Region II Annual Primary
Health Care Conference
CORPORATE COMPLIANCE
Presented by:
Jacqueline C. Leifer, Esq.
Senior Partner
Feldesman Tucker Leifer Fidell LLP
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Today’s Climate of Accountability,
Transparency, and Enforcement
Transparency
New Laws
with Expanded
Definitions
of Fraud
Whistleblowers
Reduce Fraud,
Waste,
and Abuse
Increased
Funding
for
Enforcement
Self-Disclosure
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Dedicates Additional Funding to Fraud & Abuse
Enforcement
 Health
Care Fraud and Abuse Control Account
received additional $10 million per year for FY 20112020
 Reconciliation allocated an additional $250 million to
the Account for FY 2011-2016

Enhances Penalties for Fraudulent Conduct
 Increases
civil monetary penalties imposed by HHS
OIG for making a false statement or
misrepresentation to $50,000 per claim
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Expansion of Recovery Audit Contractor (“RAC”)
Program to Medicaid Program
 States
must contract with RAC
 Contractor paid on contingent basis from recovered
overpayments (essentially a bounty system)
 RAC may make program integrity and fraud referrals
to law enforcement
 States must have appeal process
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Mandatory Compliance Programs


As a condition of enrollment in Medicare, Medicaid, and CHIP,
providers must establish a compliance program
Implementation date to be determined:


Core components of compliance program to be established by
the Secretary of HHS in consultation with the OIG



In setting a date, HHS must consider the current prevalence of
compliance programs for each industry sector and provider/supplier
category
Likely to be substantially similar to the core elements from previous
OIG compliance guidances
Specific to particular industry or category of the supplier or provider
Potential for False Claims Liability
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Mandatory return and reporting of “overpayments”
from the Medicare or Medicaid programs

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Overpayment: “funds that a person receives or retains under title
XVIII or XIX to which the person, after applicable reconciliation,
is not entitled under such title”
Return overpayment to HHS, the State, an intermediary, a
carrier, or a contractor, as appropriate; and
Report in writing to the entity the reason for the overpayment
By the later of:


60 days; or
Due date for corresponding cost report (if applicable)
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Mandatory Reporting and Refunding of Overpayments
 Once
the timeline for returning and reporting has elapsed, the provider has
an “obligation” to repay for purposes of the False Claims Act

The False Claims Act forbids knowingly:
 Presenting
or causing the presentation of, a false claim for reimbursement
by a Federal health care program, including Medicare or Medicaid;
 Making, using or causing to be made or used, a false record or statement
material to a false or fraudulent claim;
 Repaying less than what is owed to the Government;
 knowingly and improperly avoiding or decreasing an obligation to pay the
Government; and/or
 Conspiring to defraud the Federal Government through one of the actions
listed above.
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law
Whistleblower/Qui Tam Lawsuits
If government doesn’t intervene, relator can proceed on own

If
government takes the case, it makes litigation decisions


If successful, 25-30% of proceeds
If successful, person receives 15-25% of proceeds
1986 amendments tried to reduce “parasitic” lawsuits
Previously:



Could not be based on public information unless relator was the original
source
Public record = criminal, civil or administrative hearing, congressional or GAO
report, hearing, audit, investigation, or news media
Original source = direct and independent knowledge of the info and voluntarily
gave to government
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law
Whistleblower/Qui Tam Lawsuits
 Health
Reform Law relaxes Public Disclosure Bar
(not retroactive in effect)

Public disclosure now just a defense, not jurisdictional bar


Now explicitly excludes state proceedings and private
litigation
Whistleblower no longer has to have direct knowledge


Relator must voluntarily provide information to the
government prior to public disclosure OR
Knowledge must be independent of and materially add to
publicly disclosed information
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Civil Monetary Penalties Law
42 U.S.C. § 1320a-7a

Health Reform Law allows the OIG to impose CMPs when a
provider:

Fails to report and return an overpayment, as required under the new
Health Reform Law requirement
 Orders or prescribes a medical or other item or service during a period
in which the provider was excluded from a federal healthcare program, if
the provider knows or should have known that a claim for such medical
or other item or service will be made.
 Knowingly makes false statements, omissions, or misrepresentations of
a material fact in any application, bid or contract to participate or enroll
in a Federal health care program
 Fails to grant to the OIG timely access to documents for the purpose of
audits, investigations, evaluations, or other statutory functions
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Civil Monetary Penalties Law
42 U.S.C. § 1320a-7a
Health
Reform Law increases Civil
Monetary Penalties:
Increases
the penalty for a false statement
or misrepresentation to $50,000
Allows up to $15,000 per day that provider
refuses access to OIG
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law
Federal Anti-Kickback Statute
 Prohibits persons and entities from knowingly or willingly

Soliciting or receiving remuneration directly or indirectly, in cash or in
kind
 To induce patient referrals or the purchase or lease of equipment,
goods or services
 Payable in whole or in part by a Federal health care program.

Health Reform Law eliminates specific intent requirement and
establishes it as a false claim

“With respect to violations of this section, a person need not have actual
knowledge of this section or specific intent to commit a violation of this
section.’’

A false claim shall include “claims including items or services
resulting from a violation” of the Anti-Kickback Statute
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Health Reform Law

Program Integrity Provisions
 Data
Sharing to identify fraud, waste and abuse by
Medicare and Medicaid providers

Medicare and Medicaid claims data will be shared between
HHS and other agencies, including the Department of
Defense, the Department of Veterans Affairs, the Social
Security Administration, and the Indian Health Service
 For
enforcement and oversight purposes, both HHS
OIG and the Attorney General will have real-time
access to these data
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Recent Enforcement Activities

OIG Workplan FY 2010 – ARRA Audits
 Health

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
Centers
Capacity of ARRA New Access Point grantees’ to manage
and account for Federal funds and to operate new
community health service delivery sites in accordance with
Federal regulations
HIT security controls to protect sensitive EHR and personal
information at health centers funded by HRSA HIT grants
Reports by HRSA HIT grantees of EHR and other HIT
initiative implementation
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
American Recovery and Reinvestment Act

Mandatory Self-Disclosure
 Recipients
must disclose credible evidence
that a principal, employee, agent, contractor,
sub-recipient, subcontractor or other person
has (in connection with ARRA funds)
Submitted a false claim under the False Claims Act
 Committed a criminal or civil violation of laws
pertaining to fraud, conflict of interest, bribery,
gratuity, similar misconduct

Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
American Recovery and
Reinvestment Act

Whistleblower Protections

Non-Federal employers (such as health centers) that receive
ARRA funds cannot discriminate against any employee as
reprisal for that individual’s disclosure of information that he/she
reasonably believes is evidence of:



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
Gross mismanagement or gross waste of funds
Substantial and specific danger to public health / safety
Abuse of authority
Violation of law, rule or regulation
Unlike False Claims Act protections, ARRA protections only
apply to employees, not contractors or agents
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
HOT TOPICS IN 2010
Billing
 Federal Procurements
 Federal Property
 Patient Inducements
 Executive Compensation
 FTCA
 Section 330

Copyright © 2010 Feldesman Tucker Leifer Fidell LLP
Questions?
Jacqueline C. Leifer, Esq.
jleifer@ftlf.com
Feldesman Tucker Leifer Fidell LLP
2001 L Street, NW – 2nd Floor
Washington, DC 20036
(202) 466-8960
www.ftlf.com
Copyright © 2010 Feldesman Tucker Leifer Fidell LLP