Replaces Policy Dated
1/1/07, 9/1/07, 2/10/09, 1/15/10, 9/1/13
September 1, 2018
Ethics and Compliance Policy Committee - 6/2018
All employees and, as defined below, contractors or agents of Company affiliates located in the State of Colorado or providing services to Medicare or Medicaid providers located in the State of Colorado, including, but not limited to, hospitals, ambulatory surgery centers, outpatient imaging centers, home health agencies, physician practices, service centers, and all Corporate Departments, Groups, Divisions and Markets.
To comply with certain requirements set forth in the Deficit Reduction Act of 2005 with regard to federal and state false claims laws.
Company affiliates who are Medicare or Medicaid providers in Colorado or provide services to Colorado Medicare or Medicaid providers must ensure that all employees, including management, and any contractors or agents are educated regarding the federal and state false claims statutes and the role of such laws in preventing and detecting fraud, waste and abuse in federal health care programs.
False Claims Laws
One of the primary purposes of false claims laws is to combat fraud and abuse in government health care programs. False claims laws do this by making it possible for the government to bring civil actions to recover damages and penalties when healthcare providers submit false claims. These laws often permit qui tam suits as well, which are lawsuits brought by lay people, typically employees or former employees of healthcare facilities that submit false claims. There is a federal False Claims Act. Colorado has adopted a similar false claims act that contains qui tam and whistleblower protection provisions that are similar to those found in the federal False Claims Act.
Federal False Claims Laws
Under the federal False Claims Act, any person or entity that knowingly submits a false or fraudulent claim for payment of United States Government funds, or knowingly retains an overpayment of such funds more than 60 days, is liable for significant penalties and fines. The fines include a penalty of up to three times the Government’s damages, civil penalties ranging from $10,957 to $21,916 per false claim, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus the costs of the civil action against the entity that submitted the false claims. Generally, the federal False Claims Act applies to any federally funded program. The federal False Claims Act applies, for example, to claims submitted by healthcare providers to Medicare or Medicaid.
One of the unique aspects of the federal False Claims Act is the “qui tam” provision, commonly referred to as the “whistleblower” provision. This provision allows a private person with knowledge of a false claim to bring a civil action on behalf of the United States Government to recover the funds paid by the Government as a result of the false claim. If the suit is ultimately successful, the whistleblower who initially brought the suit may be awarded a percentage of the funds recovered. In addition, the United States Government may elect to join the qui tam suit. In this case, if the suit is successful, the percentage of the funds awarded to the whistleblower is lower because the Government will take over the expenses of the suit. However, regardless of whether the Government participates in the lawsuit, the court may reduce the whistleblower’s share of the proceeds if the court finds that the whistleblower planned and initiated the false claims violation. Further, if the whistleblower is convicted of criminal conduct related to his role in the false claim, the whistleblower will be dismissed from the civil action without receiving any portion of the proceeds.
The federal False Claims Act also contains a provision that protects a whistleblower from retaliation by his or her employer. This applies to any employee who is discharged, demoted, suspended, threatened, harassed, or discriminated against in his or her employment as a result of the employee’s lawful acts in furtherance of a false claims action. The whistleblower may bring an action in the appropriate federal district court and is entitled to reinstatement with the same seniority status, two times the amount of back pay, interest on the back pay, and compensation for any special damages as a result of the discrimination, such as litigation costs and reasonable attorney’s fees.
A similar federal law is the Program Fraud Civil Remedies Act of 1986 (the “PFCRA”). It provides administrative remedies for knowingly submitting false claims and statements. A false claim or statement includes submitting a claim or making a written statement that is for services that were not provided, or that asserts a material fact that is false, or that omits a material fact. A violation of the PFCRA results in a maximum civil penalty of $5,000 per claim plus an assessment of up to twice the amount of each false or fraudulent claim.
Colorado False Claims Laws
The Colorado Medical Assistance Act (the “CMAA”) makes it unlawful for any person to: (a) knowingly present, or cause to be presented, a false or fraudulent claim for payment or approval; (b) knowingly make, use, or cause to be made or used a false record or statement material to a false or fraudulent claim; (c) have possession, custody, or control of property or money used, or to be used, by the State in connection with the CMAA and knowingly deliver, or cause to be delivered, less than all of the money or property; (d) authorize the making or delivery of a document certifying receipt of property used, or to be used, by the State in connection with the CMAA and, intending to defraud the state, make or deliver the receipt without completely knowing that the information on the receipt is true; (e) knowingly make, use or cause to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the State in connection with the CMAA, or knowingly conceal or knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the State in connection with the CMAA. See Colo. Rev. Stat. § 25.5-4-305.
Violations of the CMAA are civil offenses and may result in significant monetary penalties of not less than $5,500 and not more than $11,000, plus three times the amount of damages that the State sustains because of a violation of the CMAA. In addition, certain liabilities may be reduced if the violator furnishes the State with all information known to the violator within thirty (30) days of receiving such information, provided that the violator does not have knowledge of an investigation at the time the violator furnishes such information. See Colo. Rev. Stat. §§ 25.5-4-305(1)-(2).
The Colorado Attorney General shall investigate suspected violations of the CMAA and may bring civil action against a person that has violated the CMAA. An individual may also bring a private civil action on behalf of the individual and the State. In the event the qui tam action is successful, the individual bringing the civil action may be awarded a percentage of the funds recovered. See Colo. Rev. Stat. §§ 25.5-4-306(1)-(2), (4).
In addition to the CMAA, Colorado has adopted a statute making it unlawful to offer a false instrument to a public employee for recording in a public record. Violations of this statute are criminal offenses and are punishable by imprisonment and significant monetary penalties. See Colo. Rev. Stat. § 18-5-114.
The CMAA contains an employee protection provision that provides any employee, contractor, or agent with all relief necessary to make the employee, contractor, or agent whole if the employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by the employer or by any other person because of lawful acts done by the employee, contractor, or agent or associated others in furtherance of an effort to stop any violations of the CMAA. See Colo. Rev. Stat. § 25.5-4-306(7)(a).
Such relief under CMAA’s whistleblower protections include, but are not limited to, the following: reinstatement with the same seniority status that the employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney’s fees. See Colo. Rev. Stat. § 25.5-4-306(7)(b).
Reporting Concerns Regarding Fraud, Abuse and False Claims
The Company takes issues regarding false claims and fraud and abuse seriously. The Company encourages all employees, management, and contractors or agents of the Company’s affiliated facilities to be aware of the laws regarding fraud and abuse and false claims and to identify and resolve any issues immediately. Issues are resolved fastest and most effectively when given prompt attention at the local level. Therefore, the Company, encourages its affiliated facilities’ employees, managers, and contractors to report concerns to their immediate supervisor when appropriate. If the supervisor is not deemed to be the appropriate contact or if the supervisor fails to respond quickly and appropriately to the concern, then the individual with the concern should be encouraged to discuss the situation with the Company’s human resources manager, the Company’s ECO, another member of management, or with the Company’s Ethics Hotline (1-800-455-1996).
Employees, including management, and any contractors or agents of Company-affiliated facilities should be aware of related facility policies regarding detection and prevention of health care fraud and abuse. These policies and procedures can be accessed on Atlas, the Company’s Intranet site, or the Company website at www.hcahealthcare.com. The following are some of the policies that are relevant to this policy and to the prevention and detection of fraud and abuse: (1) EC.025-Reporting Compliance Issues and Occurrences to the Corporate Office Policy; (2) REGS.GEN.015-Correction of Errors Related to Federal and State Healthcare Program FFS Reimbursement Policy; and (3) RB.009- Reporting of Cost Report Overpayment Policy. Note that employees, contractors, and agents of Company affiliates providing services to other, non-affiliated facilities should also understand that all such facilities are expected to have similar policies applying to contractors (including the Company) requiring (1) compliance with federal and state laws, including false claims laws; (2) reporting of potential overpayments and compliance concerns; and (3) the whistleblower protections described above.
Contractor or agent includes any contractor, subcontractor, agent, or other person which or who, on behalf of the facility, furnishes, or otherwise authorizes the furnishing of Medicare or Medicaid health care items or services, performs billing or coding functions, or is involved in monitoring of health care provided by the facility.
Facility responsibilities include, but are not limited to:
- Ensuring that all employees, including management, and any contractors or agents of the facility, are provided with this policy, within 30 days of commencing employment or contractor status.
- Ensuring that the Company handbook includes a detailed summary of this policy.
- Revising this policy as necessary to comply with changes in the law. Changes must be documented and implemented. When policies and procedures are revised, the previous versions of the policies and procedures must be retained for ten (10) years.
- Colo. Rev. Stat. §§ 25.5-4-304 & 305 (previously codified at Colo. Rev. Stat. §§ 26-4-1101, et seq.)
- Colo. Rev. Stat. § 25.5-4-306
- Colo. Rev. Stat. § 18-5-114
- S-06-219, 65th Leg., 2d Spec. Sess. (Colo. 2006)
- 31 U.S.C. §§ 3801-3812
- 31 U.S.C. §§ 3729-3733
- Deficit Reduction Act of 2005, Sections 6031, 6032
- HCA Code of Conduct, “Resources for Guidance and Reporting Concerns”