False Claims Act Policy

I. Purpose and Scope
II. Policy
III. Definitions

I. Purpose and Scope

The purpose of this policy is to inform employees, contractors, and agents of Dartmouth-Hitchcock (D-H) of the provisions of the federal and state (New Hampshire) false claims acts (FCAs), including their right to report violations of federal and state law. This policy also includes general information regarding D-H's efforts to combat fraud, waste and abuse and to describe the remedies and fines for violations that can result from certain types of fraudulent activities.

II. Policy

Reporting Fraud, Waste and Abuse

All employees, contractors, and agents of D-H must immediately report to the Corporate Compliance Officer any suspicion of fraud, waste, or abuse in connection with the business of D-H. D-H engages in specific compliance efforts to detect and prevent fraud, waste, and abuse, such as the Corporate Compliance Program.

For more information on the D-H Corporate Compliance Program and specific compliance policies, or on how to report any concerns, please contact the Compliance and Audit Services Department at 603-650-3480 or visit the website. The organization has contracted with a third-party vendor that maintains a 24/7 helpline and can be reached at 1-844-733-0094.

Detailed Information of the Federal False Claims Act

The federal FCA imposes civil (and in some cases criminal) penalties on people and entities who knowingly submit a false claim, or act in deliberate ignorance of the claim's truth or falsity or act in reckless disregard of its truth or falsity or conspire to defraud the government by getting a false or fraudulent claim paid. Specific intent to defraud is not required.

The FCA includes an important provision that allows private citizens to initiate a lawsuit on behalf of the federal government and request the government to join in the suit. In return, that citizen may share a percentage of any recovery or settlements. This type of lawsuit is known as a qui tam and the individual, or relator, is a "whistleblower", who brings forth evidence of the alleged improper conduct. The purpose of this qui tam provision is to give an incentive for whistleblowers to come forward to help the government discover and avoid paying fraudulent claims as well as prosecute those who submit false claims by awarding whistleblowers a percentage of the recovery.

To prevail under a lawsuit, the relator must be the "original source" of the information reported to the federal government. Specifically, the relator must have direct and independent knowledge of the false claims activities and voluntarily provide this information to the government. If the matter disclosed is already the subject of a federal investigation, or if the healthcare provider or supplier has previously disclosed the problem to a federal agency, the relator may be barred from obtaining a recovery under the FCA.

A private legal action under the FCA must be brought within six (6) years from the date that the false claim was submitted to the government. Depending upon the circumstances, a government-initiated claim may be brought up to 10 years after the false claim.

The FCA is not confined to healthcare claims, but extends to any payment requested of the federal government. The FCA applies to billing and claims sent from D-H to any government payor program, including Medicare and Medicaid.

It is the policy of D-H that an employee, contractor or agent of D-H who knowingly submits a false claim will be reported to the necessary authorities. Under the FCA, anyone or any entity that submits a false claim or statement to the government may be fined a civil penalty between $5,500 and $11,000 for each such claim submitted, regardless of the size of the false claim, and the person or entity could be required to pay three times the amount of the damages that the government sustains. In addition, the government can exclude violators from participating in Medicare, Medicaid, and other federal healthcare programs.

Examples of potential false claims include, but are not limited to: (a) billing of items or services that were never rendered by the health care provider; (b) billing for services that are medically unnecessary; (c) upcoding (practice of billing for Medicare/Medicaid using a billing code providing a higher payment rate than the billing code intended to be used for the service or item furnished to the patient); (d) billing separately for services that should be bundled; (e) billing separately for outpatient services that were provided within 72 hours (before or after) an inpatient stay; (f) billing for a discharge in lieu of a transfer.

Whistleblower Protection – Federal Law

The federal FCA protects employees who are discharged, demoted, suspended, harassed, or in any manner discriminated against by their employer because of their participation or assistance (e.g., testimony, initiation of investigation) in a false claim action.

The Act entitles employees to relief to "make them whole", including restatement with the same seniority status they would have had but for the discrimination, twice the back pay, interest on back pay, and compensation for any special damages sustained as a result of the discrimination including litigation costs and reasonable attorneys' fees.

Detailed Information of the Federal Program Fraud Civil Remedies Act

Individuals or entities that commit fraud against the federal government, by false claims or statement, can be assessed money penalties in addition to the penalties of the FCA under the Program Fraud Civil Remedies Act (PFCRA). PFCRA penalties of $5,000 per false claim or statement apply if an individual or entity submits a claim to the federal government that: the individual or entity knows or has reason to know is false, fictitious, or fraudulent; includes or is supported by written statements containing false, fictitious, or fraudulent information; includes or is supported by written statements that omit a material fact, which causes the statements to be false, fictitious, or fraudulent and the individual submitting the statement has a duty to include the omitted fact; or is for payment of property or services that are not provided as claimed.

The $5,000 penalty also applies if a person or company provides written back-up or materials relating to the claim in which the individual or entity asserts a material fact that is false, fictitious or fraudulent; or omits a fact that the individual had a duty to include, the omission causes the statement to be false, fictitious, or fraudulent, and the statement contains a certification of accuracy.

New Hampshire State Law NH RSA 167:61-a et seq.

The state of New Hampshire has its own FCA, which is very similar to the federal FCA. Under the NH statute no person shall knowingly make, present or cause to be made, any false or fraudulent claim for payment of any good or service, or for the determination of any rights or benefits under Medicaid or other state assistance program. Liability to the state for such actions is a civil penalty of not less than $5,000 and not more than $10,000, plus three (3) times the amount of damages that the state sustains because of the act of that person.

The statute defines a claim as any request or demand, whether under a contract or otherwise, for money or property that is made to an officer, employee, agent, or other representative of the state or to a contractor, grantee, or other person, if the state provides any portion of the money or property that is requested or demanded, or if the state will reimburse the contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded.

The statute defines "knowingly" as intentionally making or causing to be made any false or fraudulent statement, or intentionally offering or causing to be offered or presented, in whole or in part, any fraudulent record, document, data or instrument to any state official or law enforcement personnel, in connection with any audit or investigation involving any claim for payment or rate of payment for any good or service under Medicaid or other similar state program.

An action for false claims under the NH statute must be brought within six (6) years from the date that the violation occurred or within three (3) years after the date when facts material to the right of action are known or reasonably should have been known by the official within the office of the attorney general charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

New Hampshire - The Whistleblowers' Protection Act (RSA 275-E)

D-H employees should be aware that they may notify the government themselves if they believe D-H does not respond appropriately when given notification of a potential violation. D-H is prohibited from taking any adverse actions whatsoever against the employee should said person notify the government directly. Protection is available to employees who report violations of law, participate in government investigations or hearings, or refuse to execute illegal directives.

Any employee who lawfully reports information about false claims or suspected false claims that are submitted by others, or participates in an investigation, hearing, or inquiry conducted by any government entity or any court, or refuses to execute a directive that violates any law or rule that adopted by the State of NH or political subdivision of the United States cannot be discharged, threatened, or discriminated against.

If that were to occur, the employee is entitled to reinstatement with the same seniority status, two (2) 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 attorneys' fees.

III. Definitions

  1. Dartmouth-Hitchcock: All Dartmouth-Hitchcock Clinic and Mary Hitchcock Memorial Hospital facilities.
  2. Employees: All employees of Dartmouth-Hitchcock, including but not limited to physicians, nurses, support staff, and administrators.
  3. Contractor or Agent: Includes any contractor, subcontractor, agent, or other person which or who, on behalf of the entity, furnishes, or otherwise authorizes the furnishing of Medicaid health care items or services, performs billing or coding functions, or is involved in monitoring of health care provided by an entity. [NOTE: The definition of "Contractor" or "Agent" is quoted from the December 13, 2006 letter from the Centers for Medicare and Medicaid (CMS) to State Medicaid Directors. In January 2007 CMS confirmed that billing and coding vendors are considered contractors, but that copying and shredding service providers or manufacturers who are not directly paid by Medicaid are not considered contractors.]