Healthcare Fraud: Identifying and Assessing Fraud Risks, - - PowerPoint PPT Presentation

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Healthcare Fraud: Identifying and Assessing Fraud Risks, Implications of Current Enforcement, Ensuring Compliance

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1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, JUNE 9, 2016

Benjamin J. Fenton, Partner, Fenton Law Group, Los Angeles Matthew M. Curley, Member, Bass Berry & Sims, Nashville, Tenn.

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Assessing Healthcare Fraud Risks, Implications

• f Current Enforcement & Ensuring Compliance

Matthew M. Curley Bass Berry & Sims PLC Nashville, Tennessee mcurley@bassberry.com Benjamin J. Fenton Fenton Law Group Los Angeles, California bfenton@fentonlawgroup.com

June 9, 2106

Healthcare Fraud Enforcements Efforts

6

1 2 3 4 5 6 2011 2012 2013 2014 2015 $3.1 $4.9 $3.8 $5.7 $3.6

Healthcare Fraud Enforcement Results

Civil Fraud Recoveries FY 2011 - 2015 ($ in Billions)

Source: Fraud Statistics – Overview, Civil Division, U.S. DOJ

7

False Claims Act

• Prohibits knowingly making or causing the submission of false

claims for payment to the federal government

• Prohibits knowingly retaining money owed to the government
• Provides for treble (3x) damages and

per claim penalty of between $5,500 and $11,000

• Allows for private parties (qui tam relators)

to bring suit on behalf of the government and participate in % of any recovery

8

Damages Theories in Civil Investigations

Establishing Damages in FCA Cases

• Guiding principle is “to make the government whole” for

damages incurred “because of” a violation of the FCA

• Measure of damages may depend on the nature of the conduct

under investigation

• Government typically seeks money paid out because of the false claim
• ver and above what would have been paid if the claims were truthful
• E.g., healthcare provider would have received no reimbursement for

claims tainted by violation of the Anti-Kickback Statute

• No credit for “value” received by the government

for the goods or services provided to beneficiaries of government healthcare programs

9

New Qui Tam Lawsuits

Number of New Qui Tam Lawsuits Filed by Year (FY 2011 - 2015)

Source: Fraud Statistics – Overview, Civil Division, U.S. DOJ

500 550 600 650 700 750 800 2011 2012 2013 2014 2015 635 632

10

FCA Relator Recoveries

Relator Recoveries FY 2011-2015 ($ in Millions)

Source: Fraud Statistics – Overview, Civil Division, U.S. DOJ

100 200 300 400 500 600 2011 2012 2013 2014 2015

11

Stark Law

• Prohibits physicians and immediate family members with a

direct or indirect financial interest in an entity from referring Medicare patients to that entity for “designated health services”

• Strict liability statute
• Numerous exceptions may apply
• Space leases
• Medical directorships
• EHR donations
• Violations may result in civil monetary

penalties and possible exclusion

• May form basis of False Claims Act

violation

12

Business Arrangements: Exceptions to Stark

• Safe Harbor for personal services and management

contracts, 42 C.F.R. § 411.357(d)):

• Agreement is set out in writing and signed
• The agreement covers and specifies all of the services to be provided
• Specifies the schedule and length of time
• Not less than 1 year: If arrangement is terminated, the parties may not

enter into a similar arrangement during the first of the original term.

• Compensation is set out in advance and is consistent with fair market

value

• Cannot take into account volume or value of referrals
• Hold over month-to-month (up to 6 months) following a term of at least
• ne year is permitted assuming all provisions of the exception are

satisfied.

13

Business Arrangements: Exceptions to Stark

• Bona Fide Employment Exception, 42 C.F.R. §

411.357(c)):

• An employer may employ a bona fide employee physician

(or immediate family member) if the following conditions are met:

• The employment is for identifiable services
• The amount of remuneration under the employment is

consistent with fair market value

• Remuneration does not take into account the volume or value
• f any referrals by the referring physician
• The remuneration is provided under a commercially

reasonable agreement.

• Payment may include productivity bonus based upon

physician’s personally performed services. (i.e. RVUs)

14

Business Arrangements: Exceptions to Stark

• Rental of office space or equipment,

42 C.F.R. § 411.357(a) , (b):

• Payment of the use of office space made by a lessee to a lessor if

there is a rental or lease agreement meeting the following conditions:

• Agreement is in writing, signed and specifies the premises covered.
• If the lease only provides access to the premises for periodic intervals, rather than on a full-

time basis, the lease must specify the exact schedule and the rent for such intervals.

• Term of the agreement must be at least 1 year (If lease is terminated before the first year,

the parties may not enter into a similar arrangement during the first year of the original term)

• Space rented or leased does not exceed that which is reasonable and necessary for the

legitimate business purpose of the lease or rental.

• Space used exclusively by the lessee when being used by the lessee, except that lessee can

make pro rata payments for the use of common area space

• Rental charges over the term are set in advance and consistent with fair market value.
• Rental charges over the term are set in advance and consistent with fair market value

15

Business Arrangements: Exceptions to Stark

• Rental of office space or equipment (cont.)
• Rent is not determined in a manner that takes into account

the volume or value of referrals

• Not determined using a formula based on –
• A percentage of the revenue raised, earned, billed, collective or
• therwise attributable to the services performed or business

generated or

• Per-unit of service rental charges, to the extent that such

changes reflect services provided to patients referred by the lessor to the lessee

• Agreement would be commercially reasonable even if no

referrals were made between the lessee and lessor

• Holdover month to month rental for up to 6 months

immediately following the expiration of an agreement of at least 1 year that otherwise met all the conditions above, provided the holdover period is on the same terms.

16

Business Arrangements: Exceptions to Stark

• Physician recruitment, 42 CFR § 411.357(e):
• Remuneration by a hospital to a physician to induce the

physician to relocate his or her medical practice to the “geographic area” served by the hospital in order to become a member of the hospital’s staff, if the following conditions are met:

• Arrangement is set out in writing and signed by both parties
• Not conditioned on the physician’s referral of patients to the

hospital

• Remuneration is not determined by the volume or value of actual or

anticipated referrals by the physician or other business generated between the parties

• Physician must be allowed to establish staff privileges at any other

hospital(s) and to refer business to any other entities

17

Business Arrangements: Exceptions to Stark

• Physician recruitment (cont.)
• “Geographic Area” defined as lowest number of contiguous

zip codes drawing at least 75 percent of its inpatients

• Recruited physician must join medical staff
• Recruited physician must move his/her practice location

from outside hospital’s service area into hospital’s service area.

– Must move at least 25 miles or – Over the next 3 years the physician’s new medical practice derives at least 75 percent of its revenues from medical services furnished to patients not see or treated by physician during the preceding 3 years, measured on an annual basis

18

Business Arrangements: Exceptions to Stark

• Physician recruitment (cont.)
• Payment to group practice: Remuneration provided by a

hospital to a physician either indirectly through payments made to another physician practice or directly to a physician who joins a physician practice

• All remuneration must be passed directly to the

recruited physician

– Except for actual costs incurred by the medical group, which the group can keep – In the case of income guarantee , costs allocated by the physician practice must not exceed the actual additional implemental costs attributable to the recruited physician

19

Anti-Kickback Statute

• Prohibits asking for or receiving anything of value in

exchange for referrals of federal healthcare program business

• OIG has issued safe harbors
• Space and equipment leases
• Personal services and management contracts
• Criminal statute; violation punishable

by $25,000 per violation and/or up to five years in prison

• Conviction implicates OIG mandatory

exclusion from federal healthcare programs

• May form basis of False Claims Act violation

20

Anti-Kickback Statute: Safe Harbors

• Employment safe harbor, 42 CFR § 1001.952(i):
• Monies paid by an employer to an employee for “covered

items or services” does not constitute illegal remuneration provide that:

• There is a bona fide employment relationship with the

employer

• The employment constitutes the furnishing of any item or

service for which payment may be made in whole or in part under Medicare, Medicaid, or other Federal health care programs

21

Anti-Kickback Statute: Safe Harbors

• Personal Services Safe Harbor, 42 CFR § 1001.952(d):
• The agreement is set out in writing, signed by the parties and specifies the

services covered by the agreement.

• If the agreement is for periodic, sporadic, or part-time work, the agreement must

specify the schedule of intervals in which services will be performed, the length of said intervals and the exact charge.

• The agreement is for not less than a year.
• Compensation
• set in advance,
• consistent with fair market value
• not determined in a manner that takes into account the volume or value of

referrals or business otherwise generated between the parties for which payment may be made in whole or in part under Medicare, Medicaid or other Federal health care programs

• Services do not involve counseling or promotion of a business arrangement or
• ther activity that violates any State or Federal law
• Services contracted for do not exceed those which are reasonably necessary to

accomplish the commercially reasonable business purposes of the services 22

Anti-Kickback Statute: Safe Harbors

• Practitioner Recruitment Safe Harbor, 42 CFR §

1001.952(n):

• Remuneration to induce a practitioner to relocate primary

place of practice into a “shortage area” for his or her specialty, as long as the following conditions are met:

• Arrangement is in writing and signed by both parties.
• Specific benefits provided, terms of arrangement, and
• bligation of each party.
• If practitioner is leaving an established practice, at least 75

percent of the revenues of the new practice must be generated from new patients

23

Anti-Kickback Statute: Safe Harbors

• Practitioner Recruitment Safe Harbor (cont.)
• Benefits provided cannot last longer than 3 years and the

agreement cannot be renegotiated during that period.

• No requirement that the practitioner make referrals or
• therwise generate business for the entity.
• Practitioner is not restricted from establishing staff

privileges at, referring any services to, or otherwise generating any business for any other entity of his or her choosing

• Benefits may not vary based on business generated for

entity

24

Anti-Kickback Statute: Safe Harbors

• Practitioner Recruitment Safe Harbor (cont.)
• Practitioner agrees to treat patients receiving Federal

Health care program benefits in nondiscriminatory manner

• At least 75 percent of new practice revenues must be from

patients residing in the shortage areas, Medically Underserved Area or who are part of a Medically Underserved Population

• Payment or exchange of anything of value may not directly
• r indirectly benefit any person or entity (other than the

practitioner) in a position to make or influence referrals

25

Anti-Kickback Statute: Safe Harbors

• Medical Office Lease Arrangements (Office/Equipment)
• Lease is in writing and signed by the parties
• Term must be at least for a year
• If lease is intended to provide lessee with periodic access, the

lease must specify the schedule of such intervals, their precise length, and the exact for such intervals

• Rental charge must be set in advance, consistent with fair

market value and does not take into account the volume or value

• f any referrals or other business otherwise generated between

the parties for which payment may be made in whole or in part under Medicare, Medicaid or other Federal health care programs

• Lease must be commercially reasonable to accomplish the

reasonable business purpose of the lease

26

Enforcement Trends

27

Enforcement Trend: Business Arrangements

28

Financial Arrangements with Referral Sources

• U.S. ex rel. Schaengold v. Memorial Health, Inc. (S.D. Ga.) (Dec. 23,

2015)

• $9.8 million settlement to resolve allegations that the hospital

entered into physician employment arrangements as part of physicians’ practice purchase that exceeded FMV, took into account the volume or value of referrals, and were not commercially reasonable

• U.S. ex rel. Payne, et al. v. Adventist Health (Sept. 21, 2015)
• $118 Million settlement to resolve allegations that Adventist violated

the False Claims Act by maintaining improper compensation arrangements with referring physicians and by miscoding claims

• U.S. ex rel. Reilly v. North Broward Hosp. Dist. (Sept. 15, 2015)
• $69.5 million settlement to resolve FCA allegations related to

physician compensation arrangements that were above FMV and not commercially reasonable due to internal tracking of contribution margins from referrals

29

• U.S. ex rel. Barker v. Columbia Regional Healthcare System Inc.

(Sept. 4, 2015)

• $35 Million settlement to resolve former executive’s False Claims

Act suits accusing the Georgia Hospital chain of overpaying referring oncologist

• U.S. ex rel. Drakeford v. Tuomey (Oct. 16, 2015)
• $72.4 million settlement before sale following protracted

litigation related to improper 10-year employment contracts to 19 specialists in exchange for performing all outpatient procedures at the Hospital or its other facilities

• U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr. (M.D. Fla.)
• $85 million settlement to resolve FCA allegations that the

hospital violated the Stark Law by entering into employment contracts with six oncologists above FMC and containing improper incentive bonus

Financial Arrangements with Referral Sources

30

• Devender Batra, M.D. and Belmont Cardiology, Inc.

(N.D. W. Va.)

• $1 million settlement by Dr. Batra to resolve allegations
• f improper compensation between Dr. Batra and two

hospitals

• Investigation into alleged Stark and FCA violations

involving Dr. Batra followed a 2011 settlement with the hospitals after the hospitals self-disclosed noncompliant compensation arrangements with Dr. Batra and Belmont Cardiology

• Hospitals cooperated in investigation against Dr. Batra and

Belmont Cardiology

Financial Arrangements with Referral Sources

31

Financial Arrangements with Referral Sources

• OIG Special Fraud Alert (June 25, 2014)
• Any transfer of value from lab to physicians presents a

substantial risk of fraud and abuse under AKS

• Paying physicians to collect, process, and package patients’

specimens is considered suspect

• Health Diagnostics Laboratory (Virginia) and Singulex

(California) (April 9, 2015)

• Defendants paid $48.5 million to resolve allegations they paid

remuneration to cardiologists in exchange for patient referrals

• Induced physicians to refer patients for blood tests by paying

them processing and handling fees of between $10 and $17 per referral and by routinely waiving co-pays and deductibles

32

Tips to Ensure Compliance

• Develop process for review and approval of all physician

arrangements

• Appropriate business justification for arrangement
• Fair market value
• Satisfies applicable legal requirements
• Update agreements if there is a change in the

relationship

• Detailed tracking of remuneration between all parties to

arrangements

• No payment without documentation
• If the arrangement involves services, track service and

activity logs

• If the arrangement involves space or equipment, monitor

the use of leased space or equipment

33

Enforcement Trend: Retention of Overpayments

34

• Feb. 12, 2016: CMS issues final rule on reporting and

returning overpayments

• Providers must act promptly to investigate any credible

information of a potential overpayment

• CMS will institute a six-year “look back” for overpayments

(and not ten years as originally proposed)

• Providers must report and return overpayments even if

they did not cause the overpayment

Knowing Retention of Overpayments

35

• U.S. ex rel. Kane v. Healthfirst, Inc. (S.D.N.Y.)

Allegations: Defendant failed to timely make refunds to Medicaid as a result of MCO’s software glitch

• 2009: Overcharges began
• 2010: Continuum discovered overcharges and asked Kane to

determine scope of affected claims

• 2011: Kane fired four days after sending email attaching

spreadsheet of claims noting 900+ claims (>$1M)

• 2013: Continuum eventually repaid all claims, but only after

issuance of Civil Investigative Demand

Knowing Retention of Overpayments

36

• U.S. ex rel. Kane v. Healthfirst, Inc. (S.D.N.Y.)
• Allegations: Continuum failed to timely make refunds

to Medicaid as a result of MCO’s software glitch

• 2009: Overcharges began
• 2010: Continuum discovered overcharges and

asked Kane to determine scope of affected claims

• 2011: Kane fired four days after sending email

attaching spreadsheet of claims noting 900+ claims (>$1M)

• 2013: Continuum eventually repaid all claims, but
• nly after issuance of Civil Investigative Demand

Knowing Retention of Overpayments

37

• U.S. ex rel. Kane v. Healthfirst, Inc. (S.D.N.Y.)
• ACA “60-day Overpayment Rule”: “Report and return” a

Medicare or Medicaid overpayment within 60 days “after the date on which the overpayment was identified.”

• Kane decision represented first judicial opinion

interpreting 60-day overpayment rule.

• District Court: “Identification” of overpayments, which

triggers the 60-day repayment obligation, occurs when a company is put “on notice” of potential overpayments, rejecting the Defendant’s argument that “identified” means when the overpayment is “known with certainty.”

Knowing Retention of Overpayments

38

• U.S. ex rel. Odumosu v. Pediatric Servs. of Am. Healthcare

(N.D. Ga.)

• $6.88 million settlement with Pediatric Services of

America (PSA) to resolve claims that PSA failed to report and return overpayments.

• Allegations: Defendants did not refund credit balances
• wed to TRICARE and 20 states' Medicaid programs

between 2007 and 2013

• First settlement based upon a healthcare provider's failure

to identify potential overpayments.

• DOJ press release promised zero tolerance for providers

"keeping American taxpayer dollars unjustly."

Knowing Retention of Overpayments

39

Tips to Ensure Compliance

• Implement processes to ensure potential overpayments

are timely identified and investigated

• Establish multiple layers of billing oversight
• Consider third-party verification for subjective

components

• Monitor patient complaints
• Monitor employee complaints

40

Enforcement Trend: Medical Necessity

41

Medical Necessity

• FCA liability asserted on grounds that the services provided were not

“reasonable and necessary” and therefore should not have been billed

• No dispute that the challenged services have been provided to Medicare

beneficiaries or that billings accurately reflect the services provided

• FCA liability often prefaced on a retrospective review of patients’ medical

records regarding the services receive; key legal issue has become whether claims submitted by provider are “objectively false”

• Medically Unnecessary Invasive Cardiac Procedures
• Continued civil and criminal enforcement against hospitals and physicians

concerning the medical necessity of cardiac procedures

• Cases Involving Patient Status
• Allegations that inpatient admissions should have been billed as outpatient
• r observation services
• Medical Necessity of Long Term Care Services
• Increasing number of FCA cases and settlements based on challenges to the

medical necessity of hospice, home health and skilled services provided to Medicare beneficiaries

42

“Lies, Damned Lies, and Statistics”

Extrapolation to Establish Liability Across Universe of Claims

• Courts increasingly willing to allow government to argue that liability

should be extrapolated across a universe of claims based on review of a sample

• District court decisions in LifeCare Centers of America and

AseraCare allowed government to rely upon statistical sampling to establish liability

• US ex rel. Michaels v. Agape Senior

Community, Inc.

• Fourth Circuit to consider whether statistical

sampling can be used to establish liability

43

Enforcement Trend: Parallel Proceedings

44

Navigating Parallel Proceedings

“To be parallel, by definition, the separate investigations should be like side-by-side train tracks that never intersect.” United States v. Scrushy, 366 F. Supp. 2d 1134, 1139 (N.D. Ala. 2005) “There is nothing improper about the government undertaking simultaneous criminal and civil investigations . . .” United States v. Stringer, 535 F.3d 929 (9th Cir. 2008)

45

Parallel Proceedings

• Government need not bind itself to a single remedy at the outset of

an investigation

• Rather, it may proceed criminally, civilly, administratively or on

parallel tracks

Enforcement Options Criminal Civil Administrative

46

“[I]t is important that criminal [and civil … attorneys coordinate in a timely fashion, discuss common issues that may impact each matter, and proceed in a manner that allows information to be shared to the fullest extent appropriate to the case and permissible by law.”

47

Why Pursue Parallel Proceedings?

Parallel proceedings maximize the government’s available tools and remedies against those committing fraud in a variety of ways, including:

►

Criminal penalties: prison sentence, fines, restitution and asset forfeiture on the criminal side

►

Additional tools available in criminal matters: search warrants, HIPPA subpoenas, undercover operations, faster recovery.

►

Different statutes of limitations: The statute of limitations for civil actions may be as long as six to ten years. See, e.g., 28 U.S.C. §§ 2415(a); 31 U.S.C. § 3731(b). As a result, civil cases may have a much larger “liability window” than criminal cases.

►

Larger damages and penalties: Certain civil statutes, such as the False Claims Act, allow for the government to recover treble damages and certain penalties.

►

Lower burden of proof: In civil cases, the burden typically is only a preponderance of the

• evidence. Also, reckless or willful disregard for the truth may result in liability in a civil case.

►

Different constitutional considerations: In civil cases, the right to invoke the Fifth Amendment privilege against self-incrimination may carry consequences, and the court may draw adverse inferences if Fifth Amendment privileges are invoked.

►

Creative civil remedies are available: In the civil context, the government may obtain asset freezes or injunctions under 18 U.S.C. § 1345 or otherwise (discussed further below); garnishments; suspension and debarment from participation in regulated activity or government programs; or pre-indictment restraint of assets through civil forfeiture actions.

48

Era of Heightened Criminal Enforcement

49

Era of Heightened Criminal Enforcement

Yates Memorandum Key Points:

• DOJ instructed to focus on pursuit of

parallel civil and criminal recovery

• DOJ to focus on individual liability:
• Settlements with companies will

not release civil or criminal claims against individuals

• Factors beyond ability to pay will

drive consideration of whether to pursue civil actions against individuals

• Cooperation credit in resolving a matter

with DOJ will require disclosure of all relevant facts about conduct and individuals involved

50

Self-Disclosure

51

Self-Disclosure: Legal Obligations to Disclose

• Why Disclose?
• Legal and ethical duties
• Effective compliance program
• Avoid risk of further liability
• Affordable Care Act (ACA), 42 U.S.C. § 1128J(d)
• Providers must “report and return” overpayments within 60

days of identification of overpayment

• Retention of overpayment after 60-day deadline results in an

“obligation” under the False Claims Act

• False Claims Act, 31 U.S.C. § 3129(a)(1)(G)
• Violation of the FCA if a person “knowingly conceals or

knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the government”

• FCA violations subject to treble damages and penalties

52

OIG Self-Disclosure Protocol

• Self-Disclosure Protocol issued in 1998
• Matters must involve potential violations of federal

criminal, civil or administrative laws

• Overpayments or errors must be processed through

contractor

• Supplemented by Open Letters in 2006, 2008, and 2009
• Updated SDP issued by OIG in April

2013

• Supersedes previous protocol issued in

1998 and Open Letters

53

OIG Self-Disclosure Protocol

2013 Updated SDP Contains Significant Changes:

• Available for:
• Providers seeking to disclose potential violations of federal criminal, civil or

administrative laws for which exclusion or CMPs are authorized

• Not available for:
• Overpayments or errors
• Stark law violations
• Requirements for disclosure under SDP
• Must “acknowledge conduct is a potential violation” and “explicitly identify the laws that

were potentially violated”

• Waive statute of limitations
• Ensure that corrective actions are implemented and misconduct has stopped
• Must complete internal investigation within 90 days of submission (no longer 90 days

from acceptance)

• Avoid CIA and typical multiplier of 1.5 applied to single damages
• Acceptance into protocol suspends obligation to return overpayment

54

OIG Self-Disclosure Protocol

Mechanics of Disclosure:

• 11 categories of information, including:
• Concise statement of details of misconduct
• Statement regarding laws potentially violated
• Description of corrective action
• Estimation of damages
• Conduct specific information for:
• False billing
• Excluded parties
• Violations of AKS and Stark

55

CMS Self-Referral Disclosure Protocol

• Section 6409 of the ACA
• Required HHS to establish protocol to enable providers to

disclose actual or potential Stark violations

• Authorized HHS to reduce the amounts owed for Stark violations

based upon:

• Nature and extent of the improper or illegal practice
• Timeliness of the self-disclosure
• Cooperation in providing additional information
• Other relevant factors
• CMS Voluntary Self-Referral Disclosure

Protocol issued on September 23, 2010

56

CMS Self-Referral Disclosure Protocol

• Under the SRDP, each disclosure must contain:
• Description of actual or potential violations & legal analysis
• Financial analysis
• Certification
• Submission of a disclosure suspends ACA obligation to return
• verpayment until settlement or withdrawal of disclosure
• SRDP may not be used to obtain determination from CMS

whether Stark violation occurred

57

CMS Self-Referral Disclosure Protocol

• Congressional Report to Congress – March 2012
• 150 self-referral disclosures under SRDP by 148 providers
• 125 hospitals; 11 clinical labs; 8 physician practice groups
• Most commonly reported violations:
• Personal service arrangement exception
• Fair market value
• Space rentals, physician recruitment, non-monetary

compensation

• Through September 2013, 320

provider disclosures under SRDP:

• 35 providers (32 hospitals) have settled

cases for a total of $3.7 million and averaging > $100,000 per settlement

58

Disclosure to U.S. Attorney/ U.S. Department of Justice

• Consideration of whether to self-disclose to

DOJ:

• What is the likelihood an FCA violation has occurred – only

DOJ can release FCA liability

• Was the conduct a mere mistake, or reckless?
• Prepare for full and complete disclosure
• Has the conduct at issue ceased?
• Can the provider quantify potential FCA damages?
• Negotiating the Settlement
• Defining “Covered Conduct”
• Arriving at settlement amount

59

Best Practices in Dealing with Whistleblowers

60

Whistleblower Protection

FCA Anti-Retaliation Provisions

• Provides protection for employee, contractor, or agent
• Prohibited actions include:
• Discharge
• Demotion or suspension
• Threats or harassment
• Other discrimination in terms or conditions of

employment

61

Whistleblower Protection

FCA Anti-Retaliation Provisions

• Requirements for FCA Retaliation Claim:
• Whistleblower must be engaging in protected activity by acting

in furtherance of a qui tam suit

• Employer must know about the lawful acts
• Employer must take adverse action as a result of the lawful acts
• Relief includes:
• Reinstatement with same seniority
• 2x back pay, interest, compensation for special damages
• Attorneys fees

62

Navigating Compliance and Enforcement Matters

Hypothetical Facts Qui tam action filed asserting FCA allegations and alleging that Cardiologist and Cardiology Group performed medically unnecessary cardiac stenting at Hospital’s Cath Lab. In addition to inserting cardiac stents in the Hospital’s Cath Lab, Cardiology Group also leases space from Hospital’s Medical Office Building and Cardiologist serves as the Medical Director of the Hospital’s Cath Lab.

63

Navigating Compliance and Enforcement Matters

Hypothetical Facts Cardiology Group receives Authorized Investigative Demand (AID) requesting documents regarding financial relationships with Hospital. Hospital receives Civil Investigative Demand (CID) for medical records and for testimony regarding Hospital’s financial relationships with Cardiology Group.

64

Navigating Compliance and Enforcement Matters

Hypothetical Facts DOJ considers intervention in qui tam action and considers criminal charges concerning Cardiologist. Cardiology Group evaluates how to accomplish resolution of civil, criminal, and administrative issues.

65