Ten steps to limit your qui tam exposure
The False Claims Act (FCA) continues to drive the federal government’s efforts against fraud and abuse efforts in the health care industry. Qui tam recoveries have increased dramatically since the FCA statute was amended in 1986, with more than $3 billion now in the pockets of the government and whistle-blowers.
Worse yet, that number doesn’t even begin to take into account the millions of dollars spent by providers defending themselves in those cases. Lynn Snyder, a health care attorney with Epstein Becker in Washington, DC, argues that while there is no way to completely eliminate this threat, there are steps providers can take to help limit their risk.
Here are 10 steps Snyder says providers can take to reduce their qui tam exposure.
I. Beware of the knock. Snyder says providers must educate all current employees as to what constitutes a "knock at the door" by the federal or state government so they are prepared to contact counsel when that occurs. "Consider using wallet cards," she says. With whistle-blower lawsuits, the company may not be served with a complaint for a very long time, and contacts often begin with former employees who may share the contact information with current employees, she adds.
II. Chasing down the alumni club. "Be proactive," says Snyder. If the whistle-blower is a former employee, be sure to contact other former employees who may have interacted with the whistle-blower to let them know that they may be contacted and to find out what they may know about potential allegations. Anything human resource offices can do to maintain the names, addresses, and phone numbers of former employees can prove very valuable, but all too often that information is maintained only for a short time for tax purposes, she adds.
III. Don’t forget human resources. Snyder says providers must train their human resources staff to conduct thorough investigations of potential employees during the hiring process and then help identify disgruntled former employees who may have a "compliance" ax to grind at the time of termination.
She warns that human resource staff may ignore claims about improper billing and simply file them away. "You must connect the dots between human resources and compliance and reach out to those people to find out if those claims are true," she advises. "Be sensitive to righteous indignation’ resignation letters."
IV. Don’t guess; confirm and formalize your confirmation. Regulatory ambiguities must be clarified, and regulatory advice must be formalized, recorded, and made part of an organization’s institutional memory, according to Snyder. Be sure that billing personnel maintain a government contact’s "chronology," which records all contacts with the fiscal intermediary, carrier, or Medicaid agency, whether oral or in writing, to help "institutionalize" informal billing advice, which may become the subject of the whistle-blower’s allegations, she adds.
V. Focus on the allegations, not just on the whistle-blower. "Once you are aware of a qui tam suit, focus on educating the government so it opts not to intervene in the case," Snyder advises. Too often, providers become fixated on discovering who the whistle-blower is. "That becomes their mission in life," she says. Once that happens, attempts are made to discredit the whistle-blower rather than focusing on the allegation, she adds. Snyder’s advice: "Avoid personalizing the matter."
VI. Get everyone on board if there is a settlement. When trying to settle a whistle-blower allegation, providers should confirm the government has the whistle-blower’s agreement throughout the settlement negotiation process. "Remember that the whistle-blower has the right to challenge the reasonableness of the settlement if the whistle-blower does not agree to the settlement terms," she warns. Don’t forget the statutory right to attorney’s fees and other costs that may need to be negotiated, she adds.
VII. Use employment agreements. Snyder says that a written employment agreement in which the employee waives any rights to a financial recovery should be considered for certain potential employees who deal with sensitive company information. But she adds that it is still unclear whether such provisions will be considered enforceable.
VIII. Train, train, train. "Companies can never do too much compliance training," Snyder asserts. "Training should be frequent, fun, and informative." Providers must know the "hot topics" in the industry and prioritize their compliance plan accordingly. Training also should include time for informal communications with the trainer. "Often, compliance issues will percolate during these training sessions," she says.
IX. There is an end. According to Snyder, providers should read an entire set of settlement documents to become better acquainted with what a possible settlement could look like in order to understand their options. "Start with a settlement and work backward," she says. "Try to determine what the company could have done differently to avoid or at least to minimize its health care fraud exposure."
X. Don’t be myopic. "Every health care fraud settlement could affect your business because these settlements are like case law’ precedent," warns Snyder. Providers should follow settlements in their segment of the health care industry to identify areas where they may become a target. "Apply compliance program resources accordingly," she concludes.
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