Amendments To The False Claims Act. July 7, 2009

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1 1 Amendments To The False Claims Act July 7, 2009

2 2 About this Webcast Need both browser & Webex open Rejoin webcast: Follow link in Event number: Event password: Cfca2009 Rejoin call: Conference call number: Communicate/Teleconf. Send questions via chat or Q & A to All Panelists Problems? paulab@ethics.org

3 3 Participants Moderator: Peter Hutt Partner, Akin Gump Strauss Hauer & Feld Robert Rhoad Partner, Crowell & Moring Jeb White President, Taxpayers Against Fraud Tony R. Maida Deputy Chief, Administrative and Civil Remedies Branch, Office of Counsel to the Inspector General, U.S. Department of Health and Human Services

4 4 What are we talking about? Civil False Claims Act, 31 U.S.C et seq. amended by Congress in the Fraud Enforcement and Recovery Act of 2009 ( FERA ). Legal landscape also includes: Fraud against health benefit programs, 18 U.S.C Criminal penalties for false statements or representations under federal health care programs, 42 U.S.C. 1320a-7b(a) Reporting obligations under government contracts and Federal Acquisition Rules (including new obligation to report if knowledge of significant overpayment) State false claims acts

5 5 Unchanged basics False claims submitted for government payments prohibited Severe sanctions: Treble damages Penalty of up to $11,000 per violation Many violations can result from single error or scheme Private qui tam civil suits brought on behalf of government Separate statutes for civil and criminal enforcement

6 6 What do amendments change? Liability expanded to clearly include false claims submitted for payment to government contractors and grantees Strengthened reverse false claim exposure on amounts due to government Adding materiality requirement Expanded conspiracy liability Relating back authority to help government beat statute of limitations More retaliation protection for whistleblowers Reverses pro-defense court rulings Eases government ability to issue investigative demands Easier for government to share information with qui tam plaintiffs

7 7 Change to presentment requirement and addition of materiality element Softens presentment requirement Adds materiality requirement here

8 8 Changed definition of claim

9 9 Actionable false claims not limited to those presented to the United States Resolves conflict between prior need for presentment to the U.S. and the prior claim definition that includes those made to recipients of federal funds Overturns U.S. ex rel Totten v. Bombardier, where court held it was not enough for a claim to be presented to Amtrak even though all of its money came from the federal government Affects all subcontractors Change would more clearly bring false claims by providers to Medicare Advantage and FEHBP plans within FCA scope

10 10 Allison Engine overturned The Supreme Court had held that to be liable for using a false statement or record to get a false claim paid by the Government Requires proof that defendant intended that the claim be paid by the Government itself; It is not sufficient that Government funds were used to pay the false claim. Amendments reject Supreme Court s holding

11 11 Expanded reverse false claim exposure Lawyer Fuel: improperly... avoids... obligation... to the Government

12 12 What is an obligation? When can established duty arise from retention of any overpayment, other than from -- a contractual, grantor-grantee, licensor-licensee, fee-based or similar relationship, or a statute or regulation?

13 13 Reverse false claims stay tuned Reverse false claim When it becomes a false claim if you already have money you shouldn t have and you say nothing Amendment leaves for argument: Does it apply to amounts for which obligation is owed to government contractor, but not to the government itself? Implication of language hospital s false claim to Medicare Advantage Organization is actionable, but hospital s knowing concealment of accidental overpayment apparently is not What constitutes avoid[ing] payment? When is avoiding payment improper?

14 14 Material

15 15 Conspiracy liability strengthened

16 16 Clarified liability for failure to return it all

17 17 Government claims can relate back to filing of qui tam complaint

18 18 Attorney General can delegate authority to issue CIDs

19 19 Government ability to use CID information

20 20 New information-sharing provisions

21 21 Changed anti-retaliation provisions Contractors and agents now protected Protection to internal whistleblowers, not just qui tam filers

22 22 Whistleblower relief

23 23 Effective date

24 24 Perspectives from the HHS OIG I m from the Government and I m here to help

25 25 ACRB Role in FCA Cases ACRB role in all HHS FCA cases Qui tams: intervention/declination determination OIG subpoenas: review and approval process HHS Agency Counsel Exclusive authority to exercise permissive fraud exclusion 1128(b)(7) of Social Security Act (SSA) Exclusion releases only by OIG in writing

26 26 Permissive Fraud Exclusion 1128(b)(7), i.e. 42 USC 1320a-7(b)(7) Applies to anyone who submits false claims, violated the anti-kickback statute, bills while excluded, or otherwise violates the CMPL, 1128A, i.e. 42 USC 1320a-7a

27 27 ACRB Role in FCA Cases: Permissive Exclusion Criteria Circumstances of misconduct and seriousness of offense Defendant s response to allegations/ determination of unlawful conduct Likelihood that offense or similar abuse will occur again Financial responsibility

28 28 Corporate Integrity Agreements (CIAs) Required if exclusion released Contract between defendant provider and OIG entered into upon FCA/CMPL settlement Theory of CIA: continued participation with appropriate controls and oversight by OIG Five year term

29 29 CIA Requirements Compliance officer/committee Written code of conduct Written policies and procedures General and specific training Requirements for ineligible persons Independent audits and reviews Confidential disclosure program Notification of Reportable Events Annual reporting to the OIG Breach and Default provisions Stipulated penalties Exclusion for Material Breach if not cured

30 30 Preventative Medicine Robust compliance program Adoption by Leadership Education Effectiveness in uncovering issues Action on issues Tests of effectiveness

31 31 Compliance Resources Compliance Program Guidances Special Fraud Alerts and Bulletins Board of Directors OIG Work Plan and Semi-Annual Report Advisory Opinions Apply only to requestor, but informative

32 32 What to do? Provider Self-Disclosure Protocol Potential fraud or other violations Cooperation Timely Resolution Protocol available on the OIG website 2006, 2008, and 2009 Open Letters Presumption of no CIA if fully cooperate

33 33 Questions?

34 34 Additional Information Recording and presentation of webcast will be available to attendees free of charge. For more information, please contact Phil Smith Vice President/Communications ERC (571)

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