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United States ex rel. Wall v. Vista Hospice Care, Inc.

United States District Court, N.D. Texas, Dallas Division

November 14, 2017

UNITED STATES OF AMERICA, ex rel. MISTY WALL, Plaintiff,
v.
VISTA HOSPICE CARE, INC. d/b/a VISTACARE, and VISTACARE, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          BARBARA M.G. LYNN CHIEF JUDGE.

         Before 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.

         Background[1]

         This is 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.

         After 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.

         On 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.[2] 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 today.
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 CIA.”
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 ...

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