W6 Negotiating False Claims Act Settlements and Corporate Integrity Agreements Roger Goldman, Felicia Heimer, Judith Waltz and Wendy Weiss

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1 W6 Negotiating False Claims Act Settlements and Corporate Integrity Agreements Roger Goldman, Felicia Heimer, Judith Waltz and Wendy Weiss Health Care Compliance Association s 16 th Annual Compliance Institute May 2, 2012 Las Vegas, NV Caesars Palace The False Claims Act The basics: The process The parties Role of potential administrative remedies as an alternative to False Claims Act prosecutions Corporate Integrity Agreements 2 1

May 2, 2012 Las Vegas, NV Caesars Palace The False Claims Act The basics: The process The parties Role of

2 The False Claims Act Investigation What is the Government doing during the investigation? Who is involved and at what stage? How much information is shared with the defendant? What is the role of the OIG in the investigation? What is the role of the Relator? Corporate Integrity Agreements 3 The False Claims Act Investigation How does the Defendant find out about a pending qui tam? Steps to be taken by the Defendant during the investigation Subpoena Responses Separate Counsel Defense Strategies Internal Investigations Corporate Integrity Agreements 4 2

Corporate Integrity Agreements 3 The False Claims Act Investigation How does the Defendant find out about a pending qui tam?

3 Settling a False Claims Act Case Who needs to be at the table? OIG Tricare MFCU Private health insurance payers? How are damages calculated? Potential tax consequences? Corporate Integrity Agreements 5 Settling a False Claims Act Case The Role of the Relator The Government s perspective Defense perspective Corporate Integrity Agreements 6 3

4 Settling a False Claims Act Case Post-settlement Corrective Actions Corporate Integrity Agreements 7 The False Claims Act - Settlement The Relator s Recovery Process Share of Proceeds How Determined? Attorney s Fees Issue precluding recovery public disclosure Corporate Integrity Agreements 8 4

Relator s Recovery Process Share of Proceeds How Determined?

5 The Corporate Integrity Agreement - Negotiation Process What is a CIA? Corporate Integrity Agreements 9 The Corporate Integrity Agreement Typical Requirements To designate a Compliance Officer and a compliance committee; To develop policies and procedures; To educate staff and sometimes additional parties (e.g., contractors); To engage an Independent Review Organization (IRO) to perform annual audits and reviews; Corporate Integrity Agreements 10 5

Compliance Officer and a compliance committee; To develop policies and procedures; To educate staff and

6 The Corporate Integrity Agreement: Typical Requirements To implement a confidential disclosure program; To screen for excluded individuals; To report to the OIG certain information at specified intervals; and To refund determined overpayments within very short time frames and report to the OIG the occurrence of material deficiencies or reportable events. There is a requirement to create and implement a corrective action plan. Board training, involvement and certifications Corporate Integrity Agreements 11 The CIA Negotiation Process OIG s perspective on the negotiation process How does OIG decide it will enter into a CIA in lieu of exclusion? Are there situations where OIG won t accept a CIA? Does OIG evaluate the settlement agreement proposed by DOJ? Corporate Integrity Agreements 12 6

There is a requirement to create and implement a corrective action plan.

7 The CIA - Negotiation Process Defense Perspective: When does the process of negotiating a CIA start? How to minimize the requirements of a CIA Tailoring the CIA to the covered conduct Tailoring the CIA to the unique operational context Corporate Integrity Agreements 13 Living Under a CIA OIG s perspective Defense perspective Corporate Integrity Agreements 14 7

How to minimize the requirements of a CIA Tailoring the CIA to the covered conduct

8 Questions: Questions from the audience. Speakers Wendy Weiss Assistant United States Attorney Chief, Civil Fraud Section US Attorney s Office Los Angeles, CA Wendy.Weiss@usdoj.gov Felicia Heimer Senior Counsel Office of Counsel to the HHS Inspector General Felicia.Heimer@oig.hhs.gov Roger S. Goldman Partner Latham & Watkins LLP roger.goldman@lw.com Judith A. Waltz Partner Foley & Lardner LLP jwaltz@foley.com Corporate Integrity Agreements 16 8

SELF AUDITS AND DISCLOSURES IN A RAC WORLD. Kathleen Houston Drummy Partner Davis Wright Tremaine LLP Los Angeles, CA

SELF AUDITS AND DISCLOSURES IN A RAC WORLD Kathleen Houston Drummy Partner Davis Wright Tremaine LLP Los Angeles, CA 1 Broader Program Integrity Landscape Improper Payments As a result of error As a result