Legal Newsline

Wednesday, December 11, 2019

CMS file could help whistleblowers target skilled nursing facilities

By Karen Kidd | May 23, 2016


BALTIMORE (Legal Newsline) – Potential whistleblowers now have a Public Use File full of data on Medicare claims and payments involving skilled nursing facilities to consider for future cases, attorneys in that field say.

The Public Use File of data became available in March when the Centers for Medicare & Medicaid Services, in an effort to make it easier for its Recovery Audit Centers and other government auditors to do their jobs, issued the data file.

The idea was that government auditors using the Public Use File could more easily identify skilled nursing facilities that bill Medicare for patients and residents who receive therapy at rates higher than at other such facilities.

"Plaintiffs’ attorneys don’t ordinarily know where to even look for a good case," Brian McGovern and Aaron Buchman, both attorneys based in New York City, said in a joint email to Legal Newsline.

"So it’s hard to go out and recruit whistleblowers to serve as False Claims Act plaintiffs. Now with the PUF, a plaintiffs’ attorney can target the SNFs they deem most likely to make suitable defendants."

That, McGovern and Buchman said, will result in future lawsuits.

"We expect plaintiffs’ attorneys will target the SNFs with a strong pattern of near-threshold billing and substantial Medicare dollars billed for many therapy patients," the two said.

"With the PUF, plaintiffs’ attorneys could focus on recruiting current or former employees and contractors of these particular SNFs as whistleblowers, to provide the details and facts needed to file a False Claims Act suit."

McGovern is a partner and Buchman is an associate with Cadwalader in New York City.

The Centers for Medicare & Medicaid Services' title for the Public Use File is "Medicare Provider Utilization and Payment Data: Skilled Nursing Facilities".

Though intended for government auditors, the Public Use File is providing a wealth of information for potential plaintiffs, McGovern and Buchman said. It is information that would have been difficult to come by during more traditional research without violating various medical privacy laws, such as those spelled out in the Health Insurance Portability and Accountability Act of 1996, McGovern and Buchman said.

"This data could not have come from any other source than CMS," the two attorneys said. "It provides a unique overview of all SNFs that no one whistleblower could furnish. And if a whistleblower provided data from their SNF to a lawyer, that would likely run afoul of HIPAA (the Health Insurance Portability and Accountability Act of 1996), since an SNF’s data would not necessarily be sanitized – or 'de-identified' – of personal information ...  like the CMS data."

The CMS Public Use File contains a wide variety of information on Medicare claims and payments to skilled nursing facilities in 2013, in addition to their practices, including Resource Utilization Groups scores and other data about the facilities rehabilitation residents' billing.

The Public Use File provides government auditors and FCA attorneys interested in filing civil suits on behalf of the U.S. government the data to identify errant skilled nursing facilities, McGovern and Buchman said.

"The PUF just shows that certain SNFs arguably have a suspicious pattern in their bills," the two said. "In any given case, that pattern could just be a coincidence, explained by innocent facts. And if the pattern does indicate problematic practices at an SNF, any of several practices could be the culprit: billing for services that were never provided, inaccurate or rounded reporting of therapy services, or unnecessary treatment being prescribed or provided to meet the RUG (Resource Utilization Group) billing thresholds."

The Public Use File probably will result in more effective recruitment of whistleblowers and more False Claims Act litigations being filed, McGovern and Buchman said.

"But each SNF is the best judge of its own situation," they said. "As the PUF shows, there’s a lot of variation among SNFs. Some SNFs never or rarely provide ultra-high and very-high levels of therapy in the first place, and are unaffected by the PUF. Other SNFs do provide a lot of intensive therapy, but have no pattern of near-threshold billing and thus don’t have a target painted on them by the PUF."

That won't be true for skilled nursing facilities with patterns of near-threshold billings and other problems, McGovern and Buchman said.

"For SNFs that do show a 'suspicious' pattern, CMS has certainly laid groundwork for plaintiffs’ lawyers to start looking for whistleblowers," they said. "But again, that doesn’t mean there’s actually been a false claim, and does not necessarily mean any particular SNF will face litigation."

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Organizations in this Story

Centers for Medicare and Medicaid ServicesCadwalader Wickersham and Taft