Bon Secours Health System Wants Claims In FCA Suit Tossed

Posted October 10th, 2018.

As It Appeared On
Law360

By Adam Lidgett

Law360 (October 10, 2018, 5:27 PM EDT) — Bon Secours Health System has urged a New York federal judge to grant it a quick win on most of the claims in a lawsuit filed by a former vice president of a now-closed program accusing the system of Medicare and Medicaid fraud.

Bon Secours moved for summary judgment Tuesday to toss most of the claims made under the state and federal False Claims Act by June Raffington, who was the Schervier Long-Term Home Health Care Program’s vice president of home care services. According to Bon Secours’ memorandum accompanying the motion — which was limited to the subject of materiality — the New York State Department of Health set up a long-term home health care program, or LTHHCP, to pay providers to give Medicaid beneficiaries long-term care in their own residences, and Schervier was a LTHHCP provider.

Bon Secours said Raffington can’t point to any evidence that would show if there was any “regulatory noncompliance,” and if the state DOH knew about it, the DOH would have denied payment claims made by Schervier.

“Relator has alleged that defendants violated New York Medicaid regulations and the FCA by billing in excess of anticipated patient budgets established by [local departments of social services], as well as by billing for services provided to patients who had not been approved by the [local departments of social services],” Bon Secours said. “But relator has developed no factual record that this alleged noncompliance would have mattered to the DOH’s decisions to pay Schervier’s claims.”

According to Bon Secours, the DOH offered its LTHHCP — which Bon Secours said was “a Medicaid waiver program” — for about 32 years, and the LTHHCP had to meet certain requirements to make sure the program’s cost would not be more than what it would be to provide its services in its absence.

The local social services departments were there to look at the forecast cost for the services provided to every possible Medicaid beneficiary who was taking part in the program, Bon Secours said. Those departments were tasked with signing off on enrollments if the beneficiaries’ “anticipated costs of care fell below certain limits,” according to Bon Secours.

In her sixth amended complaint, Raffington alleged that the defendants made false claims that caused millions of dollars to be paid by Medicaid and Medicare.

She also said the defendants tried to hide their alleged fraud and that she was fired after she brought up billing practices.

“Bon Secours violated important federal and state regulations for years,” Ross Brooks of Sanford Heisler Sharp LLP, an attorney for Raffington, said in a statement. “Their conduct was material and wrong and they knew it; that is why they wrongfully terminated our client when she tried to stop their forgery and cover-up scheme.”

Bon Secours said in a statement that it was told to brief the court on “the sole issue of whether or not the plaintiff’s allegations — if assumed to be true –— would have been material to the government’s decisions to either pay or deny any claims.”

“Bon Secours’ summary judgment motion demonstrates its strong belief that, nearly eight years after filing her complaint and after three years of fact discovery, the plaintiff has failed to produce any such evidence and, therefore, no reasonable jury could conclude that Bon Secours violated the False Claims Act,” the statement said.

Raffington is represented by Ross Brooks, Altomease Rucker Kennedy, Cara Van Dorn, David W. Sanford, Inayat Ali Hemani, Jennifer Siegel, Jeremy Heisler, Michael Douglas Palmer, Vincent McKnight and Amy Donehower of Sanford Heisler Sharp LLP.

Bon Secours is represented by Rena Andoh, Danielle Vrabie and Michael Paddock of Sheppard Mullin Richter & Hampton LLP.

The case is U.S. ex rel. June Raffington v. Bon Secours Health System et al., case number 1:10-cv-09650, in the U.S. District Court for the Southern District of New York.

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