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Birch Family Services False Claims Act
Policy and Procedures

Birch Family Services False Claims Act Policy and Procedures

Revised December 1, 2009

PURPOSE:

Birch Family Services is committed to prompt, complete and accurate billing of all services provided. Birch and its employees, independent contractors or agents shall not make or submit any false or misleading entries on any bills or claim forms, and no employee, independent contractor or agent shall engage in any arrangement or participate in such an arrangement at the direction of another person, including any supervisor or manager, that results in such prohibited acts.

POLICY:

It is the policy of Birch to detect and prevent fraud, waste and abuse in the federal healthcare programs. The Federal False Claims Act is a law designed to prevent such fraud, waste and abuse, and sets forth procedures that Birch has put into place to prevent any violations of the False Claims Act. Under the Deficit Reduction Act of 2005, all employees must understand the laws regarding false claims, as well as their rights to report attempts to defraud the government. This policy is intended to help explain the laws and employee rights under them.

This Policy explains the Federal False Claims Act (31 U.S.C. §§ 3729 - 3733), the Administrative Remedies For False Claims (31 USC Chapter 38 §§3801-3812), the New York State False Claims Act (State Finance Law §§187-194), and other New York State laws concerning false statements or claims and employee protections against retaliation. This policy also sets forth the procedures Birch has put into place to prevent any violations of federal or New York State laws regarding fraud or abuse in its health care programs.

Federal False Claims Act

The False Claims Act is a federal statute that covers fraud involving any federally funded contract or program, including the Medicare and Medicaid programs. It is an important tool the government and taxpayers have to recover the billions of dollars stolen through fraud every year. Under the False Claims Act, those who knowingly submit, or cause another person to submit, false claims for payment of government funds, liable for three times the government’s damages plus civil penalties. In fact, any health care agency that seeks and receives reimbursement from Medicaid or Medicare funds are considered government contractors, and therefore, are subject to the False Claims Act. Examples of actions that violate the False Claims Act include:

• Knowingly making false statements or falsifying records
• Knowingly billing for goods and services that were never delivered or rendered
• Knowingly including an item of cost in a “cost report” that was not incurred or cannot be justified or misrepresenting the types of goods and services that were rendered
• Performing inappropriate or unnecessary services in order to increase Medicare/Medicaid reimbursement
• Double-billing — charging more than once for the same goods or service
• Billing in order to increase revenue instead of billing to reflect actual work performed
• Winning a contract through kickbacks or bribes
• Providing care of such a substandard nature that it is the equivalent of a “worthless service.”
• Falsifying time records to bill Medicaid

How Complaints Are Filed

When a private citizen makes a claim on behalf of the government, it is known as a “qui tam” (Whistleblower) lawsuit. The False Claims Act does not require a person to report the fraud to the government before filing a lawsuit. If the government or another private citizen already filed a qui tam lawsuit, then you are barred from filing a lawsuit. The law contains a statute of limitations on bringing the claim.

If a private citizen chooses to file a qui tam complaint, it must be done in a federal district court, and a copy of the complaint must be sent to the Attorney General of the United States. The most important part of filing a qui tam complaint is that it must be done under seal. Confidentiality with false claims cases is most important. The complaint cannot be served on the defendant until the court grants permission to do so. Although the complaint remains under seal, the identity of the complainant is revealed to the government at the time that the complaint is filed. The identity of the complainant is not revealed to the defendant until the complaint is unsealed.

Once a qui tam lawsuit is filed, the government can choose not to proceed with the action, but even if this occurs, the private citizen can continue with his or her suit against the defendant.

Penalties

If a provider violates the federal False Claims Act, it is required to pay three times the amount of damages that the government incurred, and not less than $5,500 and not more than $11,000 in civil penalties. This amount is for each claim.

A whistleblower that brings a “qui tam” lawsuit for a False Claims Act violation may also collect a monetary award. He or she will only collect a monetary award if the government recovers money from the defendant. The award is based on a percentage of the recovery.

Birch Policy for Detecting Fraud, Waste and Abuse

Birch has a zero tolerance policy for fraud, waste, and abuse. Due to the severe legal and monetary consequences that can result from a violation of any false claims laws, Birch has implemented a strict policy that applies to all employees, including management. The purpose of this policy is to ensure that Birch is providing the government with truthful information regarding the services that we render. Birch will not knowingly allow its employees, independent contractors or agents to fraudulently misrepresent to the government about the services that we provide.

All employees are required to report to Birch management about any possible fraud, waste or abuse as soon as he or she becomes aware of it. Doing this will allow management to commence a full investigation into the matter. If you are unsure who you should contact to raise an issue of fraud, first speak with your direct supervisor and he or she will aid you in reporting the matter to the proper Birch personnel. All reports of fraud, waste or abuse will be handled as confidentially as possible. Reporting possible fraud, waste and abuse to Birch will not preclude the employee from directly reporting it to the government; however, Birch would prefer to handle the matter internally before getting outside entities involved. An employee who reports possible fraud may be contacted during Birch’s investigation for more information.

Every report of perceived fraud, waste or abuse will be fully investigated and corrective action will be taken where appropriate. Violation of this policy will result in disciplinary action, up to and including discharge of employees who violate this policy. In addition, Birch forbids any form of retaliation against employees who report possible fraud or false claims to management, or who cooperate in the investigation of such reports.

In furtherance of Birch Policy, the following specific procedures will be followed:

1. Birch shall provide training and/or information to its employees, independent contractors and agents regarding the False Claims Act Policy.
2. Birch will publish its False Claims Act policy in its employee handbook and in agreements with outside contractors. The Employee Handbook will also include information on the Whistleblower Protection Policy, Birch Hotline and policies and procedures for detecting waste, fraud and abuse.
3. Billing documentation and reporting activities are to be performed in a manner consistent with Medicare, Medicaid and other payor regulations and requirements and in accordance with Birch documentation/billing practices.
4. To assist in its efforts to detect and prevent fraud, waste, and abuse, Birch conducts regular audit and monitoring procedures.
5. Any employee who engages in actions that violate this policy, as well as any employee who has knowledge of any other employee who is engaging in actions that violate the policy, will face disciplinary action, up to and including discharge and any other remedies available by law.
6. Any employee, contractor, or agent who has any reason to believe that anyone is engaging in false billing practices or false documentation of services is expected to report the practice according to Birch’s Reporting of Compliance Concerns and Non-Retaliation Policy and Procedure.
7. Any employee who commits or condones any form of retaliation will be subject to discipline up to, and including, termination.

Hotline Reports of Possible Misconduct

If a Birch employee, independent contractor or agent has any reason to believe that anyone is engaging in false or fraudulent billing practices, that individual should immediately report the practice in accordance with Birch’s Hotline Policy and Procedures. Birch’s Confidential Compliance Hotline telephone number is 212-616-1804.

New York State Law

A New York statute passed in 2006 requires providers of healthcare services and suppliers under the Medicaid program for which Medicaid is a substantial portion of their business operations to certify to the Department of Health that their compliance program satisfies the elements required. Birch is providing guidance to employees and others consistent with the foregoing in furtherance of the law. Inspections are conducted by the state Medicaid Inspector General. The Inspector General may pursue civil and administrative remedies when he or she finds fraud, abuse or improper or illegal practices within the medical assistance program. Complaints may be made by formal complaint or hotline (1-877-87FRAUD). The state law provides that local social service districts may share in certain instances in damage awards for violations of the law. Penalties also are provided upon conviction of penal law violations.

New York State False Claims Act (State Finance Law §§187-194)

The New York State False Claims Act closely tracks the federal False Claims Act. It imposes fines on individuals and entities that file false or fraudulent claims for payment from any state or local government, including health care programs such as Medicaid. The penalty for filing a false claim is $6,000 - $12,000 per claim and the recoverable damages are between two and three times the value of the amount falsely received. In addition, the false claim filer may be responsible for the government’s legal fees.

Similar to the Federal false Claims Act, the Government, or an individual citizen acting on behalf of the Government (a “Relator”), can bring actions under the New York State False Claims Act. This Act prohibits discrimination against an employee for taking lawful actions in furtherance of an action under the Act. Any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the False Claims Act is entitled to all relief necessary to make the employee whole.

There are several other Federal and New York State laws that prohibit making false statements and may result in criminal prosecution (including, but not limited to the following: Social Service Law § 145-b- False Statements; Social Service Law § 366-b-Penalties for Fraudulent Practices; NY Penal Law Article 175- Written False Statements; NY Penal Law Article 176-Insurance Fraud; and NY Penal Law Article 177- Health Care Fraud.)

Protections Against Retaliation For Reporting Violations

If an employee discovers Medicaid or Medicare fraud occurring within Birch, he or she should follow Birch policy for detecting fraud, waste, and abuse. Should an employee choose to report the abuse directly to the government, he or she will not be retaliated or discriminated against in any way by Birch.

If an employee feels he or she is subjected to retaliatory action by Birch for reporting the false claim, the False Claims Act provides for relief, including: reinstatement, back pay, or compensation for any damages that an employee may incur, including litigation costs and attorneys’ fees, should the employee bring an action against Birch. An employee who is retaliated against for reporting any fraudulent health care claims or being part of any proceedings related to false claims can bring an action in court to receive any of the relief that is listed above.

The New York “Whistleblower Law” has been amended to protect employees who are discriminated against because they disclose to a supervisor or public body any policy or practice of an employer that constitutes healthcare fraud under state law. Remedies include: reinstatement, back pay and lost benefits, costs and reasonable attorneys fees.

Any form of retaliation against any employee who reports a perceived problem or concern in good faith is strictly prohibited.

Employees are encouraged to report any action they believe constitutes retaliation to the Director of Human Resources or Compliance Officer before resorting to litigation or filing government complaints.

New York Labor Law §741

Under this law, a health care employer may not take any retaliatory action against an employee if the employee discloses certain information about the employer’s policies, practices or activities to a regulatory, law enforcement, or other similar Birch or public official. Protected disclosures are those that assert that, in good faith, the employee believes constitute improper quality of patient care.

The employee’s disclosure is protected under this law only if the employee first brought up the matter with a supervisor and gave the employer a reasonable opportunity to correct the alleged violation, unless the danger is imminent to the public or patient and the employee believes in good faith that reporting to a supervisor would not result in corrective action. If the employer takes a retaliatory action against the employee, the employee may sue in state court for reinstatement to the same, or an equivalent position, any lost back wages and benefits and attorneys’ fees. If the employer is a health care provider and the court finds that the employer’s retaliatory action was in bad faith, it may impose a civil penalty of $10,000 on the employer.

Any employee interested in more information regarding the False Claims Act may visit the website of office of the Medicaid Inspector General at: www.omig.state.ny.us.