Internal Audit and Compliance - Health Care Compliance Association

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Employee education about False Claims Recovery ...continued from page step is to include any state false claims laws. The Centers for Medicare and Medicaid Services (CMS) has created a Web page where the public can check Medicaid Fraud Statutes for each state. 3 By selecting the state in which the entity operates, the search engine pulls all the state laws related to Medicaid fraud. If the state has a false-claims law, it will fall under the heading of “Civil False Claims.” This citation can then be linked to review the specific state law(s) to evaluate their applicability to the False Claims Act policy. Regardless of whether the state currently has a false claims law in effect, keep checking the legislative activity, because the DRA included incentives for states to create false-claims laws that mirror the federal False Claims Act. As a practical matter, this provision of the DRA will likely bring many state false-claims laws in line with the federal False Claims Act. The last element of the False Claims Act policy is the whistle blower protection. Federal whistle blower protection is specifically addressed under the title of “Civil actions for false claims.” 4 For purposes of the False Claims Act policy, compliance requires incorporating the key provisions into the policy. To determine if a specific state has enacted whistle-blower protection laws, the CMS Medicaid Fraud Statutes Web page (reference #3) provides a useful tool. If the state has whistle blower protection laws, then the policy should include the key provisions of the law(s). In drafting the MIHS False Claims Act policy, we personalized the policy instead of purely copying text from the statutes. In so doing, the MIHS False Claims Act policy reflects that MIHS will comply with or will not engage in specific behavior. We also included definitions and simplified the language where possible, recognizing that this is a policy for employees to read and not a statute. Additionally, we structured the policy to follow the elements required by the Section 6032. As such, the policy includes major sections entitled: n The Federal False Claims Act n The State False Claims Acts n Federal and State Penalties (Administrative, Civil, and Criminal), and n Federal and State Whistleblower Protection Laws As part of the whistle-blower protection section, we included a discussion and reference to the MIHS Non-Retaliation Policy to help reinforce that, as an entity, we do not tolerate retaliation for issues or concerns that are raised in good faith. Policies and procedures for detecting and preventing fraud, waste, and abuse Section 6032 states that as part of the False Claims Act policy, there must be “detailed provisions regarding the entity’s policies and procedures for detecting and preventing fraud, waste, and abuse.” As such, Section 6032 recognizes that there may be existing policies and procedures in place. For many organizations, these policies and procedures may be part of the existing compliance program in the Standards of Conduct or in separate policies, such as a compliance reporting or fraud detection policy. Therefore, there is no need to re-draft these policies and procedures or copy them into the False Claims Act policy. Instead, Section 6032 requires discussion of those policies and reference to the entity’s existing policies. In the MIHS False Claims Act Policy, we used the section entitled, “MIHS Programs to Prevent and Detect Fraud” to refer to the existing MIHS Compliance Reporting Policy and to reaffirm the obligation of all MIHS personnel to report suspected fraud and abuse through the existing reporting structure, the compliance office, or the compliance hotline. False Claims Acts and whistle-blower protection in employee handbooks Section 6032 requires that a discussion of the federal and state False Claims Acts, as well as the whistle-blower protection laws related to those Acts, be included in “any employee handbook.” For organizations that already have a compliance program, this should include the Standards of Conduct along with any other employee manual. Specifically, the Standards of Conduct should include information about the organization’s non-retaliation policy, which represents the organization’s commitment to whistle blower protection. Additionally, the Standards of Conduct should include information about how to report issues or concerns, specifically, the detection and prevention of fraud, waste, and abuse. This is one of the seven foundational elements of the Department of Health and Human Services Office of Inspector General (OIG) Compliance Program Guidance. 5 Lastly, the Standards of Conduct should include bullet points referring to the organization’s commitment to complying with federal and state laws and regulations, and its commitment to submit only those claims for which there is accurate documentation. Many of these bullet points can be extracted from the language in one of the many Corporate Integrity Agreements authored by the OIG. At MIHS, we were in the process of revising and republishing our Standards of Conduct. Although we included the Standards of Conduct language that has become standard fare in Corporate Integrity Agreements regarding billing and compliance with federal and state laws and regulations, we modified the bullet point to specifically address the requirements of Section 6032, with reference to the MIHS False Claims Act Policy. The November 2006 Health Care Compliance Association • 888-580-8373 • www.hcca-info.org
language we included is: We do not tolerate making or submitting false or misleading claims or statements to any government agency, health care program or payer source (See MIHS False Claims Act Policy) The general discussion of the False Claims Act incorporates by reference the detailed discussion of the federal and state False Claims Acts, administrative remedies, and whistle blower protections as required by Section 6032. We also included a copy of the MIHS False Claims Act Policy in the New Employee handbook. In addition to providing the handbook and policy to all new employees, we included a brief overview of the policy as part of the new employee orientation to ensure that new employees are aware of the policy and know how to locate it. Attendance at and completion of new employee orientation is documented, allowing us to demonstrate compliance at a later date. New employees are easy to educate, because they are a captive audience. The challenge is distributing the new policy to existing employees and documenting their receipt of the policy. The answer for us was to distribute the policy to all employees as part of an organization-wide training program. Training employees on the False Claims Act Does Section 6032 require that employees be trained? Technically, no. Although Section 6032 does not state that health care entities must provide training to all personnel on the False Claims Act, the title of Section 6032 is, “Employee Education About False Claims Recovery.” Therefore, it could be argued that the requirement to train employees on Section 6032 is implicit. In addition, the publication of any new policy creates an obligation for the health care entity to introduce the new policy to affected personnel. If compliance means following the rules, then as compliance officers, we are obligated to inform personnel of the rules they are expected to follow. The same principle applies to the False Claims Act policy. Moreover, it would be difficult to argue compliance with Section 6032 without training, because existing employees would have no means by which to know or read the new False Claims Act policy. As such, a good faith effort for compliance with Section 6032 should include employee training on the False Claims Act policy. In earlier years, teaching employees how to be whistleblowers was not viewed favorably by many organizations. However, with the inclusion of the effectiveness provisions of the OIG’s Compliance Program Guidance, 6 effective compliance programs should be evaluated based on employee knowledge of how to appropriately report issues or concerns, including suspected fraud, waste, and abuse. As a result, training personnel on the False Claims Act policy should not be viewed as giving employees a direct line to the OIG. Rather, training employees should be viewed as reinforcing the existing compliance culture, educating employees on what constitutes a false claim, and showing them what to do if they suspect a violation of the False Claims Act policy. The MIHS False Claims Act Policy training is based on a train-the-trainer model that uses department managers as the trainers. This helps to ensure accountability and improve completion percentages. The policy is the foundation for the training, but trainers are provided with a summary training “script” to guide them through the training. All employees are given a copy of the MIHS False Claims Act Policy, and they are told where the policy resides on the Intranet. All attendees are required to print and sign a sign-in log to verify attendance. Completion will be audited Health Care Compliance Association • 888-580-8373 • www.hcca-info.org to ensure that the compliance office has evidence to demonstrate that all personnel were trained on the MIHS False Claims Act Policy. In addition to employees, Section 6032 requires that the False Claims Act Policy apply to contractors or agents of the entity. In the context of education, this means that contractors and agents, and their employees, must also receive information about the entity’s False Claims Act Policy. Fortunately, this is similar to requirements in Corporate Integrity Agreements in which an entity is required to provide its Standards of Conduct to all vendors, contractors, physicians, and agents. In those situations, many entities satisfy this requirement by including a copy of the Standards of Conduct as part of all new contracts and sending a copy to existing contractors. This may be burdensome, so it would be wise to investigate other options, such as e-mailing the policy, to make the requirement manageable. Many organizations have a central repository for contracts through which all contractors can be identified. The same concept and methodology applies to the medical staff, some of whom may be a part of group practice that itself must comply with Section 6032. Looking ahead, the MIHS False Claims Act Policy will be included: n In the New Employee Orientation handbook for employees n As part of the contracting process for all new contracts n As part of the medical staff credentialing packet What happens if you are wrong? Even though MIHS has taken many proactive steps to comply with Section 6032, there is always a chance that our method is wrong. What happens if our approach to compliance is not what the regulators envisioned? Continued on page November 2006
Page 1 and 2: Volume Eight Number Eleven November
Page 3 and 4: ASK John asks the leadership your q
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Page 11 and 12: Cheryl Wagonhurst the other medical
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Internal Audit and Compliance - Health Care Compliance Association

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