Legal Duties of the Healthcare Risk Manager

Transcription

1 The Risk Manager as a Whistle Blower Panel Moderator: John Metcalfe, JD, FASHRM Panelists: Dan Groszkruger, JD, MPH, DFASHRM Andrew (Andy) Oppenberg, MPH,CPHRM,DFASHRM Josh Hyatt, DHSc (c), MHL, CPHRM 1 Risk Manager As Whistleblower FCA Recoveries Medical Service Providers DOJ Couple Hundred Million $6 Billion Increased from <10% to> 60% Healthcare Fraud Prevention Medicare Fraud Strike Force 2 1

2 Risk Manager As Whistleblower Increased Awareness and Exposure on Whistleblower Issue Feb/March- Healthcare Risk Management Davis Wright Tremaine, LLP Increased Ethical Considerations 3 The Risk Manager as a Whistle Blower Learning Objectives: 1. List legal duties employees in general have and Healthcare Risk Managers in particular play in corporate compliance and ethics programs 2. Articulate general Ethical duties and concepts in Healthcare organization 3. Discuss the federal statutes setting the conditions for a whistleblower claim 4. Discuss ASHRM s Healthcare Code Professional Conducts as it relates to duty owed to employer vs. duty owed to society and our Noble Profession 5. You be Judge: List the Ethical pros and cons of a Healthcare Risk Manager being a whistle blower on his own employer 4 2

3 Dan Groszkruger, JD, MPH, DFASHRM QUI TAM IN A NUTSHELL 5 Qui Tam in a Nutshell Common law, Writ of Qui Tam Private individual who assists a prosecution can receive all or part of any penalty imposed. 6 3

4 Qui Tam in a Nutshell Qui tam pro domino rege quam pro se ipso in hac parte sequitur: or [he] who sues in this matter for the king as [well as] for himself. who as much for [our] lord the king as for himself in this action pursues or follows. 7 False Claims Act False Claims Act (FCA)- Federal Civil Liability for false or fraudulent claims Includes: qui tam provision Allows for a Relator or Whistleblower 8 4

5 FCA- Filing Qui Tam Under Seal- Clerk of the Court Copies to DOJ and US Attorney Disclosure Statement 9 FCA- Prosecutor Duty Federal prosecutor must diligently investigate any alleged FCA violation. Within a 60 day period, the prosecutor must either: Intervene Decline Dismiss 10 5

6 FCA- Award Amount of Award: Based on DOJ Action Intervene 15-25% of recovery or settlement Substantial Contribution Decline 25-30% of recovery or settlement Either Case Reasonable expenses and attorney s fees/costs 11 FCA- Award If whistleblower planned and initiated the violation: - Court may reduce award Tuesday March 18, 2014 SCAHRM Marchl Meeting Costa Mesa, CA 12 6

7 Declination to intervene: FCA- Declination Court may award reasonable attorney s fees/cost to plaintiff if claim is: clearly frivolous, clearly vexatious, or brought primarily for the purposes of harassment. 13 Employee Protections Against: Discharge Demotion Suspension Threats Harassment Other Discrimination FCA- Retaliation Make the employee whole Relief Includes: Reinstatement Back Pay Interest Compensation Damages Attorney Fees/Costs 14 7

8 Andrew (Andy) Oppenberg, MPH,CPHRM,DFASHRM MORAL CORE & ETHICAL TENSION 15 Moral Core, Foundations and Values Moral core of HCO Protection Values Foundation Modified from instructor s ppt.s Managerial Ethics in Healthcare: a New Perspective 2014 Health Administration Press 16 8

9 Recognizing that: Individuals Values Behavior HCOs Values Policy Challenges Differing Values Conflicts Modified from instructor s ppt.s Managerial Ethics in Healthcare: a New Perspective 2014 Health Administration Press 17 Ethical Climate Content Process Modified from instructor s ppt.s Managerial Ethics in Healthcare: a New Perspective 2014 Health Administration Press 18 9

10 Genesis of Ethical Tension in Healthcare Organizations Conflicts Mission Statement Values Statement Patient R&Rs 19 Modified from instructor s ppt.s Managerial Ethics in Healthcare: a New Perspective 2014 Health Administration Press Tuesday March 18, 2014 SCAHRM Marchl Meeting Costa Mesa, CA 20 10

11 21 Tuesday March 18, 2014 SCAHRM Marchl Meeting Costa Mesa, CA 22 11

12 Tuesday March 18, 2014 SCAHRM Marchl Meeting Costa Mesa, CA 23 In Conclusion: Practical Advice for Your own Moral /Ethical Compass Know yourself and your colleagues. Be sure that you are able to withstand pressure. Be sure that you know what support you can expect. Have a plan to follow through when a decision is made. Make sure decision making is transparent. Modified from instructor s ppt.s 24 Managerial Ethics in Healthcare: a New Perspective 2014 Health Administration Press 12

13 Josh Hyatt, DHSc (c), MHL, CPHRM PERSONAL & INSTITUTIONAL ETHICAL BEHAVIOR 25 Personal Ethics: The E s Conflicts Big E Personal Ethics little e Organizational/ Professional Ethics 26 13

14 BIG E Big E v. little e little e 27 Individuals Ethical Responsibility Base actions on sound decision making Set tone through appropriate behavior Address other unethical behavior Ask questions 28 14

15 Institutional Ethical Behaviors Culture of the Institution Leadership and Commitment Organized and Consistent Program Sense of Safety 29 Culture Every group has a code of ethics, including the mafia Bad culture always defeats good rules Responsibility: Individual imperative Not a collective process 30 15

16 Leadership Staff Management Leadership 31 Program Tone enforced with consistent program Standards Training Enforcement Process/Access 32 16

17 Safety Fear of retaliation Communication Violation of Big E Moral Code 33 In Conclusion: Culture and Your Role little e culture conflict with your Big E morals? Acknowledge and address conflicts. Work with leadership, when you can. Promote a culture of safety

18 Risk Manager s Role What do you when faced with unethical behavior from leadership? Staff? If your company is bought by a corporation that commits fraud and the Compliance Officer is non-responsive, are you liable to report it? How do you handle a directive from leadership that makes you Big E uncomfortable? 35 18