On March 18, 2013, an article by attorney Erin M. Campbell making a case for an Ohio qui tam False Claims Act was published on the University of Cincinnati Law Review’s Blog. You can review the article and its citations in full on the University of Cincinnati Law Review’s Blog. The article begins as follows:
Nursing home residents left to wallow in urine and feces soaked beds; a resident suffering from an open bedsore the size of a cantaloupe when persistent and purposeful under staffing leaves residents unturned and in unchanged diapers; residents suffering from repeat scabies infections; residents suffering very high rates of falls and perhaps even left lying overnight on the floor; residents whose diabetes is intentionally mismanaged so that the nursing home can seek higher reimbursements; residents whose untreated wounds result in amputation and death, and facilities falsifying records to hide inadequate staffing levels.
Allegations like these and more have resulted in civil liability for nursing homes and criminal liability for nurses.
Government regulators did not expose these nursing homes. Rather, nurses and staff members filed state and federal False Claims Act suits against them on behalf of the United States and the states of Delaware and Illinois.
Twenty-six states, including business friendly Florida, North Carolina, and Texas all have state false claims acts with qui tam provisions. Qui tam False Claims Act statutes allow private persons—called relators—who uncover false claims and fraud against government entities to bring lawsuits to recover otherwise lost taxpayer funds. If the relator wins, the state receives the lion’s share of the proceeds. Depending upon factors such as whether the state intervenes, the whistleblowing relator receives a reward for their work on the of up to 30%. However, false claims acts often provide for both treble damages and civil penalties, so in many cases governments are made whole even after the relators are compensated for their efforts.
Ohio does not have its own false claims act; nor do any of Ohio’s municipalities. Therefore, Ohio residents cannot file cases on Ohio’s behalf to expose squalid conditions, to recover Medicaid money paid to nursing homes that provide inhumane care, or to recover for other false claims and fraud upon the State Treasury. And while Ohio itself can sue on its own behalf, common law fraud actions allow recovery of only single damages, not the make whole recovery of treble damages and civil penalties that false claims acts provide.
There are three reasons why Ohio should enact an FCA with qui tam provisions: (1) under federal law, Ohio would receive a higher share of blockbuster nationwide Medicare/Medicaid settlements; (2) with the retaliation protections and financial incentives of a qui tam false claims act, more Ohioans would risk coming forward to report false claims and fraud draining the Treasury; and (3) the deterrence provided by a state false claims act would level the playing field for the state’s honest contractors.
To read this article in its entirety, please visit University of Cincinnati Law Review.