A registered nurse (RN) recently filed a lawsuit under the federal False Claims Act, claiming she was fired in retaliation for complaining and opposing practices she contends violated Medicare regulations and endangered residents. She is seeking to be reinstated and paid back wages.
The complaint states that [the RN] “complained about and opposed several unlawful or unsafe practices at the nursing home,” and that she was “threatened with termination if she continued to complain about short staffing, a practice which endangered patients’ well-being. Shortly thereafter, [the RN] was terminated.”
The nurse has been an RN since 2010 and was employed as a nurse manager by the nursing home in 2018.
Among her complaints was an allegation that she was told to certify nebulization treatments performed by licensed practical nurses (LPNs), although regulations require them to be performed by an RN. When she refused, she was disciplined and later fired. She also alleges the facility was short-staffed, did not provide enough personal protection equipment (PPE), did not require staff to change PPE between patient interactions, and refused to use disposable trays.
The RN also alleges that the facility solicited Medicare patients to join an insurance plan affiliated with the Catholic Archdiocese of New York, whose nurse practitioner allegedly “generally refused” to approve hospitalizations of seriously ill patients contrary to the patient’s personal physician.
Compliance Perspective
Firing an employee in retaliation to complaints made regarding compliance issues, filing false claims to Medicare for reimbursement of services required to be performed by an RN but performed by an LPN, and failure to follow the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) COVID-19 guidelines for nursing homes may be considered a violation of the False Claims Act, as well as state and federal regulations.
Discussion Points:
- Review policies and procedures regarding the prohibited firing of an employee in retaliation for reporting concerns.
- Train staff about which services are required to be performed by RNs and the proper wearing and disposing of PPE.
- Periodically audit to ensure that sufficient staff are being scheduled and actually working, that RNs are performing services that only RNs according to regulations can perform, and that staff are provided with sufficient PPE and are wearing and disposing of it properly.
