A 6th Circuit Court of Appeals panel said Wednesday that the full court will not rehear a June 11 decision that revived a False Claims Act case against Brookdale Senior Living that had that originated in 2012.
“The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision,” the court said. “The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.”
Brookdale had requested the “en banc” hearing and was supported by friend-of-the-court briefs filed by the National Association for Home Care and Hospice and the Washington Legal Foundation.
A spokeswoman for Brookdale said the company had no comment on the court’s decision.
As McKnight’s Senior Living previously reported, plaintiff Marjorie Prather, a utilization review nurse at Brookdale, alleged that in late 2011, the company began having her review claims for home healthcare provided to assisted living residents without physicians having signed regulator-required documentation when they certified the need for home health services or as soon thereafter as possible. Brookdale did this, she said, to address a backlog of approximately 7,000 unbilled Medicare claims worth about $35 million.
Prather also claimed that Brookdale violated the False Claims Act by keeping reimbursements that she said would not have been paid had the government been aware of the company’s actions.
At issue now is whether the regulatory requirement related to the timing of the physician certifications is relevant in the False Claims Act case. A three-judge panel of the court said it is, because it is an “express condition of payment” and is “a mechanism of fraud prevention.” Brookdale, however, in a June 26 filing with the court, had noted that Prather did not provide any examples of cases in which the Centers for Medicare & Medicaid Services did not pay a claim because of the timing of physician certification.
Brookdale said that the panel’s June 11 decision conflicts with a 2016 Supreme Court decision, Universal Health Servs., Inc. v. U.S. ex rel. Escobar, and the decisions of other circuit courts and “hamstrings future Sixth Circuit panels and district courts by preventing them from considering the lack of allegations in a complaint, meaning that relators alleging minor or insubstantial regulatory violations will be able to survive motions to dismiss and force defendants to disprove materiality.”
