United States ex rel. Wall v. Vista Hospice Care, Inc.
| Decision Date | 20 June 2016 |
| Docket Number | No. 3:07-cv-00604-M,3:07-cv-00604-M |
| Parties | UNITED STATES OF AMERICA, ex rel. MISTY WALL, Relator, Plaintiffs, v. VISTA HOSPICE CARE, INC. d/b/a VISTACARE, and VISTACARE, INC., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court are Defendants' Motion for Summary Judgment [Docket Entry #235], Motion to Strike the Testimony of Dr. Kriegler [Docket Entry #229], and Motion to Strike the Testimony of Dr. Karl Steinberg [Docket Entry #232], as well as Relator's Motion to Strike the Opinion of Dr. Michael Salve [Docket Entry #246], Motion to Strike the Opinions of Drs. Bull and Hughes [Docket Entry #249], and Motion to Exclude Witnesses Pursuant to Rule 37(c)(1) [Docket Entry #254]. The Court held a hearing on the Motions on May 6, 2016. For the reasons stated on the record and in this Opinion, the Defendants' Motions to Strike the Testimony of Drs. Kriegler and Steinberg are GRANTED in part, the Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part, and Relator's Motions are DENIED as moot.1 Defendants also filed objections to Relator's summary judgment evidence [Docket Entry #336]. To the extent the objections are not addressed below, they are DENIED as moot.
Relator Misty Wall brings this qui tam action on behalf of the United States for alleged violations of the False Claims Act, 31 U.S.C. §§ 3729, et seq. ("FCA"), in connection with claims for the Medicare Hospice Benefit ("MHB"), between 2003 and 2012.
Defendants Vista Hospice Care, Inc. and VistaCare, Inc. ("the VistaCare entities" or "Defendants")2 provided hospice services in fourteen states during the relevant period, as to all of which Relator makes claims.3 Approximately 93% of Defendants' patients are Medicare beneficiaries.
Relator, a social worker employed at Defendants' Denton, Texas office from April 2003 until April 2005, claims Defendants violated the FCA by: (1) causing patients who were not eligible for the MHB to be certified as eligible, and then submitting claims for ineligible patients; (2) certifying compliance with the Anti-Kickback Statute ("AKS"), while engaging in schemes to pay kickbacks to promote hospice enrollment; and (3) retaliating against Relator for lawful acts taken in furtherance of the Relator's FCA claims. Relator claims such retaliation also violated the Texas Medicaid Fraud Prevention Act.
Relator filed suit on April 6, 2007 [Docket Entry #1]. The Court dismissed a number of Relator's claims, and Relator filed a Second Amended Complaint, asserting claims the Court had dismissed without prejudice [Docket Entry #58]. In light of new Fifth Circuit case law, the Court later granted Relator leave to reassert a claim previously dismissed with prejudice, andRelator filed a Third Amended Complaint [Docket Entry #81]. On July 23, 2012, the Court dismissed more of Relator's claims [Docket Entry #91].
On August 30, 2013, Relator and Defendants jointly moved for leave for Relator to file a Fourth Amended Complaint. Other relators—Elizabeth Lattanzi and Barbara Huffstetler (nurses who had been employed by Defendants' Montgomery, Alabama location)—had filed another suit against the VistaCare entities, for alleged FCA violations that occurred after Relator's employment by the Defendants ended. The parties signed an agreement, dated August 30, 2013, by which Lattanzi and Huffstetler agreed to dismiss their case, and Defendants agreed to allow Relator to file her Fourth Amended Complaint, extending the relevant period in this case to 2012, and not to challenge Wall's status as Relator for the extended time period [Docket Entry #260, at A20]. Lattanzi and Huffstetler are not parties to this case, but they have signed an agreement with Relator that entitles them, collectively, to 35% of any recovery in this case.
The MHB is a benefit under Medicare Part A, a 100% federally subsidized health insurance program. The MHB is administered by the Centers for Medicare and Medicaid Services ("CMS") on behalf of the Department of Health and Human Services ("HHS"). The MHB pays a predetermined fee, based on the type of care provided by the hospice provider, for each day an eligible patient receives hospice care.4
The government conditions reimbursement to providers of hospice services on certification of hospice eligibility.5 The MHB provides two 90-day benefit periods for eligiblepatients, followed by an unlimited number of 60-day benefit periods.6 At the end of each period, the patient can be recertified for hospice care if the patient still meets the requirements for eligibility.7 During the first 90 days, a hospice provider must obtain a written certification that the patient is "terminally ill" from (1) the hospice medical director or a physician in the hospice interdisciplinary group ("IDG"),8 and (2) the individual's attending physician (if any).9 For subsequent periods, certification of terminal illness may be from either the hospice medical director or a physician in the hospice IDG.10 The hospice provider is to obtain the written certification "at the beginning of the period,"11 and "must obtain the written certification before it submits a claim for payment."12 The regulations provide that "[i]f the hospice cannot obtain the written certification within 2 calendar days, after a period begins, it must obtain an oral certification within 2 calendar days and the written certification before it submits a claim for payment."13
A patient is terminally ill when "the individual has a medical prognosis that his or her life expectancy is 6 months or less if the illness runs its normal course."14 The attending physician and medical director must certify that the patient is terminally ill based on their clinical judgment of normal course of the patient's illness.15 16 The certification also must include a narrative description of the patient, and the certifying physician must "confirm[ ] that he/she composed the narrative based on his/her review of the patient's medical record or, if applicable, his/her examination of the patient."17
"[E]ligibility for hospice services under the [MHB] has always been based on the prognosis of the individual, not [the] diagnosis . . . ."18 The prognosis takes into account the diagnoses and all other things that relate to a patient's life expectancy.19 Thus, "the medical director must consider the primary terminal condition, related diagnoses, current subjective and objective medical findings, current medication and treatment orders, and information about unrelated conditions when considering the initial certification of the terminal illness."20
CMS recognizes that prognostication is "uncertain" and not "an exact science." In a Program Memorandum to Intermediaries/Carriers, CMS has stated:
Recognizing that prognoses can be uncertain and may change, Medicare's benefit is not limited in terms of time. Hospice care is available as long as the patient's prognosis meets the law's six month test. This test is a general one. As the governing statute says: "The certification of terminal illness of an individual who elects hospice shall be based on the physician's or medical director's clinical judgment regarding the normal course of the individual's illness." CMS recognizes that making medical prognostication of life expectancy is not always an exact science. Thus, physicians need not be concerned. There is no risk to a physician about certifying an individual for hospice care that he or she believes to be terminally ill.21
CMS has not created clinical benchmarks that must be satisfied to certify a patient as terminally ill. In 2008, CMS announced a rule specifying what a hospice medical director "must consider" in making an initial certification.22 CMS initially proposed a rule labeling considerations as "criteria," but removed that word, explaining:
In the proposed rule, we called [areas to consider] "criteria," and we believe that this term may have been the source of commenter concern. Our intent was to ensure that medical directors carefully examine all relevant information that is gathered about the patient before making this determination . . . . We have removed the term "criteria" in order to remove any implication that there are specific CMS clinical benchmarks in this rule that must be met in order to certify terminal illness.23
CMS guidance also states that a patient who stabilizes or improves may nevertheless remain eligible for hospice care.
[B]eneficiaries in the terminal stage of their illness that originally qualify for the [MHB] but stabilize or improve while receiving hospice care, yet have a reasonable expectation of continued decline for a life expectancy of less than 6 months, remain eligible for hospice care. The [hospice medical director] must assess and evaluate the full clinical picture of the Medicare hospice beneficiary to make the determination whether the beneficiary still has a medical prognosis of 6 months or less, regardless of whether the beneficiary has stabilized or improved.24
See also 75 Fed. Reg. 70372, 70448 (Nov. 17, 2010) (); 74 Fed. Reg. 39384, 39399 (Aug. 6, 2009) ().
CMS administers Medicare through Medicare Administrative Contractors ("MACs"), private companies that process and pay Medicare claims. MACs issue Local CoverageDeterminations ("LCDs"), which are "administrative and educational tools to assist providers in submitting correct...
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