Whistleblowers: What You Need to Know To Protect Your Agency

Transcription

1 Whistleblowers: What You Need to Know To Protect Your Agency Presented by: Denise Bonn Deputy Director Center for Health Care Law National Association for Home Care & Hospice (202) Whistleblower Actions DOJ collected $3.1 Billion from fraud actions in % from health care; only 20% from defense contractors Almost ½ recoveries from WHISTLEBLOWERS! 2 1

2 Do you think that you don t have to be concerned? 1. You are a small agency 2. Whistleblower suits have not been filed against HHAs or Hospices 3. You are not filing false claims YOU ARE WRONG 3 What is a Whistleblower suit? Private person files lawsuit against Provider alleging provider filed false claims with U.S. with right to recover part of the proceeds if suit is successful and attorneys fees 4 2

3 Suit authorized by federal Civil False Claims Act, 31 U.S.C Qui Tam 5 What is a False Claim under the FCA? knowingly present false or fraudulent claim for payment knowingly make false statement or false record to get paid 6 3

4 What is knowingly under FCA? actual knowledge acts in deliberate ignorance (ostrich) acts in reckless disregard Government does NOT have to prove specific intent to defraud 7 What is Defendant s potential liability? 3X damages CMP from $5,500 to $11,000 per claim 8 4

5 Why is the person called a whistleblower? Individual must have direct and independent knowledge of alleged false claims Usually disgruntled employee Sometimes a spurned spouse or lover Sometimes a competitor 9 Does an employee have to bring the problem to your attention BEFORE filing suit? NO! 10 5

6 How can you find out about problem before suit is filed? Hotline Exit interview with employee Employees believe you will do something about alleged fraud 11 Risk Areas HHA and Hospice: Claims Billing for services not rendered Furnishing services which are not medically necessary 12 6

7 Risk Areas (cont d) HHA and Hospice: Claims Furnishing services which were not ordered by a physician Furnishing services by unlicensed personnel Furnishing services supported by falsified documentation Marketing: improper payments to referral sources 13 Home Health Risk Areas Furnishing services to patients who are not homebound Always billing 5 therapy visits to avoid LUPA Always billing 11 or more therapy visits to attain therapy threshold 14 7

8 Hospice Risk Areas Certifying patients who have more than six months to live 15 Risk Areas Medicaid State Medicaid False Claims Acts DRA incentives for States to adopt Medicaid False Claims Acts Reward: states keep 10% more OIG must review state law List of State Laws OIG has reviewed:

9 Providers with $5 Million or More Medicaid Revenues Must establish written policies for your employees and contractors about: state and Federal FCAs whistleblower protections your policies for detecting and preventing fraud and abuse Provider non-compliance = Non-payment (DRA 2005) FAQs: Att1.pdf 17 What should you do if employee comes to you with alleged improper activity? Investigate Report results back to employee Take corrective action, if necessary 18 9

10 Should you fire the employee or threaten termination if he discloses his concerns to the government? NO! 19 Employment protections for whistleblower Protected for investigation, initiation, assistance in suit If discharged, demoted, suspended, threatened, harassed, or discriminated against for above is entitled to: Reinstatement at same seniority 20 10

11 Employment protections for whistleblower (cont d) If discharged, demoted, suspended, threatened, harassed, or discriminated against for above is entitled to: 2X back pay Interest Special damages, including attorneys fees and costs 21 How can you DETER whistleblower suits? Hotline Compliance Plan Review billing Review referrals and contracts 22 11

12 Whistleblower Procedure Whistleblower observes what he/she believes is illegal activity false billing, false cost report, kickback, Stark violation gathers information and evidence to support his/her allegations may or may not confront employer with alleged illegal activity brings information and evidence to a lawyer 23 Whistleblower files suit in Federal Court Suit is brought in the name of U.S. Suit filed under seal Not filed upon Defendant until court so orders Whistleblower s lawyer gives U.S. copy of all information and evidence Once filed, no other whistleblower can proceed on same facts 24 12

13 Government may: Take over the case Can choose to proceed with administrative remedy for CMP, rather than court proceeding Can choose to file criminal action as well as civil action Dismiss the case Decline to proceed with case Whistleblower may then proceed with the case Settle case with Defendant 25 Other Potential Liability: Stark Anti-Kickback Other 26 13

14 If suit is successful, what can whistleblower get? 15-30% of proceeds Expenses Attorneys fees Costs ALL PAID BY DEFENDANT 27 What if whistleblower planned and initiated the false claim? Receive reduced amount of proceeds Unless whistleblower is criminally convicted for false claims 28 14

15 What if Defendant wins? Court MAY award Defendant attorneys fees and expenses IF Defendant WINS, AND 29 What if Defendant wins? (cont d) Court finds U.S. position was not substantially justified Size limit Individual net worth not more than $2M Business net worth not more than $7M and 500 employees Non-profit exception Court finds bad faith of government EAJA, 28 U.S.C

16 Hospice Qui Tam Case Odyssey Former Regional Clinical Administrator filed qui tam case Patients lived longer than 6 months Allegation that General Managers under pressure to admit patients who did not meet hospice requirements Allegation that whistleblower recommended that some patients be discharged Claims Settled for $13 million Whistleblower got $2.3 million U.S. ex rel. Russell v. Odyssey Health Care, Inc., E.D. Wis., 2:03-cv AEG 31 Home Health Qui Tam Cases Perez Case Payroll clerk files qui tam action against Provident Home Health Care Services, Inc., Tri- Regional Home Health, owner Lourdes Perez, etc. (Los Angeles, CA) in 4/03 (10/01 4/03) billing for 1,000 s of visits never performed Sept Medicare suspended payment and seized more than $20M in assets U.S. v. Perez, C.D. CA, CV DT-PLA (unsealed 10/3/06) 32 16

17 Home Health Qui Tam Cases (cont d) Criminal case against Perez Allegations Kickbacks to patients, nurses, marketers and physicians Billing for patients not homebound and no medical necessity for services Billing Medicare for services not rendered Creating false records to support false claims Perez pleaded guilty Oct Agreed to repay $33.9 million Sentenced to 46 months in jail RN (DON) also pleaded guilty Whistleblower to get more than 20% of the recovery Government said investigation is continuing U.S. v. Perez, C.D. CA, CR SVW (unsealed 9/6/06) 33 Home Health Qui Tam Cases (cont d) Perez progeny? Employee of Community Home Health filed qui tam case Medicare suspended payment August 2004 Criminal case against owner, Nida Campanille - She pleaded guilty to scheme (May 2003 August 2004) recruited patients for unnecessary services by paying kickbacks, directly and through marketers, to physicians and patients billed Medicare for medically unnecessary services or services not performed 34 17

18 Home Health Qui Tam Cases (cont d) forged physician signatures and falsified medical records to conceal the fraud - 2 years jail - $600,000 restitution (RN also pleaded guilty; LPN admitted to forging physician signatures and falsifying medical records) U.S. ex rel. Shutt v. Community Home Health Care Services, Inc., C.D. CA, No. 2:04-cv MMM 35 Home Health Qui Tam Cases (cont d) Aging Care Home Health Two whistleblowers filed qui tam case: former employee of HHA and former employee of physician (2002) Suit against HHA and Government alleged claims were false because referrals violated Stark II and Anti-Kickback Multiple Medical Directors/physicians for HHA Advisory Board Medicare suspended payment January 2005 Aging Care filed bankruptcy October

19 Home Health Qui Tam Cases (cont d) Court decision re: Stark violations (5 physicians) (Feb. 2006) Physicians referred to HHA Sham contracts HHA paid physicians for little or no services OR to perform routine services for physicians own patients HHA and owner must pay government more than $400,000 for services rendered to patients referred by the 5 physicians during period of prohibited referrals (9/99 11/03) Government alleged Anti-Kickback violations re: payments for referrals by Aging Care and owner to 5 physicians plus an additional 6 physicians 37 U.S. v. Medica-Rents Co., No 4:01-CV- 198-Y, 2006 WL (N.D. Tex. Dec. 7, 2006) Court awarded attorneys fees to successful Defendant Evidence that government gave conflicting information to Medica-Rents on how to bill the product (nonpowered, palliative air mattress) Government intervened based on evidence it knew could be faulty and unreliable 38 19

20 U.S. v. Medica-Rents Co. (cont d) Government withheld crucial evidence from Medica-Rents Court awarded attorneys fees to Defendant because of Government s bad faith Defendant was too large a corporation to qualify for attorneys fees under the substantially justified test 39 What Should You Do? Compliance must be top down Educate your staff and contractors Control and monitor your marketers Review and monitor billing Review all contracts with referral sources Treat your employees well 40 20