Seven steps to limit your qui tam exposure
Seven steps to limit your qui tam exposure
While hospitals can reduce their qui tam risk, no organization can eliminate it entirely, warns Bob Homchick, a health care attorney with Davis Wright Tremain in Seattle. "The system is too complex and the types of violations are too numerous," he says. Moreover, the Department of Justice’s interpretation of "reckless disregard" is too expansive, he adds. "Beyond that, the rewards to the government and relators are simply too sweet," he argues.
Lynn Snyder, a health care attorney with the Washington, DC-based law firm Epstein, Becker & Green, takes a similar view. Whistle-blower false claims cases are unique in the procedural way in which they begin, the procedural way in which they continue, and the procedural way in which they are concluded, she cautions.
Here are seven steps Snyder urges providers to take to limit their qui tam exposure.
I. Don’t bury your head in the sand. Snyder warns that providers must assume that if they have a government receivable, they will also have a subpoena sometime within the next ten years. "You have to be prepared, not afraid," she advises. "The best thing you can do is to educate your employees about their rights if an FBI agent happened to show up at their doorstep on a Sunday night."
II. Chase down the alumni club. The employees who are most frequently contacted by government investigators are former employees, not current ones, according to Snyder. Anything that a provider’s human resource office can do to maintain the name, address, and phone number of those employees can be very valuable, she argues.
III. Don’t forget human resources. Snyder says that one facet of health regulatory due diligence is to rummage through personnel files looking for resignation letters.
She warns that human resource staff, who frequently encounter disgruntled employees, often ignore claims about improper billing and simply file them away.
"You must connect the dots between human resources and compliance and be proactive and reach out to those people to find out if those claims are true," she advises.
IV. Maintain a chronology of government contacts on how to bill. "I save clients a lot of money by tracking down two generations of former employees to find out the real name of the carrier employee who instructed them to do something a certain way," she says. "But they could save a lot of money if they would maintain this chronology."
Likewise, Snyder says the government does not always take the time to track changes in billing rules. "They will come to you based on today’s rules about something that happened in 1990, and it is up to you to recreate the reimbursement history," she warns. "That means it is up to us to do the homework for them."
V. Educate the government. Very often, providers become too fixated on discovering who the whistle-blower is, according to Snyder. Then attempts are made to discredit that person rather than focusing on the allegation, she adds. Snyder’s advice: "Avoid personalizing the matter."
VI. Prepare the client. According to Snyder, attorneys must explain to providers how the False Claims Act works, including how a private party can come forward and how those cases are resolved. She notes that she recently inherited a case from another firm where the client and the law firm were no longer working cooperatively. "The real problem was a breakdown in communication on what these cases are all about," she explains.
VII. How to prevent whistle-blowers. Although it’s against public policy to tell employees they can’t go to the government, you can write an employment agreement whereby an employee waives the right to any financial recovery.
Whether this type of provision will stand up in a court of law is yet to be determined, Snyder notes. "We will find that out in the next few years," she says.
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