© 2007 husch & eppenberger, llc1 l-3: new government source of revenue: fraud & abuse...

© 2007 Husch & Eppenberger, LLC 1

L-3: New Government Source of Revenue:

Fraud & Abuse Actions Expanded

MARK REAGANHooper, Lundy & Bookman, Inc.

San Francisco, California

HARVEY M. TETTLEBAUM, Esq.Husch & Eppenberger, LLC

Jefferson City, Missouri

© 2007 Husch & Eppenberger, LLC2

Deficit Reduction Act of 2005:Organizations Affected Any organization or individual that

receives or makes payments of at least $5,000,000 annually under a Title XIX State Plan, a State Plan Waiver, or a Title XIX demonstration.


Deficit Reduction Act of 2005:Organizations Affected (cont.)

Period for calculating the $5,000,000 threshold is the previous federal fiscal year.

If organization met the threshold, it will have to comply with the Deficit Reduction Act provisions at the beginning of the next calendar year.


Deficit Reduction Act of 2005: Requirements Organizations must:

Establish policies explaining the Federal False Claims Act, state false claims laws, and the rights of whistle blowers under those laws;

Establish polices to detect and prevent fraud, waste, and abuse; and

Include such policies in an employee handbook.


Provide Information Regarding Federal Civil False Claims Act, 31

U.S.C. §§ 3729-3733

Prohibits submission of false claims to government

Does not require intent to defraud government

Includes qui tam provisions


Provide Information Regarding (cont.)

Administrative Remedies for False Claims and Statements, 31 U.S.C. §§ 3801-3812

Substantially similar to the Federal Civil False Claims Act



State False Claim Acts



Medicaid Integrity Program

Recovery Audit Contractors

MediMedi:

Target area: Inappropriate Psychotherapy Services

Data Matching

Payment Error Rate Measurement (PERM) project

Ten Fold Increase in Funds



False Claims, Anti-kickback, Illegal Patient Admittance and Retention Provisions, 42 U.S.C. § 1320a-7b(a)-(b), (d)

False Statement, 42 U.S.C. § 1320a–7b(c)

Conspiracy to Defraud the Government, 18 U.S.C. § 286

Federal False Claims, 18 U.S.C. § 287 (not just healthcare)

Mail and Wire Fraud Provisions, 18 U.S.C. §§ 1341, 1343

Obstruction of Justice Provisions, 18 U.S.C. § 1505

RICO Provisions, 18 U.S.C. § 1962


Deficit Reduction Act of 2005:Why Comply? Non-compliance could result in:

Government may deem Medicaid claims submitted during the period of non-compliance as “false”

Corporations then could be liable under the False Claims Act and suffer:

Forfeiture of payments received under Medicaid

Exclusion from participation in the Medicaid Program


Deficit Reduction Act of 2005:Why Comply? (cont.)

A corporate compliance program lessens the grade of punishment under the Federal Sentencing Guidelines Reduces a corporation’s culpability score,

reducing the corporation’s criminal fine


Deficit Reduction Act of 2005:Why Comply? (cont.)

Demonstrates the facility’s commitment to honest and responsible provider and corporate conduct

Formulates effective internal controls

Creates a centralized source to distribute information regarding waste, fraud, and abuse

Provides a facility with an accurate view of employee behavior

Prevents, identifies, and corrects unlawful and unethical behavior


Deficit Reduction Act of 2005:How to Comply Publish policies in hard copy or electronic

format

Publish policies in employee handbook

Distribute policies to employees, agents, and contractors


Corporate Compliance Programs and Process Create or revise a corporate compliance

program

1. Establish written policies to prevent and detect waste, fraud, and abuse

2. Designate a compliance officer to oversee compliance program

3. Implement effective training and education procedures regarding corporate compliance


Corporate Compliance Programs and Process Create or revise a corporate compliance

program (cont.)

4. Ensure effective lines of communication between the compliance officer and employees

5. Audit and monitor company operations to detect waste, fraud, and abuse

6. Enforce the compliance program through disciplinary standards

7. Respond to non-compliance with immediate and reasonable steps


Medicare Integrity – Government Perspectives Testimony of Gregory Demske, Assistant

Inspector General for Legal Affairs Testimony of Tim Hill, Director, Office of

Financial Management, CMS Testimony of Daniel R. Levinson, Inspector

General Testimony of Alex Acosta, U.S. Attorney,

Southern District of Florida


Questions

© 2007 husch & eppenberger, llc1 l-3: new government source of revenue: fraud & abuse...

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