Bon Secours Must Face Ex-Employee’s FCA Suit

Posted May 27th, 2016.

As It Appeared On
Law360

By Bill Wichert

Law360, New York (May 26, 2016, 4:56 PM ET) — A New York federal judge said Tuesday that Bon Secours Health System must face a former employee’s claims that it defrauded Medicare and Medicaid out of millions of dollars and fired her for launching the allegations, saying she provided sufficient details to back the claims up.

U.S. District Judge Richard M. Berman partially denied Bon Secours Health System Inc.’s motion to dismiss relator June Raffington’s False Claims Act lawsuit after finding she adequately outlined five allegations of fraudulent practices between 2007 and 2009, including that system officials forged physicians’ signatures and billed Medicaid for services that should have been billed to Medicare.

“The court finds that relator has alleged a fraudulent scheme to forge physician authorizations and ‘sufficiently describ[es] the “who, what, when, where and how” of the alleged … scheme,’” Judge Berman said.

The judge dismissed five other allegations in the suit, which was filed in December seeking unspecified damages, ruling for example that Raffington failed to specify her claims the system improperly switched patients to more costly and medically unnecessary treatment and billed Medicare for services that were not provided.

Given the timing of her termination in October 2009, however, Judge Berman found Raffington could pursue her retaliation claim. Raffington alleges she was fired days after telling her supervisors she would be reporting the purported wrongdoing at an upcoming meeting with a New York City Human Resources Administration representative.

Raffington “plausibly alleges that her protected conduct led to her termination because her conduct was closely followed in time by the adverse employment action (her termination),” the judge said.

Raffington worked for Bon Secours for nearly a year as vice president of home care services at its subsidiary, Schervier Home Health Care, which provides in-home medical care for patients in Bronx and Westchester counties, the decision states. Raffington says that after discovering the allegedly fraudulent practices, she discussed them with senior executives in the months leading up to her firing.

Soon after Raffington filed her fifth amended complaint in December, calling for treble damages, Bon Secours asked the judge to dismiss the case, arguing she had failed to provide the specific allegations required under federal law, the decision states.

But Judge Berman rejected that argument for the first five allegations, saying Raffington provided enough details for those claims to proceed.

On the forgery issue, for example, Raffington has alleged how false claims were submitted to the government for medical services for 74 patients from September 2008 to February 2009, including patients’ names and billing amounts, the judge said. Raffington also identified the doctors whose signatures allegedly were forged and specified the involvement of executives and billing staff, the decision states.

Such details were lacking, however, in Raffington’s other five allegations, the judge ruled.

While Raffington alleged Bon Secours billed Medicare for services that were not delivered to patients, for instance, the judge said she failed to provide patients’ names, dates of the claims and the amount of money improperly charged to the government, among other specifics.

Judge Berman directed the parties to engage in “good-faith settlement discussions” before their next scheduled conference on June 16.

Raffington’s attorney, Ross Brooks, said in a statement Thursday his client is “very pleased with the ruling.”

“Bon Secours is a multibillion-dollar operation that has bilked the United States and New York state out of millions of dollars in false claims for home health care services through an intricate fraud scheme,” Brooks said. “But for Ms. Raffington’s courage, integrity and sacrifice, none of her allegations would have come to light. We look forward to proceeding to the next steps in the litigation.”

Bon Secours attorney Carolina A. Fornos declined to comment Thursday.

Bon Secours is represented by Carolina A. Fornos, Danielle Vrabie, Thomas C. Hill, Michael W. Paddock and Erica J. Kraus of Pillsbury Winthrop Shaw Pittman LLP.

Raffington is represented by Ross Brooks, Vince McKnight, Jennifer Siegel and Inayat Hemani of Sanford Heisler Kimpel LLP.

The case is United States of America ex rel. June Raffington v. Bon Secours Health System Inc. 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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