Lemon et al v. Nurses To Go, Inc. et al

Filing 42

OPINION on Dismissal. Lemon and the other relators have alleged laziness, bungled paperwork, and mistakes that were corrected. None was material. Nurses To Go might be managed haphazardly, but the relators' claims do not rise to the level of alleging fraud. This case will be dismissed with prejudice. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

United States District Court
Southern District of Texas

United States of America,
Deborah Lemon, et al.,

ct

rcl.,

Plaintiffs,
'Versus

Nurses To Go, Inc., et al.,
Defendants.

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ENTERED
April 20, 2018
David J. Bradley, Clerk

Civil Action H-I6-177S

Opinion on Dismissal

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Background.
F our people who used to work at a hospice claim that it submitted false

claims for payment to the government. Deborah Lemon was an administrator
and supervising nurse. Laverne Fowler was a nurse and administrator. Eric
Castillo and Sarah Diaz were file clerks. They worked for the hospice Nurses To
Go, Inc. In November of 20r 5, Lemon, Fowler, and Diaz resigned. Castillo was
fired.
Walter F. Crowder is the president and director of Nurses To Go and the
other hospices, A *Med Health, Inc., T ejas Quality Home Health, Inc., A *Med
Community Hospice - Austin, Inc., A *Med Community Hospice - San
Antonio, Inc., DPMAlliance Hospice Agency, LLC, andAmor Home Health, Inc.
Title r 8 of the Social Security Act establishes, among other things,
government-subsidized insurance for disabled and elderly Americans. I Medicare
says that a hospice is supposed to certify that a patient is qualified for its care expected to live for six or fewer months - when he is admitted, go days after he
is admitted, and then every 60 days. A physician or nurse practitioner is
supposed to meet with the patient in person within r 80 days and then every 60

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See 42 U.S.c. §I39S, et seq.

days. The physician must write a plan of care, review it regularly, and treat the
patient accordingly.
Medicare pays for different levels of care at different rates. The levels are
general inpatient care, inpatient respite care, routine home care, and continuous
home care. The most expensive of these is continuous home care, intended for
short-term emergencies when the patient is in his own home.
The relators describe several particular patients and what was wrong in
each case. The problems include missing certificates, missing narratives, and not
enough face-to-face meetings with a physician.
The relators also say generally that Nurses To Go admitted patients who
did not qualify for hospice care. They give no other data about these people.
Lemon had been hired to audit Nurses To Go in May of 201 5. She says
that she and Diaz discovered that Nurses To Go was backdating certificates and
having nurses, not physicians or nurse practitioners, write the supporting
narratives for them. The nurses were meeting the patients face-to-face, which
physicians were supposed to do. When Lemon audited the patient charts, she
saw that the charts either had no plan of care or a generic plan of care that was
never updated. The actual care was not the same as the written plan.
On finding the certification problems, Lemon told Crowder, the medical
director, and the other administrators. She said that Nurses To Go should tell
Medicare that it had not certified patients regularly, like it was supposed to.
Crowder said no.
Lemon says that Nurses To Go was using 72 hours of initial continuous
care as a marketing gimmick. She explained to her coworkers and bosses that
continuous care was meant for emergencies only. As a result, Nurses To Go
reduced its continuous care hours from an average of 323 per month to six. A
company marketer kept telling prospective patients that they could have initial
continuous care, and Lemon kept correcting her.
In October of 2015, an administrator met with several people, none of
whom is a relator in this case. Supposedly, the administrator was trying to
convince them to bill more continuous care hours. The people at the meeting did
not think that was lawful. As a result, several people at Nurses To Go resigned,

including Lemon, Fowler, and Diaz. Lemon says that she heard about Crowder's
other companies' billing for unnecessary continuous care hours and saw that
they were billing for hundreds of hours per month.

Other Hospices.

2.

Lemon, Fowler, Castillo, and Diaz worked only for Nurses To Go. They
do not know what A*Med Health, Tejas, A*Med - Austin, A*Med - San
Antonio, DPM, and Amor were doing. They might have heard rumors but that
is the extent of their knowledge. The claims against A *Med Health, T ejas,
A *Med - Austin, A *Med - San Antonio, DPM, and Amor will be dismissed.

Nurses To Go.

3.

The relators claim that Nurses To Go and Crowder violated the False
Claims Act by knowingly: (I) making a fraudulent claim for payment,2 (2)
making a false statement material to a false claim, 3 and (3) avoiding an obligation
to pay the government. 4 For each theory, what was false must be material. S

A.

Patients.

The assertion that Nurses ToGo was admitting patients who did not
qualify for hospice care is too vague. We do not know why they did not qualify,
how many of these patients were admitted, or in whose opinion they did not
qualify.
Lemon says that Nurses To Go admitted patients who were already dead.
A hospice is probably obliged to admit them to make sure they are dead. The

231 u.s.c. §3729 (a)(I)(A).

3 U.S.c. §3729 (a)(l) (B).
31
431 U.S.c. §3729 (a) (I) (G).

sUni1!crsal Hcalth Scroiccs, Inc.,
(2016).

1!.

Unitcd Statcs, el rel. Julio Escobar,

ct

al., 136 S.Ct. 1989

hospice's continuing to treat the corpses might be a problem, but nothing
suggests that that happened.
Nurses ToGo did not certify its patients regularly and with supporting
narratives. Its plans of care were sometimes nonexistent, sometimes generic, and
sometimes written by a nurse instead of a physician. Patients did not meet face;
to;face with a physician as regularly as they were supposed to.
Lemon has not alleged that these patients did not belong in a hospice or
that they were not properly treated. She has alleged that Nurses To Go managed
its paperwork poorly and did not adhere to the prescribed schedule. Certificates
that patients qualify for hospice care, individualized plans of care, and regular
face;to;face meeting with a physician are not material for a claim of fraud;
however, Nurses ToGo should have done them. Whether the patients actually
qualified and whether licensed physicians and nurses cared for them might be
material. Laziness - not inadequate care - seems to be the problem here.

B.

Continuous Care.

Nurses To Go had been giving new patients continuous care regardless
of status. Lemon told the other people who worked there that continuous care
was for emergencies only. The number of hours billed dropped dramatically. A
marketer was still doing the old thing of selling prospective patients on
continuous care. An administrator supposedly wanted the same thing. People
quit.
Lemon solved the problem. Once she explained the purpose of
continuous care, Nurses To Go reduced its use. One marketer seems not to have
followed the new plan. We do not know whether the administrator succeeded
in convincing the Nurses To Go personnel to use continuous;care hours as a
marketing scheme. All we know is that the people to whom he suggested it were
so resistant to his idea that they quit.

C.

Avoiding Obligations.

Lemon says that Nurses To Go should have told Medicare that it had not
kept up with the certificates, had loosely approached plans of care and sent

nurses to conduct the physician's in-person meeting, and had given patients
continuous care who did not need it. Reporting these errors might have been the
most prudent course of action, but not reporting them does not necessarily mean
that it committed fraud.
Even if Nurses To Go had reported its mistakes, it is unlikely that it
would have had to reimburse the government. Its imprecise approach to
certificates, written plans of care, and whether a nurse or a physician met with
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a patient on schedule were not material to payment.
Nurses To Go had been administering continuous care to patients who
did not need it, but it did in fact administer continuous care. This is not a case
where Nurses To Go was billing routine care as though it were continuous care.

4.

Conclusion.
Lemon and the other relators have alleged laziness, bungled paperwork,

and mistakes that were corrected. None was material. Nurses To Go might be
managed haphazardly, but the relators' claims do not rise to the level of alleging
fraud.
This case will be dismissed with prejudice. Deborah Lemon, Laverne
Fowler, Eric Castillo, and Sarah Diaz will take nothing from Nurses To Go, Inc.,
Walter F. Crowder, A *Med Health, Inc., Tejas Quality Home Health, Inc.,
A *Med Community Hospice - Austin, Inc., A *Med Community Hospice - San
Antonio, Inc., DPMAlliance Hospice Agency, LLC, and Amor Home Health, Inc.
Signed on April 20 ,2018, at Houston, Texas.

United States DistrictJudge

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