Odyssey Whistleblower Cases Bring $25 Million to the U.S. Treasury

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Today, Cross Law Firm, S.C. and Nolan & Auerbach, P.A. jointly announce the settlement of their clients’ respective qui tam lawsuits against the for-profit hospice chain Odyssey Healthcare, Inc. Odyssey has agreed to pay the federal government $25 million to resolve two qui tam lawsuits which alleged, inter alia, that it submitted false claims to Medicare for continuous home care services that were not provided in accordance with requirements of the Medicare Program.

Our clients stood up and suited up for the American people against one of our country’s hospice giants

Today, Cross Law Firm, S.C. and Nolan & Auerbach, P.A. jointly announce the settlement of their clients’ respective qui tam lawsuits against the for-profit hospice chain Odyssey Healthcare, Inc. Odyssey has agreed to pay the federal government $25 million to resolve two qui tam lawsuits which alleged, inter alia, that it submitted false claims to Medicare for continuous home care services that were not provided in accordance with requirements of the Medicare Program.

According to the qui tam complaints, Odyssey submitted false claims to the Medicare Program through a systemic pattern and practice of enrolling and re-certifying non-terminal patients, billing for continuous care when such care was neither reasonable nor necessary, and providing inadequate services and other violations of the Medicare Conditions of Participation. The lawsuits also alleged that the company’s actions were in direct violation of a Corporate Integrity Agreement that Odyssey had signed in 2006 to quiet an earlier-settled qui tam lawsuit.

Registered Nurse Jane Tuchalski, one of the relators in Cross Law Firm’s complaint, was previously employed by Odyssey, where she worked on the front lines, providing direct patient care in Wisconsin. Nolan & Auerbach’s client, Bryan Dingus, was privy to the inner workings of the company’s billing practices as the former Executive Director of Odyssey’s Norfolk, Virginia hospice.

“Our clients stood up and suited up for the American people against one of our country’s hospice giants,” said Cross Law Firm partner Nola J. Hitchcock Cross. “They are the real heroes of this fraud-fighting story.”

The Medicare hospice benefit was designed to provide terminally ill patients with comfort and pain relief, as well as emotional and spiritual support. Continuous home care, which is a 24-hour nursing service, is allowed only during periods of crisis in which a Medicare beneficiary requires continuous care to achieve palliation or management of acute medical symptoms.

According to one of the lawsuits, Odyssey’s alleged billing schemes were buoyed by an aggressive marketing plan, which pushed sales representatives to meet high admission quotas of anywhere between six to twelve admitted patients per month. Many Medicare beneficiaries were allegedly accepted into hospice with scant or minimal documentation of a diagnosable, much less, terminal illness.

“When a beneficiary elects to enroll in a hospice program, Medicare requires the patient to waive the right to receive Medicare-funded curative care related to his or her terminal illness,” explained former federal prosecutor and Nolan & Auerbach, P.A. partner Marcella Auerbach. “Patient care, not company profits, should drive this decision-making process.”

“Odyssey was expected to practice strict adherence to Medicare requirements after the prior lawsuit was settled,” said Attorney Nola J. Hitchcock Cross, who brought the earlier qui tam case against Odyssey for Medicare fraud that was settled for about $12.7 million in 2006.

The False Claims Act allows private citizens with detailed knowledge of fraud to bring an action on behalf of the government and to assist in the recovery of the government’s stolen healthcare dollars. The statute allows the government to recover three times the amount it was defrauded, in addition to civil penalties of $5,500 to $11,000 per false claim. Successful whistleblowers can receive between 15 and 30 percent of the government’s recovery.

Jane Tuchalski, who alleged she had been fired due to her concerns about Odyssey’s conduct, resolved those claims confidentially. “Employees need to know that the False Claims Act protects them against retaliation and that they can stand up for what is right,” she explained.

Odyssey will pay the federal government $25 million to settle allegations raised in the qui tam lawsuits. The whistleblowers will collectively receive $4,687,500 from the settlement amount.

“Too often, companies terminate employees who try to do the right thing,” said Bryan Dingus. “My hope is that my perseverance encourages others to expose business practices that improperly drain Medicare dollars.”

The federal government was represented by an exceptional team of government attorneys, including Assistant United States Attorney Stacy C. Gerber Ward, U.S. Attorney’s Office in the Eastern District of Wisconsin; Trial Attorney Jonathan H. Gold, U.S. Justice Department, Civil Division, Commercial Litigation Branch; and Assistant Inspector General for Legal Affairs Greg Demske, Office of Inspector General of the U.S. Department of Health and Human Services.

The whistleblowers’ cases are United States ex rel. Rouse, et al. v. Odyssey Healthcare, Inc., Case No. 08-C-0383 (E.D. Wis.) and United States ex rel. Dingus v. Odyssey Healthcare, Inc., Case No. 09-C-0254 (E.D. Wis.). Additional information is available at CrossLawFirm.com and Whistleblowerfirm.com.

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