FALSE CLAIM ACT POLICY
The purpose of this policy is to abide by the requirements of Section 6032 of the Deficit Reduction Act of 2005 to implement and enforce The Center for Children and Families, Inc.’s policies and procedures to detect and prevent fraud, waste, and abuse with respect to payments to CFCF from federal or state healthcare programs and to provide protections for those who report actual or suspected wrongdoing.
This policy is included in the CFCF employee handbook and communicated to business partners through the contracting processes, and via the organization’s website.
The policy includes the following information related to applicable fraud and abuse laws, the rights of employees to be protected as whistleblowers and CFCF policies and procedures for detecting and preventing fraud, waste, and abuse.
- I. A summary of the Federal False claims Act including a summary of protections for employees (qui tam/whistleblowers) who report suspected violations of these federal laws.
- II. A summary of administrative remedies found in the Program Fraud civil Remedies Act
- III. State False Claims Acts
- IV. The role of federal and state laws in preventing and detecting fraud, waste, and abuse in federal and state health care programs
- V. CFCF policies and procedures for preventing and detecting fraud, waste and abuse
- VI. CFCF prohibitions against retaliation and whistleblower rights and protections.
1. Federal False Claims Act 31 U.S.C. §§ 3729-3733
The Federal False Claims Act applies to any federally funded contract or program and establishes liability for any person who knowingly presents or causes to be presented a false or fraudulent claim to the United Sates government for payment. In 1986, the False Claims Act was expanded to include Medicare and Medicaid programs.
Summary of Provisions:
The False Claims Act prohibits knowingly making a false claim against the government. False claims can take the form of overcharging for a product or service, delivering less than the promised amount or type of service, delivering less than the promised amount or type of goods or services, underpaying money owed to the government and charging for one thing while providing another.
The False claims Act imposes civil liability on any person or entity who:
• Knowingly files a false or fraudulent claim for payments to Medicare, Medicaid or other federally funded health care program;
• Knowingly uses a false record or statement to obtain payment on a false or fraudulent claim from Medicare, Medicaid or other federally funded health care program; or
• Conspires to defraud Medicare, Medicaid or other federally funded health care program by attempting to have a false or fraudulent claim paid.
• Actual knowledge that the information on the claim is false;
• Acting in deliberate ignorance of whether the claim is true or false; or
• Acting in reckless regard of whether the claim is true or false.
The False Claims Act is not a criminal statute and thus imposes civil penalties. No proof of specific intent is required. A person or entity, such as a hospital, found liable under the False Claims Act is subject to a civil money penalty of between $5,500 and $11,000 plus three times the amount of damages that the government sustained because of the illegal act. In health care cases, the amount of damages sustained is the amount paid for each false claim that is filed.
Qui Tam “Whistleblower” provision
To encourage individuals to come forward and report misconduct involving false claims the FCA includes a qui tam or whistleblower provision. Anyone may bring a qui tam action under the federal False Claims Act in the name of the United States in federal court. A qui tam action is defined as a claim brought by an informer/relator under a statute which establishes a penalty for the commission or omission of a certain act. Part of the penalty paid by the wrongdoer is paid to the informer with the remainder going to the government.
Qui Tam Procedure
The case is initiated by an informer filing his or her lawsuit in a federal district court on behalf of the government for false or fraudulent claims submitted by an individual or an entity doing business with, or reimbursed by the United States government. The lawsuit is filed “under seal” and is not served on (presented to) the defendant at this time to enable the government to investigate the claim. The government has 60 days to investigate and decide whether it will pursue the action, in which case the complaint is unsealed and the Department of Justice or Untied States Attorney’s office begins prosecuting the claim. If the government decides not to pursue the case, the person who filed the action has the right to continue with the case on his or her own. The government may join the action at an alternate date if it can demonstrate good cause for doing so. Any case must be brought within six years of the filing of the false claim.
Qui Tam Whistleblower Awards
If the government proceeds with the lawsuit and is successful, the person who filed the action will receive between 15 and 25 percent of any monies recovered for the government plus attorney fees and costs. The amount of the award depends on the contributions of the individual to the success of the case. If the government declines to pursue the case, the qui tam whistleblower will be entitled to between 25 and 30 percent of the proceeds of the case, plus reasonable expenses and attorney’s fees and costs awarded against the defendant. The award may be reduced, however, if the court finds that the whistleblower planned and initiated the violation.
Qui Tam Whistleblower Anti-retaliation Protections
Individuals within an organization who observe activities or behavior that may violate the law in some manner and who report their observations either t management or to governmental agencies are provided protections under the law. Whistleblowers initiating a qui tam action may not be discriminated or retaliated against in any manner by their employer. Employees, who are discharged, demoted, harassed, or confront discrimination in furtherance of a qui tam action or as a consequence of whistleblowing activity, are entitled to all relief necessary to make the employee whole.
2. Federal Program Fraud civil Remedies Act 31 U.S. C. §§ 3801 -3812
The Program Fraud Civil Remedies Act of 1986 (PFCRA) provides administrative remedies for making false claims to certain federal agencies, including the Department of Health and Human Services (HHS) separate from and in addition to, the judicial court remedy for false claims provided by the Civil False claims Act. The Act is quite similar to the Civil False claims Act in many respects, but is broader and more detailed, with differing penalties. The Act deals with submission of improper “claims” or “written statements” to a federal agency. PFCRA was enacted as a means to address lower dollar frauds and generally applies to claims of $150,000 or less.
Summary of Provisions
The PFCRA imposes liability on people or entities who file a claim that they know or have reason to know:
• Is false, fictitious, or fraudulent;
• Includes or is supported by any written statement that contains false, fictitious, or fraudulent information;
• Includes or is supported by a written statement that omits a material fact, which causes the statement to be false, fictitious, or fraudulent, and the person or entity submitting the statement has a duty to include the omitted fact; or is for payment for property or services not provided as claimed.
A violation of this section of the PFCRA is punishably by a $5,000 civil penalty for each wrongfully filed claim, plus an assessment of twice the amount of any unlawful claim that has been paid.
In addition, a person or entity violates the PFCRA if they submit a written statement which they know or should know:
• Asserts a material fact that is false, fictitious or fraudulent; or
• Omits a material fact that they had a duty to include, the omission caused the statement to be false, fictitious, or fraudulent, and the statement contained a certification of accuracy.
Violations are investigated by the HHS Office of the Inspector General and enforcement actions must be approved by the Attorney General. PFCRA enforcement can begin with a hearing before an administrative law judge. Penalties may be recovered through a civil action brought by the Attorney General or through an administrative offset against “clean” claims. Because of the availability of other criminal, civil and administrative remedies, cases are not routinely prosecuted under PFCRA.
3. State False claims Acts
Many states have enacted statutes like the Federal claims Act that provide a civil remedy for the submission of false and fraudulent claims to state health care programs, including Medicaid. As of November 2006, at least twenty-five states have enacted civil false claims laws. Louisiana does have a state false claims law. It is titled, ACT NO. 1373, S.B. No. 1559 “Medical Assistance Programs Integrity law – Claims Review and Administrative Sanctions; Civil Actions; “Qui Tam” actions”. The Act intends for the Secretary of the Department of Health and Hospitals, the Attorney General, and private citizens of Louisiana to be agents of the state with ability, authority and resources to pursue civil monetary penalties, liquidated damages, or other remedies to protect the integrity of federal medical assistance programs from fraud, misrepresentation and abuse.
4. The Role of False Claims Laws
The laws described in this policy create a comprehensive scheme for controlling waste, fraud and abuse in federal and state health care programs by giving appropriate governmental agencies the authority to seek out, investigate and prosecute violations. Enforcement activities are pursued in criminal, civil and administrative forums. This provides a broad spectrum of remedies to battle this problem. In addition, whistleblower statutes and anti-retaliation policies protect individuals who in good faith report waste, fraud, and abuse. Whistleblower statutes, such as the federal Civil False claims Act create reasonable incentives for this purpose. Employment protections create a level of security employees need to help in prosecuting these cases.
5. CFCF Policies and Procedures for Detecting and Preventing Fraud
CFCF is dedicated to furthering the mission, while ensuring compliance with all applicable laws, rules, regulations and promoting adherence to the highest standards of ethical conduct. CFCF has developed a compliance plan and program, which is intended to identify areas of risk and potential liability and institute steps to minimize or eliminate those risks by:
• Emphasizing our commitment to conducting business in an ethical manner,
• Providing education, training, and guidance to all employees to meet increasingly complex statutory and regulatory requirements,
• Monitoring and overseeing compliance efforts on a proactive basis,
• Providing an avenue for reporting instances of potential non-compliance or unethical behavior;
• Investigating instances of potential non-compliance; and
• Preventing or reducing instances of accidental or intentional non-compliance, particularly in this time of increased government scrutiny.
The Compliance Plan provides the operational structure for how ethical conduct and integrity in our business practices is encouraged and promoted throughout the facility. You can find CFCF compliance plan and applicable documents on the organization’s electronic document management system housed on the website.
In addition, CFCF has a designated officer to report compliance concerns. The designated officer is the Administrative Services Director. The Administrative Services Director can be reach at 318-398-0945 to report workplace concerns, including suspected illegal or unethical behavior; non-compliance with laws, regulations and policies; safety violations; criminal offenses; or other concerns. Callers may remain anonymous if they so choose.
6. CFCF Prohibitions Against Retaliation and Whistleblower Rights and Protections
Employees are protected from retribution by the Federal Whistleblowers Act. Therefore, you may report any concerns without fear of retaliation. CFCF encourages all employees to utilize our reporting process for any concerns no matter how trivial they may seem.
CFCF administration, officers, directors, managers, supervisors or any employees, are not permitted to engage in retaliation or any form of harassment directed against an employee who reports any concern in good faith. Any employee who engages in retaliation or harassment is subject to discipline, up to and including discharge, on the first offense. All reported concerns are presumed to be in good faith. Only when an investigation reveals strong evidence that someone reported a concern that had no factual basis and the concern was reported to embarrass or otherwise defame an employee or other entity, might adverse action be appropriate.