When it comes to Medicare hospice coverage, there are hundreds of Medicare and Medicaid conditions of participation that come into play. In the Second Circuit, violations of these conditions of participation do not trigger False Claims Act (FCA) liability. The New York State Legislature rejected such a limitation on FCA liability, when it enacted a law stating that all conditions of participation in the Medicaid program are conditions of payment. The end result of this legislation has been increased scrutiny of healthcare providers in the Empire State.

The most recent example involved a successful New York and federal False Claims Act qui tam action against for-profit hospice provider, Compassionate Care Hospice, Inc. In that case, the relator and plaintiff-governments alleged that Compassionate Care failed to treat hospice patients according to individualized plans of care, as required by 42 C.F.R.  § 418..56(a)(1). Ultimately the provider paid a hefty sum of nearly $5 million.

More information for whistleblowers is located at the Nolan Auerbach & White website.