United States District Court, N.D. Texas, Dallas Division
UNITED STATES OF AMERICA, ex rel. MISTY WALL, Plaintiff,
VISTA HOSPICE CARE, INC. d/b/a VISTACARE, and VISTACARE, INC., Defendants.
MEMORANDUM OPINION AND ORDER
BARBARA M.G. LYNN CHIEF JUDGE.
the Court is a Motion for Reconsideration of Order Granting
Motion for Summary Judgment [ECF #420], filed by Relator
Misty Wall. For the reasons stated, the Motion is DENIED.
a qui tam case brought by Relator against Defendants
Vista Hospice Care, Inc. and VistaCare, Inc., on behalf of
the United States for alleged violations of the False Claims
Act (“FCA”), 31 U.S.C. §3729, et
seq., in connection with Medicare Hospice Benefit
(“MHB”) reimbursement claims submitted by
Defendants between 2003 and 2012. Relator alleges that
Defendants violated the FCA by: (1) causing patients who were
not eligible for the MHB to be certified as eligible and then
submitting reimbursement claims for ineligible patients; (2)
falsely certifying compliance with the Anti-Kickback Statute,
42 U.S.C. §1320a-7b(b)(1-2); and (3) terminating
Relator's employment in retaliation for her complaints
that Defendants were committing Medicare fraud. On May 6,
2016, the Court held a hearing on several motions, including
Defendants' motion for summary judgment. For the reasons
stated on the record at the May 6, 2016 hearing, as well as
the reasons set forth in a Memorandum Opinion and Order dated
June 20, 2016, see United States ex rel. Wall v. Vista
Hospice Care, Inc., 2016 WL 3449833 (N.D. Tex. Jun. 20,
2016), the Court granted Defendants' summary judgment
motion as to all of Relator's claims and causes of
action, except her claim for retaliation.
Relator advised the Court that she desired to appeal the
summary judgment order, the Court directed the parties to
attend mediation. On September 1, 2016, Relator and
Defendants mediated their dispute and settled Relator's
retaliation claim, subject to certain conditions, including
that the Court agree to stay the litigation for six months.
The parties subsequently filed a Stipulation of Dismissal,
dismissing with prejudice Relator's retaliation claim,
and the Court entered an Order staying the case through
February 28, 2017.
March 1, 2017, Relator filed her Motion for Reconsideration
on the ground that she has discovered new evidence that is
relevant to her claim that Defendants violated the FCA by
submitting MHB reimbursement claims for ineligible patients.
Specifically, Relator asserts that, on or about November 15,
2016, her counsel discovered a September 20, 2016 press
release issued by the Office of Inspector General for the
Department of Health and Human Services (“OIG”),
describing a $3 million penalty levied against Kindred Health
Care, Inc. (“Kindred”), the parent and successor
of the Defendant entities in this case. The press
release, entitled “HHS's Office of Inspector
General Levies Largest Penalty under a Corporate Integrity
Agreement against Nation's Biggest Provider of Post-Acute
Care, ” states in its entirety:
Kindred Health Care, Inc., the nation's largest provider
of post-acute care, including hospice and home health
services, has paid a penalty of more than $3 million for
failing to comply with a corporate integrity agreement (CIA)
with the Federal Government, Department of Health and Human
Services' Inspector General Daniel R. Levinson announced
It is the largest penalty for violations of a CIA to date,
the Office of Inspector General (OIG) said.
The record penalty resulted from Kindred's failure to
correct improper billing practices in the fourth year of the
five-year agreement. OIG made several unannounced site visits
to Kindred facilities and found ongoing violations.
“This penalty should send a signal to providers that
failure to implement these requirements will have serious
consequences, ” Mr. Levinson said. “We will
continue to closely monitor Kindred's compliance with the
OIG negotiates CIAs with Medicare providers who have settled
allegations of violating the False Claims Act. Providers
agree to a number of corrective actions, including outside
scrutiny of billing practices. In exchange, OIG agrees not to
seek to exclude providers from participating in Medicare,
Medicaid, or other Federal health care programs. CIAs
typically last five years.
In this case, CIA-required audits performed by Kindred's
internal auditors in 2013, 2014, and 2015 found that the
company and its predecessors had failed to implement policies
and procedures required by the CIA and that poor claims
submission practices had led to significant error rates and
overpayments by Medicare.
Kindred was billing Medicare for hospice care for patients
who were ineligible for hospice services or who were not
eligible for the highest level and most highly paid category
of service, OIG said.
The Medicare hospice benefits covers services for
beneficiaries with terminal illnesses who have life
expectancies of six months or less. When patients elect
hospice, they agree to strop receiving curative treatment and
in its place receive palliative care. Benefits are largely
for pain relief, respite care and grief and loss counseling
for the patient and the ...