The U.S. Department of Justice has declined to intervene in four whistleblower lawsuits accusing a hospice provider of routinely admitting patients who were not eligible for the service under Medicare.

Legal experts, however, warned against reading too much into the DOJ's decision to not intervene in the case against Heartland Hospice, noting that the agency intervenes in just a small percentage of the more than 700 new whistleblower cases it receives each year.

“DOJ has to be strategic about the cases it chooses to expend resources on and litigate. And, it declines cases for reasons that may or may not relate to the merits or strength of the whistleblower's allegations,” said former DOJ civil prosecutor Eva Gunasekera, who is of counsel in the Washington, D.C., office of Finch McCranie,  in an email.

The False Claims Act plaintiffs, former employees of various Heartland Hospice facilities, allege that the company had a “standard practice” of admitting patients—ambulatory Alzheimer's patients, for example—who did not qualify for hospice services under the Centers for Medicare & Medicaid Services regulations, according to court documents. In addition, marketing and administrative staff received bonuses based on the number of cases referred to hospice, and pressured plaintiffs to “falsely document, admit, and retain unqualified patients at all times,” one complaint states.

Based in Toledo, Ohio, Heartland Hospice is the third-largest provider of hospice services in the United States, with locations in more than 110 cities in 32 states. It is owned by HCR ManorCare Inc., which is also a named defendant in the cases, which have been consolidated in the U.S. District Court for the Northern District of Ohio in Toledo.

“This matter has been under investigation for eight years, and we are pleased that DOJ declined to intervene because we do not believe there is any evidence of a false claim,” Eric Dubelier, a partner at Reed Smith and HCR's outside counsel in this matter, said in a statement. “We proved this in [an earlier case with similar allegations], and we are prepared to prove it again if the plaintiff goes forward.”

Although the DOJ filed a notice of election to decline intervention in the cases, it will still receive copies of pleadings filed and could intervene at a later date, according to the notice of election. The agency also asks the court to solicit its consent if and when the suit is dismissed, settled or “otherwise discontinued.”

Via an email from a representative, the DOJ declined to comment on its decision to not intervene.

Gunasekera said “based on my experience, DOJ's evaluation of litigation risk is assessed against its priorities and resources. Often a case is best litigated by an experienced law firm that has deep experience representing whistleblowers. It would be a mistake to speculate about the reason for DOJ's decision to decline and allow the whistleblower the option of proceeding in any particular case.”

It's not the first time the DOJ has withdrawn from prosecution of HCR ManorCare. Last November, it abandoned fraud allegations against the company's skilled-nursing operation after a federal judge in Virginia struck a key witness in the FCA lawsuit and scolded prosecutors for bringing a case she described as a “waste of money.”