Hospice care is the provision of specialized palliative treatment for terminally ill patients, focused not on curing them but making their last days as comfortable as possible. Hospice has gone from a grassroots movement on the outskirts of the U.S. medical establishment to a massive, multibillion-dollar industry. And as it has come of age, it has increasingly attracted the same type of fraud, waste, and abuse that plagues U.S. healthcare at large.

Hospice treatment has been covered by Medicare has since 1982, and its utilization has grown by leaps and bounds in recent years as for-profit providers have poured into the market: Almost half of all Medicare recipients who died in 2013 utilized hospice care. That year, 85 percent of the 1.5 million to 1.6 million patients who received hospice care had their treatment paid for by Medicare—to the tune of $15.1 billion.

Hospice can offer an appealing business opportunity because making a patient’s final days more comfortable is less complex than trying to cure a disease. Moreover, palliative care can be delivered anywhere—in hospitals, specialized hospice facilities, nursing homes, or even the patient’s own home. But it is also labor-intensive, meaning there isn’t much room to increase profits by improving efficiency. Moreover, Medicare’s reimbursement rates are calculated to guarantee hospice providers around a 6 percent return—not much of a profit. So making money becomes a volume game in which for-profit hospices push to serve more patients, deliver more treatments, or both.

Not surprisingly, then, much hospice fraud revolves around illegal schemes to obtain new patients or piling on medically unnecessary services. If hospice care follows the same pattern as Medicare as a whole, taxpayers may be losing upward of $1.4 billion annually to fraud, waste, abuse, and other “improper payments.”

The federal government is fighting back, and in 2015 it prosecuted more than 60 cases of hospice fraud worth hundreds of millions of dollars. The government relies heavily on whistleblower suits under the False Claims Act to be its eyes and ears in detecting these healthcare scams. Whistleblowers can be anyone who observe fraud, waste, or abuse against the government (like Medicare and other programs), and are often employees who witness or come to possess evidence of such conduct in their workplaces. Under the False Claims Act’s qui tam provisions, whistleblowers (called “relators” in False Claims Act parlance) can file suit on behalf of the United States and may be entitled to a share of money recovered.

Here are five ways unscrupulous hospice providers use and abuse Medicare, taxpayers, and the terminally ill. If you think you’ve encountered any of these, it may be worth consulting an attorney to see if you have a whistleblower case.

1. Can patients stay in hospice care even their prognosis changes to non-terminal?

There’s a reason that on average, for-profit hospices serve patients for nearly twice as many days as nonprofit hospices: Longer stays generally equal more money. It should be no surprise that the proportion of patients who were discharged alive from hospice care increased by around 50 percent between 2002 and 2012.

Sometimes patients enter hospice care with a terminal prognosis but their health subsequently improves. Instead of releasing such patients, the hospice falsely certifies that they’re still terminal and keeps them around. Medicare continues to pay its hospice per diem rate, while the costs associated with the patients drops off significantly because they no longer need palliative care.

But why wait for a patient’s prognosis to improve when you can just fill beds with healthy patients? The annals of whistleblower suits are replete with stories of just such scams. Owners of for-profit hospices put tremendous pressure on employees to “recruit” patients by any means necessary. The result is “dog-eat-dog, dirty, competitive fighting” for patients and the enrollment of people who may not have terminal illnesses—and who may not even be sick. One hospice marketer was allegedly caught on tape describing how salespeople would cruise neighborhoods to find patients. “How do you solicit patients? You see somebody sitting on the front porch in a wheelchair and you hit the brakes.”Medicare requires two doctors to determine a patient has less than six months to live before it will pay for hospice care. Clearly, any good scam requires doctors willing to lie or look the other way (or at least sign whatever is put in front of them).

2. Can hospice providers lawfully pay kickbacks for patient referrals?

“Kickbacks,” or payments in exchange for patient referrals, are illegal under Medicare rules. Still, providers may try to cover their tracks by disguising the kickbacks as payments for medical services or advising. Alternatively, providers may make kickback arrangements with nursing homes and other facilities. In any event, these types of payments are a form of healthcare fraud.

3. Classifying patients as needing higher levels of care than they actually do.

Even outside the hospice context, intentionally misclassifying patients is a common Medicare scam. A skilled nursing facilities will fraudulently put patients in the most intensive category so it can bill Medicare for their treatment at the “ultra-high” reimbursement rate; the parallel in the hospice world is “continuous” or “crisis” care, often reserved for patients in the last seven days of their lives.

The patients may simply need less care than would justify placing them in the crisis category. Or they may not need any care at all. In one case, the country’s biggest hospice company at the time was accused of billing Medicare for crisis care delivered during nurse visits to the homes of patients who were actually out “at church, at the beauty parlor, or playing bingo” when nurses arrived at their homes.

4. Providing more treatment than medically necessary.

Now we’re in territory where patients are actually being abused: providing medically unnecessary treatment. Overmedication is a common form of overtreatment in hospice fraud. It’s often done with painkillers, as palliative care is largely about pain management, and who’s going to notice if a terminally ill person in a lot of pain gets a few extra injections of morphine? How about one who isn’t in that much pain?

Intentionally giving someone unnecessary medicine or treatment is a crime, grounds for a tort lawsuit, and a major violation of medical ethics rules. And taxpayers foot the bill for all the unnecessary medication.

5. Pushing patients out of hospice in order to avoid aggregate caps — including allegedly “euthanizing patients for profits.”

Medicare limits the amount it pays hospices by imposing an “aggregate cap” on how much it will pay a hospice; determining the exact figure involves multiplying an “aggregate cap value” by the number of Medicare patients the hospice treats per fiscal year. (In 2016 the aggregate cap value was $27,820.75.) If a hospice exceeds its aggregate cap, it must refund the overage to Medicare. If this happens, the provider gets hit with a huge bill and once-profitable patients suddenly become liabilities, as every extra dollar of treatment is a dollar for which it will no longer be able to bill Medicare.

One hospice owner who was already running several scams expelled hundreds of patients when it learned it had exceeded its cap and it would have to repay millions of dollars. Horrifically, another owner who hit the cap allegedly “got rid of” at least four patients by ordering nurses to euthanize them with painkiller overdoses. He allegedly sent the “execution orders” by text message, and in one message told a nurse that “[y]ou need to make this patient go bye-bye.”

One patient died after being given at least 10 doses of morphine in a seven-hour window, “even though there was no documentation of pain or respiratory distress.”

There had apparently been “whispers” of this wrongdoing before the FBI got involved—exactly the kind of information that may well have been exposed by a whistleblower.

If you feel that you or someone you know may be a victim of hospice fraud, please contact our attorneys for a free and confidential consultation.