False Claims Act Violations and Corporate Compliance

Transcription

1 False Claims Act Violations 31 U.S.C The Players 1) Department of Justice (DOJ) enforces civil and criminal law 2) Office of Inspector General (OIG) cannot go to court has authority to administratively exclude a provider from a federal health care program The Players 3) Qui Tam Relators private party must be original source of admissible information case brought in federal court DOJ may join or may decline receives a % of recovery Violation occurs when a person knowingly presents false or fraudulent claims. Reckless disregard of the truth is sufficient to establish knowing violation do not need to prove specific intent. However, innocent mistakes, even negligence, do not constitute a violation of the False Claims Act. 1

2 Intentional Act Mistake Reckless Disregard? False Claims Act Penalties: Civil money penalties of $5,500 $11,000/claim 3x the amount of damage sustained by Government Possible exclusion from Medicare and Medicaid Programs 6 year statute of limitations + = Settlement U.S. v. Krizek, 111 F.3d 934 (D.C. Cir. 1997) Physician held liable for claims submitted on his behalf. Ohio Hospital Association v. Shalala (September 25, 1997) Government policy of demanding penalty in lieu of false claims suit is heavy handed but legal! June 3, 1998 Memorandum from Eric H. Holder Jr., Deputy Attorney General, will help providers but will not eliminate the use of the False Claims Act in health care investigations. However, be aware of Qui Tam Relators Ex US ex rel. Kosenske v. Carlisle HMA, Inc., 2007 WL (Nov. 14, 2007) (Appendix K) 2

3 Tip: Best means of complying with False Claims Act is an effective e compliance program. Corporate Compliance (Appendix L) The OIG has told health care providers what it thinks they should be doing by: Publishing a model Compliance Guidance for various providers including physicians OIG has published Final Supplemental Compliance Guidance for Hospitals on January 31, 2005 Result: Many providers have adopted, or are in the process of adopting, a corporate compliance process (Appendix P) September 25, 2000 OIG published its Final Compliance Program Guidance for Individual and Small llgroup Physician i Practices OIG believes that the majority of physicians are honest. However, all health care providers have a duty to ensure that the claims submitted to Federal Health Plans are true and accurate. (Appendix P) 3

4 Sets forth the fundamental components of a Compliance Program, but is guidance only not a Model Compliance Program Analogizes corporate compliance to preventative medicine Urges physicians to adopt a compliance policy regardless of the size of the practice Recognizes that one size does not fit all and the policy must be tailored to the needs of each particular organization Must be more than a policy that sits in a binder on a shelf Must be dynamic and change as circumstances dictate Thus, prepare to call it a Compliance Process Stresses importance of training staff and fostering open lines of communication withinthepracticethe Have a mechanism to review your coding and billing systems The Appendices to the OIG s Compliance Guidance to Physicians Groups are an excellent summary of the law (but must be updated to reflect current legal developments such as the most recent Stark regulations). OIG s Supplemental Compliance Guidance to Hospitals is more up to date and is very helpful. 4

5 Advantages of a corporate compliance process: Evidences organization s intent to comply with the law Advantages of a corporate compliance process: Establishes an institutional memory that will: Minimize mistakes that are due to a failure to document Establish a resource within the institution that can be used to address compliancerelated questions as they arise January 31, 2005 Final Compliance Guidance for Hospitals (Appendix O) Advantages of a corporate compliance process: Can also help in the defense of a qui tam claim li Will be a mitigating factor if provider is found liable under the False Claims Act Advantages of a corporate compliance process: Improved documentation may enhance patient care: minimize billing mistakes lessen the chance of an audit avoid conflicts with Stark and Antikickback Statutes May result in in reimbursement Advantages of a corporate compliance process: Intentional Conduct Mistake *Avoids allegation raised in U.S. ex rel Hefner v. Hackensack University Medical Center (D.NJ. Aug. 13, 2003) thatfailure to implement an effective compliance process is evidence of reckless disregard or deliberate ignorance. 5

6 When examining your internal processes, do so with the assistance of legal counsel What to do now? Return money to Fiscal Intermediary (FI) Part A or Carrier (Part B) or Make voluntary disclosure to the OIG and/or approach the Department of Justice (DOJ) What is the difference $$$$, but obtain finality However, you can still correct mistakes without raising suspicion Bottom line when required, voluntary disclosure will result in lower repayment and peace of mind Problems in contracts... Consider: State law Breach can end up in court and documents become public Stark law is very detail oriented Ex Kosenske case Corporate compliance does not need to be: Complicated Disruptive, or Expensive 6

7 What is needed to make a corporate compliance process work are: Appropriately trained individuals Applying common sense in a positive environment that is institutionally committed to compliance 7