Focus on Nursing Homes |
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Nursing
Home Fraud And Abuse: |
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by Sandra Wilson Cherry |
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Early on an August morning in 1995, Augusta Gray was found on a gravel road outside the
Arkansas nursing home where she lived. Curled in a fetal position, Mrs. Gray had a deep
wound on her forehead, and various cuts and bruises. The nursing home's Director of
Nursing, along with an aide, brought Ms. Gray inside to her room where they changed her
clothing and placed her in her bed. An ambulance then transported Ms. Gray to a nearby hospital, along with an incident report prepared by the Director of Nursing. The report falsely reflected Ms. Gray had fallen in her room and struck her forehead on a night stand. Hospital personnel bandaged her wound and returned her to the nursing home without x-rays or a physical examination having been performed. Less than 24 hours later, Ms. Gray was found dead. Thus began a four year conspiracy between the Director of Nursing and the nursing home's Administrator to conceal the circumstances surrounding Ms. Gray's death from inspectors from the Arkansas Long Term Care Office which investigates complaints on behalf of the U.S. Health Care Finance Administration (HCFA), the agency which certifies nursing homes for the receipt of Medicare and Medicaid funds. In addition to the false incident report, the two prepared other fraudulent documents which were submitted to regulators, including a chart which falsely reflected Ms. Gray had been monitored throughout the night prior to her death. The pair were interviewed twice by agents of the FBI and a state police detective. During both interviews they maintained the false story they had created to explain their patient's death. |
The Administrator and Director of Nursing were charged with and convicted of conspiring to
defraud HCFA. Both were sentenced to 18 months imprisonment. The objects of the conspiracy
included giving false statements to HCFA and the Federal Bureau of Investigation in
violation of 18 U.S.C. 1001, and impeding and obstructing a health care investigation, a
violation of 18 U.S.C. 1518. This is one of two cases of its kind brought by federal
prosecutors in Arkansas to date. In a similar matter, a nurse was recently convicted for
causing a nurse under her direction to falsify certification for machines which test for
blood sugar levels. In 1996, Congress substantially increased the arsenal of criminal statutes available to federal prosecutors in addressing health care fraud. Nevertheless, statutory means by which wrongdoing in nursing homes can be prosecuted, either civilly or criminally, remain limited. No federal means is available to address directly even the most flagrant physical abuse, even death, in a nursing home. Only when fraud occurs, either in reporting to regulators, as in the case described above, or in filing false claims for services provided to residents, can such wrongdoing in nursing homes be addressed. The most substantial weapon provided by Congress to the Department of Justice in its pursuit of nursing home fraud and abuse is the health care fraud statute, 18 U.S.C. 1347. Section 1347 provides that whoever executes or attempts to execute a scheme to defraud |
a health care benefits program
faces upon conviction a sentence of imprisonment up to ten years, and, in a case where
bodily injury or death result from the fraud, a sentence of up to 20 years to life. The False Claims Act, 31 U.S.C. 3729, et seq., provides civil sanctions, including treble damages, for fraudulent claims filed with federal agencies. Thus, nursing homes filing false claims with Medicare and Medicaid for care provided to elderly residents can be substantially punished. When filing such claims, nursing homes are certifying that adequate care was provided to the patient recipient. If Ms. Gray's nursing home had filed a claim for her care during the 24 hour period from when she was found on the road until she died, the claim could come within the purview of the Act. The False Claims Act would most frequently apply, however, to cases in which substandard, indeed, grossly inadequate care is provided to a nursing home resident over a period of time. The Department of Justice and the Federal Bureau of Investigation, working in concert with the Inspector General for the U.S. Department of Health and Human Services, have substantially increased their resources in recent years to buttress their investigation of fraud and abuse occurring in connection with nursing home care for our elderly. In Arkansas, the United States Attorneys have joined with the Arkansas Attorney General to investigate nursing home wrongdoing and to prosecute such criminal activity both civilly and criminally in federal courts, when warranted. |
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