Tuesday, December 15, 2015

In Home Personal Care Worker Agency and Owners Agree to Civil Resolution of Federal False Claims Case in Wisconsin - Why Health Care Providers Need Compliance Plans

There has been an increased number of lawsuits filed under the qui tam – or whistleblower – provisions of the False Claims Act, which allows private citizens with knowledge of health care fraud on the state or federal government to bring a civil action on their behalf. These cases can also involve claims submitted to state Medicaid programs (Medi-Cal in California) since they are in part federally funded. 

I discuss below how to develop compliance programs so a health care provider can show that there are no "false claims" and reduce the risk of having a lawsuit filed against them. False claims are not claims that were negligent or mistakes. Instead, false claims only cover claims that were submitted with deliberate knowledge of the falsity of the claim or deliberate ignorance of the falsity of the claim. Compliance programs - even modest ones - help prevent a whistleblower from claiming that there was deliberate knowledge or ignorance. 

A recent case that was settled involved claims submitted for personal care worker services to the Wisconsin Medicaid Program. In California, this is known as the IHHS (In Home Supportive Services). The private citizen whistleblower alleged that Atlas Healthcare, Inc., and its owners, Deana Bajanen and Sheena Jones knowingly submitted false claims for personal care worker services to the Wisconsin Medicaid Program for patients that did not need the services or did not need the level of services for which Atlas billed the Medicaid program. Atlas is located in Wisconsin. 

The United States and State of Wisconsin intervened and joined the case as parties. Once the government intervenes, it usually gives the whistleblowers' complaints significant credibility.  If the government declines to intervene, it is often a sign that the complaints are not credible. 

The Wisconsin Medicaid Program pays for medically necessary personal care services, which are services intended to assist a recipient with activities of daily living necessary to maintain a recipient in his or her place of residence in the community. 

The United States and the State of Wisconsin reached a civil settlement agreement with Atlas Healthcare, Inc., and its owners, Deana Bajanen and Sheena Jones, for $435,000 pursuant to the federal False Claims Act on November 18, 2015.  The case is captioned as U.S. and State of Wisconsin ex rel. Ritacca v. Atlas Healthcare Inc., et al., Case No. 10-C-253. 

This is not a large settlement and could simply reflect that the company and its owners realized that the cost of defense could equal the settlement and that a settlement was needed to obtain a certain result.

As part of the resolution, the whistleblower will receive a share of the settlement. This is why whistleblowers bring the cases - to earn money from the company. Since most whistleblowers are former employees, a key part of compliance plans is to have a business culture where employees are required to report any suspicions or concerns regarding violations of rules, regulations or billing irregularities. 

Attorney Commentary - Need for Compliance Program: One of the points to learn from these cases is the importance of having compliance program as part of the health care business so there is a duty of employees to report an alleged suspicion of false claims or billing irregularities. A compliance plan can help shield companies and their executives from criminal or civil cases. For example, many cases are brought by former employees who did not have exit interviews where they are asked if they know of or suspect any wrongdoing and where there was no . 

There is a huge difference between erroneous claims and fraudulent (intentional, reckless or fraudulent) claims. A good compliance program is preventative risk management. It also helps avoid nuisance suits by former employees as well as showing employees the culture of following the regulations. We've seen employees not understand the rules or think there is wrongdoing when the billing rules are being followed.

While hospitals and large entities make this part of their corporate culture, the Office of Inspector General (OIG) have regulations for physician and smaller health care providers that encourage them to implement a voluntary compliance program. There is no requirement to have all the portions of compliance added at once but starting is an excellent idea given the risks that occur if a former employee complains or there is an investigation.

Compliance programs should include the following many of which are low cost and add to a better workplace: 

(1) designation of a compliance officer; 
(2) internal monitoring and auditing on a regular basis of selected cases; 
(3) regular staff meetings regarding compliance issues;
(4) keeping open lines of communication with employees on these issues; 
(5) employee discipline standards where employees are disciplined if they violate the rules (accepting gifts or payments, etc.);
(6) training and education on compliance issues and billing pertinent to practice areas;
(7) responding appropriately to detected violations or complaints; and
(8) exit interviews of employees with handwritten questionnaire that addresses these issues.

It appears to me that most health care businesses do not know how to get started on these programs and worry that it will be exhorbitantly expensive and time consuming. This is because it has not been institutionalized. Just like not following wage and hour regulations or employee manuals can cost companies more money in the long run, it is the same with health care compliance. 

We have developed compliance programs that phase in and become a part of the business culture over time so that costs are phased in with reasonably monthly fixed fees. We often handle these with HIPAA compliance at the same time given the risk exposure there.

Posted by Tracy Green, Esq.


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