I. Purpose and Policy Statement
Accra has a longstanding practice of fair and truthful dealing with its clients, families, health professionals, payers and other business associates. Accra is also committed to complying with all applicable laws and regulations and ensuring that billing to federal and state sponsored programs is accurate and conforms to applicable law. These Policies and Procedures are adopted to comply with the Employee Education about False Claims Recovery provisions of the Deficit Reduction Act of 2005 (hereinafter referred to as the “Deficit Reduction Act”). Section 6032 of the Deficit Reduction Act requires that any entity receiving or making annual Medicaid payments exceeding $5 million establish and disseminate to all of its employees (including management) and
contractors written policies that set forth the entity’s policies and procedures for preventing and detecting fraud, waste, and abuse in federal health care programs and that describe the federal and state false claims laws and related provisions. This policy summarizes Accra’s existing policies and procedures for detecting and preventing fraud, waste, and abuse, including how to report concerns internally, and provides an overview of applicable federal and state laws as required by the Deficit Reduction Act.
This Policy applies to all staff and employees, officers, directors, agents and contractors.
III. Federal False Claims Act
The False Claims Act, 31 U.S.C. §§ 3729-3733 (hereinafter referred to as the “False Claims Act”) provides, in pertinent part:
(a) Any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim paid or approved by the Government; . . . or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person . . . (b) For purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information (1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.
31 U.S.C. § 3729. While the False Claims Act imposes liability only when the claimant acts “knowingly,” it does not require that the person submitting the claim have actual knowledge that the claim is false. A person who acts in reckless disregard or in deliberate ignorance of the truth or falsity of the information can be found liable under the False Claims Act. 31 U.S.C. § 3729(b). In sum, the False Claims Act imposes liability on any person who submits a claim to the federal government that he or she knows (or should know) is false. An example may be a physician who submits a bill to Medicare for medical services she knows she has not provided. The False Claims Act also imposes liability on an individual who may knowingly submit a false record in order to obtain payment from the government. An example of this may include a government contractor who submits records that he knows (or should know) are false and that indicate compliance with certain contractual or regulatory requirements. The third area of liability includes those instances in which someone may obtain money from the federal government to which he may not be entitled, and then uses false statements or records in order to retain the money. An example of this so-called “reverse false claim” may include a hospital who obtains interim payments from Medicare throughout the year, and then knowingly files a false cost report at the end of the year in order to avoid making a refund to the Medicare program.
In addition to its substantive provisions, the False Claims Act provides that private parties may bring an action on behalf of the United States. 31 U.S.C. § 3730(b). These private parties, known as “qui tam relators,” may share in a percentage of the proceeds from a False Claims Act settlement. Section 3730(d)(1) of the False Claims Act provides, with some exceptions, that a qui tam relator, when the Government has intervened in the lawsuit, shall receive at least 15 percent but not more than 25 percent of the proceeds of the False Claims Act action depending upon the extent to which the relator substantially contributed to the prosecution of the action. When the Government does not intervene, section 3730(d)(2) provides that the relator shall receive an amount that the court decides is reasonable and shall be not less than 25 percent and not more than 30 percent.
The False Claims Act provides protection to qui tam relators who are discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of their employment as a result of their furtherance of an action under the False Claims Act. 31 U.S.C. § 3730(h). Remedies include reinstatement with comparable seniority as the qui tam relator would have had but for the discrimination, two times the amount of any back pay, interest on any back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.
IV. Federal Administrative Remedies for False Claims and Statements
The Program Fraud Civil Remedies Act of 1986, 31 U.S.C. §§ 3801-3812 (hereinafter referred to as “PFCRA”), sets forth administrative remedies for making false statements and claims. The penalties under PFCRA are imposed by administrative agencies and are in addition to other remedies that may be prescribed by law, including the False Claims Act. PFCRA imposes liability on persons, including entities, in the following circumstances:
(1) Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a claim that the person knows or has reason to know—
(2) Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a written statement that—
“Knows or has reason to know” under PFCRA does not require proof of specific intent to defraud and means that a person, including an entity, with respect to a statement or claim:
(1) has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
(2) acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(3) acts in reckless disregard of the truth or falsity of the claim or statement.
V. State Laws Imposing Civil or Criminal Penalties for False Claims and Statements
A. Minnesota False Claims Act
The Minnesota False Claims Act, Minn. Stat. §§ 15C.01-.16 (hereinafter referred to as the “MFCA”) is similar to the federal False Claims Act and assists federal and state government in combating fraud and recovering losses due to fraud in government programs, contracts and purchases. MFCA imposes liability on persons, including entities, for the following acts:
(1) knowingly presents, or causes to be presented, to an officer or employee of the state or a political subdivision a false or fraudulent claim for payment or approval;
(2) knowingly makes or uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the state or a political subdivision;
(3) knowingly conspires to either present a false or fraudulent claim to the state or a political subdivision for payment or approval or makes, uses, or causes to be made or used a false record or statement to obtain payment or approval of a false or fraudulent claim;
(4) has possession, custody, or control of public property or money used, or to be used, by the state or a political subdivision and knowingly delivers or causes to be delivered to the state or a political subdivision less money or property than the amount for which the person receives a receipt;
(5) is authorized to prepare or deliver a receipt for money or property used, or to be used, by the state or a political subdivision and knowingly prepares or delivers a receipt that falsely represents the money or property;
(6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the state or a political subdivision who lawfully may not sell or pledge the property; or
(7) knowingly makes or uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state or a political subdivision.
A person or entity is not liable under MFCA for acting negligently, inadvertently or mistakenly. Rather, a person must act “knowingly,” which is defined as 1) having “actual knowledge of the information;” acting “in deliberate ignorance of the truth or falsity of the information;” or 3) acting “in reckless disregard of the truth or falsity of the information.” No proof of specific intent is required.
A violation of MFCA may result in civil penalties of between $5,500 and $11,000 per false or fraudulent claim, plus three times the amount of damages the state sustains as a result of the act, plus the costs and attorneys’ fees the state incurs in bringing legal action. A person or entity may not be liable if it is informed by the original source of the information that one or more false or fraudulent claims have been made against the state and the person or entity repays the amount of actual damages to the state within 45 days after being so informed.
Similar to the federal False Claims Act, MFCA provides that private parties may sustain an action on behalf of the state. Depending on whether the state intervenes in the private action, a successful private party may be entitled to between 15 percent and 30 percent of any recovery plus an award of costs and reasonable attorneys’ and consultants’ fees. However, if the defendant prevails in a private action and the court finds the claim was clearly frivolous, vexatious or brought in substantial part for harassment, then the court may award the defendant costs and reasonable attorneys’ fees against the private party for bringing the action.
MFCA also provides protections to employees disclosing information to the state, a political subdivision or a law enforcement agency. Employers are prohibited from discharging, demoting, suspending, threatening, harassing, denying promotion to, or otherwise discriminating against employees in the terms or conditions of employment because of lawful acts done by the employee on his or another person’s behalf in disclosing information to the state in furtherance of action under MFCA, including investigations and providing testimony. Remedies include reinstatement, twice the amount of lost compensation, interest and special damages.
B. State Whistleblower Protection
In addition to the protections described above, Minn. Stat. § 181.932 provides additional protection to employees from adverse employment action in certain circumstances. Employers are prohibited from discharging, disciplining, threatening, or otherwise discriminating against or penalizing an employee regarding compensation, terms, conditions, locations, or privileges of employment because the employee:
(1) In good faith, reports violations or suspected violations of federal or state laws or rules;
(2) Participates in investigations, hearings or inquiries;
(3) Refuses to perform an action reasonably believed to be in violation of state or federal laws or rules;
(4) Reports, in good faith, below standard health care services situations; or
(5) Is a public employee and communicates scientific or technical study findings that the employee, in good faith, believes are truthful and accurate.
Disclosure of the reporting person’s entity is governed by the Minnesota Data Practices Act, Minn. Stat. ch. 13. Section 181.932 does not protect an employee from statements that are false or made in reckless disregard of the truth.
C. Medical Assistance Fraud
Minn. Stat. § 609.466 provides:
Any person who, with the intent to defraud, presents a claim for reimbursement, a cost report or a rate application, relating to the payment of medical assistance funds pursuant to chapter 256B, to the state agency, which is false in whole or in part, is guilty of an attempt to commit theft of public funds and may be sentenced accordingly.
D. Vulnerable Adult Protections
Minnesota law provides protections for vulnerable adults against financial exploitation and maltreatment. Minn. Stat. § 609.2335 imposes criminal penalties of imprisonment and/or a fine on persons committing the crime of financial exploitation. In summary, acts constituting financial exploitation include:
(1) In breach of a fiduciary duty recognized by law, a person:
(2) Without legal authority, a person:
Minn. Stat. § 626.557 requires reporting of maltreatment of vulnerable adults. Professionals and their delegates engaged in the care of vulnerable adults and employees providing personal care assistance and home health care services are mandatory reporters. Mandatory reporters who have reason to believe that a vulnerable adult is being or has been maltreated, or who has knowledge that a vulnerable adult has suffered an injury that is not reasonably explained must immediate report the information to the county or its designee. Persons making a report in good faith are immune from civil or criminal liability. Mandatory reporters who negligently or intentionally fail to report are liable for damages caused by such failure.
E. Treble Damages
Minn. Stat. § 256B.121 provides:
Any vendor of medical care who willfully submits a cost report, rate application or claim for reimbursement for medical care which the vendor knows is a false representation and which results in the payment of public funds for which the vendor is ineligible shall, in addition to other provisions of Minnesota law, be subject to an action by the state of Minnesota or any of its subdivisions or agencies for civil damages. The damages awarded shall include three times the payments which result from the false representation, together with costs and disbursements, including reasonable attorneys’ fees or their equivalent.
VI. Accra’s Whistleblower Policy
Accra has adopted a policy concerning employee’s whistleblower rights. See policy. VII. Accra’s Fraud, Waste and Abuse Policy and Internal Reporting Procedure Accra has adopted the policies and procedures for detecting and preventing fraud, waste, and abuse. See policy. All employees and responsible parties are required to read and acknowledge by signature the Accra’s Fraud, Waste, and Abuse Policy annually.