L-3: New Government Source of Revenue: Fraud & Abuse Actions Expanded

1. L-3: New Government Source of Revenue:Fraud & Abuse Actions Expanded MARK REAGAN Hooper, Lundy & Bookman, Inc. San Francisco, California HARVEY M. TETTLEBAUM, Esq. Husch & Eppenberger, LLC Jefferson City, Missouri

2. 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.

3. 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.

4. 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.

5. 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

6. 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

7. Provide Information Regarding (cont.) • State False Claim Acts

8. Provide Information Regarding(cont.) • 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

9. Provide Information Regarding (cont.) • 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

10. 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

11. 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

12. 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

13. 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

14. Corporate Compliance Programs and Process • Create or revise a corporate compliance program • Establish written policies to prevent and detect waste, fraud, and abuse • Designate a compliance officer to oversee compliance program • Implement effective training and education procedures regarding corporate compliance

15. Corporate Compliance Programs and Process • Create or revise a corporate compliance program(cont.) • Ensure effective lines of communication between the compliance officer and employees • Audit and monitor company operations to detect waste, fraud, and abuse • Enforce the compliance program through disciplinary standards • Respond to non-compliance with immediate and reasonable steps

16. 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

17. Questions