandard.” While the DOJ stipulates that the Initiative focuses on the worst of the worst nursing homes in the country, it also states that the Initiative is part of the DOJ’s larger effort to protect senior citizens seeking long-term care.
Enforcement under the False Claims Act and the Role for Whistleblowers
The False Claims Act. To carry out its efforts under the Initiative, the federal government can proceed against nursing homes under the False Claims Act for providing grossly substandard care to their residents. The False Claims Act is a fraud-based theory of elder abuse. That is, the federal government requires SNFs to meet certain requirements in order to receive payments from Medicare and Medicaid for services provided to their residents. Once a SNF meets those requirements, it can bill Medicare and Medicaid for services provided to recipients under each respective program. However, if the SNF bills Medicare or Medicaid for services that were unnecessary or for services that the patient never received (“false” services), then the SNF has violated the False Claims Act by making a material misrepresentation to the government when it asserted a right to payment where none existed.
The Initiative falls within the False Claims Act’s purview because the factors that the DOJ considers to determine if a nursing home provides “grossly substandard care” to its residents are “false” services covered by the False Claims Act. That is, when a SNF bills Medicare or Medicaid, it is billing for (1) providing adequate nursing staff; (2) complying with hygiene and infection control protocols; (3) providing sufficient food; (4) administering medication; and (5) providing real assistance rather than using physical or chemical restraints to control resident behavior (i.e., the inverse of the factors that the DOJ considers to identify grossly substandard care). Therefore, when a SNF bills Medicare or Medicaid to be paid for providing skilled nursing services while it is in violation of one of the DOJ’s factors, it bills for services that it didn’t provide – it bills for “false” services.
To simplify, when a SNF sends a bill to Medicare or Medicaid, it says “We provided skilled nursing services according to Medicare/Medicaid certification standards, so we have a right to be paid.” If the SNF violates one of the DOJ’s factors, however, then it made a false statement when it asserted a right to payment because it didn’t meet the required certification standard in its provision of skilled nursing services. Therefore, because the SNF didn’t actually provide that service, it asserted a right to payment where none existed and committed fraud against the government.
Whistleblowers are crucial in the DOJ’s effort to pursue SNFs under the False Claims Act. Acting as a whistleblower, individuals can bring qui tam suits against a SNF that does not provide adequate services to its residents. In a qui tam suit, the concerned individual brings the suit against the SNF, but does so on behalf of the government. If the suit is successful, then the government recovers from the SNF and the whistleblower gets a piece of the government’s recovery. In this way, individuals that interact with SNFs are essential to the Initiative’s success because without them, the government might never learn of the SNF’s fraudulent behavior.
Other Means of Enforcement. Outside of civil liability under the False Claims Act, SNFs may face federal criminal liability under health care fraud, mail and wire fraud, and anti-kickback statutes for providing grossly substandard skilled nursing services to their residents. In addition to federal civil and criminal liability, the DOJ states that it supports state and local prosecutors and law enforcement in their efforts to combat elder abuse under state laws.
Beyond the loss of autonomy that seniors experience when they receive 24-hour skilled nursing care, headlines documenting the prevalence of elder abuse in nursing homes throughout the country do anything but make the decision to admit a parent to a SNF any easier. To address elder abuse in SNFs as an issue of ongoing concern, the DOJ launched the Initiative to pursue civil and criminal action against SNFs that provide grossly substandard care to their residents. To do so, the DOJ considers a variety of different factors. If a SNF does not provide one of the required services under the DOJ’s evaluative criteria while receiving Medicare or Medicaid funding, it violates the False Claims Act. Crucial to enforcement of those False Claims Act actions are individual whistleblowers who can bring qui tam suits against the SNF on behalf of the government and share in the recovery. In addition, a SNF providing grossly substandard care to its residents may also face federal criminal liability or liability under applicable state law.