The massive days of long-term care in courtroom

Kimberly Marcellas

Many writers have worked for McKnight’s in its 42-year history, and in that time we’ve all covered our share of spectacular and spectacularly ugly lawsuits.

But I daresay there hasn’t been a more active season for skilled nursing than the current Supreme Court session.

In recent weeks, we have seen the court hear two important cases that affect providers’ ability to protect themselves from certain legal challenges. Since October, we’ve also seen the court refuse to intervene in two other important nursing home cases, and shaped key decisions by refusing to intervene.

But I was excited to see the court this week pick up the case of Jesse Polansky, who claimed in 2012 that Executive Health Resources failed to properly bill for inpatient services. After a two-year investigation, the government deemed his case so unlikely to be won that it declined to join, and later attempted to get a lower federal court to dismiss the case outright.

Judges are weighing whether the government should be able to more easily ask courts to dismiss such cases, cases a lawyer told me judges often know are at best slight and at worst unreasonable health care cost drivers, after a hearing on Tuesday .

If you’ve been in nursing for a while, even if just a short time, you’ve seen how these cases end, especially since the plaintiffs can receive treble damages if they report suspected fraud.

Too often, operators are targeted by former employees or others who believe they can easily make money from alleged misdeeds. While some cases raise valid and real concerns, others smack of greed. Skilled caregivers couldn’t make the cases go away quickly and have spent millions on handling them to prevent further trials.

But the reputational and financial damage can linger long after the relator’s check is cleared.

And such cases have increased significantly since Congress expanded the scope of the False Claims Act in 1986, likely in hopes of reducing healthcare costs. Instead, over the past 35+ years, astronomical legal fees have been hit for qualified nurses, often targeting the use of therapies and many other areas of healthcare.

The federal government must take back the decades-old error made by Congress and raise the bar to allow these unrelated cases to continue. Here it means that the judges should accept the motion of the federal prosecutors and make it law. Let prosecutors who pre-screen cases have more say in weeding out the worst, least valid claims.

After all, that’s the least the court could do when it comes to balancing false claims with legal caution. Earlier in this session, they dealt vendors a blow when they decided not to hear arguments in three other False Claims Act cases. The appeals could have led to stricter standards for accusers. Now, as one lawyer described, healthcare providers must operate in “continued chaos” amid ongoing threats from all sides.

We should know by the end of the Supreme Court’s term this spring if any factor becomes a little less messy.

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