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NEW YEAR'S COMPLIANCE RESOLUTIONS FOR HEALTH CARE: PLAN NOW OR PAY LATER

DEPARTMENT OF JUSTICE 2018 FALSE CLAIMS ACT UPDATE:

A REMINDER FOR NEW YEAR 2019 COMPLIANCE RESOLUTIONS TO PROTECT YOUR HEALTH CARE ORGANIZATION FROM A FALSE CLAIMS ACT LAWSUIT

New Year's resolutions include more than losing a few pounds and going to the gym. It is time to implement your health care organization's 2019 compliance plan----NOW! The Department of Justice just gave us a timely reminder in its False Claims Act ("FCA") update on the need for a continued and robust commitment to compliance.

As you may know, the FCA imposes liability on any person who submits a claim to the federal government that he or she knows (or should know) is false. An example may be a physician who submits a bill to Medicare for medical services she knows she has not provided. The False Claims Act also imposes liability in those instances in which someone may obtain money from the federal government to which he may not be entitled, and then uses false statements or records in order to retain the money. An example of this so-called "reverse false claim" may include a hospital who obtains interim payments from Medicare throughout the year, and then knowingly files a false cost report at the end of the year in order to avoid making a refund to the Medicare program.

In addition, the FCA provides that private parties may bring an action on behalf of the United States. These private parties, known as "qui tam relators," or simply whistleblowers, may share in a percentage of the proceeds from an FCA action or settlement. The FCA provides, with some exceptions, that a qui tam relator, when the Government has intervened in the lawsuit, may receive at least 15% but not more than 25% of the proceeds of the FCA action. When the Government does not intervene, the relator may receive an amount that the court decides is reasonable and will be not less than 25% or more than 30%. Stated otherwise, these are real financial incentives to be a whistleblower. I made plenty of millionaires during my tenure as an Assistant United States Attorney on whistleblower or FCA lawsuits.

In the fiscal year ending Sept. 30, 2018, the Department of Justice recently reported it obtained more than $2.8 billion in settlements and judgments from civil cases involving fraud and false claims against the government. Of that, $2.5 billion or approximately 90% involved the health care industry, including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians. This is the ninth consecutive year that the Department's civil health care fraud settlements and judgments have exceeded $2 billion. (https://www.justice.gov/opa/pr/justice-department-recovers-over-28-billion-false-claims-act-cases-fiscal-year-2018) The Department of Justice also reported that there are approximately 12 new qui tam suits filed every week.

Here are some practical things to consider in order to protect your organization from an FCA lawsuit in adopting a 2019 compliance plan:

  1. Implement or update policies and procedures
  2. Conduct compliance training and document it
  3. Create a transparent and professional business environment
  4. Have a plan in place to respond to all complaints
  5. Monitor compliance on a regular basis—AUDIT, AUDIT, AUDIT
  6. What to Audit: high volume, high dollar claims; matters under review in state or federal work plans, billing areas identified as concerning by internal employees.
  7. Appoint an individual (i.e., a compliance officer) who is responsible for compliance and provide them appropriate training
  8. Seek legal counsel to help investigate contentious complaints and offer advice on difficult issues. For ex., compliance with the 60 day repayment rule.
  9. Do not ignore internal employee compliance complaints
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