DOJ’s Elder Justice Initiative

According to the U.S. Department of Health and Human Services, one in every seven Americans are over the age of 65, representing 14.5 percent of the U.S. population. By 2040, this number will grow to about 82.3 million, comprising approximately 21.7 percent of the population, a growing segment and attractive target for fraudsters. The Department of Justice’s (DOJ) Elder Justice Initiative, launched last year, seeks to prosecute elder abuse and financial fraud targeted at seniors. This is “a key priority” that affects “at least 10% of older Americans every year,” according to the DOJ.

The DOJ works with federal, state, local, and tribal partners to combat all forms of elder abuse and financial exploitation through enforcement actions, training and resources, research, victim services, and public awareness. One program, the Senior Abuse Financial Tracking and Accounting Tool (SAFTA), was developed to provide law enforcement with a simplified tool for investigating suspicious financial patterns and prosecuting cases of elder financial exploitation. Providers should be aware of their obligations under the Elder Justice Act to report to the state survey agency and local law enforcement any reasonable suspicion that a crime has been committed. In the case of a property crime, the report must be received within 24 hours. Failure to report as required by the Act may result in severe civil penalties including exclusion of both individuals and companies.

The False Claims Act (FCA), 31 U.S.C. §§ 3729 - 3733 imposes liability on persons and companies who defraud governmental programs, and it is the federal government’s primary litigation tool in combating civil fraud against the government. The FCA has traditionally been used to pursue nursing homes that bill the federal government for services not rendered or care that is grossly substandard. However, that is now changing and egregious cases may be referred “for a parallel criminal prosecution,” according to Associate Deputy Attorney General Toni Bacon.

While the majority of the nation’s more than 15,000 nursing homes provide high-quality care, the DOJ’s Elder Justice Initiative requires them to be vigilant for the various types of criminal charges that may be used for administering poor care including: health care fraud (18 U.S.C. § 1347), mail and wire fraud (18 U.S.C. §§ 1341, 1343), illegally influencing patient referrals for federally funded health care through payments (42 U.S.C. § 1320a-7b(b)(2)(A), and conspiracy (18 U.S.C. § 371).

Takeaways

Here are five takeaways about the DOJ’s Elder Justice Initiative:

• A nursing facility must provide services “to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care.” 42 U.S.C.A. § 1396r(b)(2).
• Poor-quality care with inadequate staffing levels or untrained staff may lead to a conclusion that services are “worthless” and could lead to a civil or criminal investigation by the DOJ or other regulators.
• Knowledge about the types of offenses and periodic assessments to detect vulnerabilities in service plans allows companies to identify and prevent problem areas in care before they occur.
• Last month, the DOJ filed criminal charges in Connecticut and California for elder fraud offenses. In California, federal prosecutors charged the largest home health care provider in the San Francisco Bay Area, including its Chief Executive Officer and approximately 28 others including doctors, nurses, marketers, and a social worker.
• An internal investigation is an important tool that may help gather facts and inform policies to retain higher quality staff, bring more transparency to abuse and neglect reporting, and provide consumers additional information to make informed decisions.

For more information on elder fraud offenses, internal investigations, or long term care issues please contact your Quarles & Brady attorney or:

• Randall Fearnow: (312) 715-5194 / Randall.fearnow@quarles.com