Kusserow on Compliance: DOJ reports 2019 False Claims Act Recoveries of over $3B

The DOJ obtained more than $3 billion in settlements and judgments from civil cases involving fraud and false claims against the government in fiscal year 2019. Recoveries since 1986, when Congress substantially strengthened the civil False Claims Act, now total more than $62 billion. Of the more than $3 billion in settlements and judgments recovered, $2.6 billion related to the health care industry.

This was the tenth consecutive year that health care fraud settlements and judgments have exceeded $2 billion. Whistleblower, or qui tam, actions comprise a significant percentage of the False Claims Act cases that are filed. Of the $3 billion in settlements and judgments reported by the government in fiscal year 2019, over $2.1 billion arose from lawsuits filed under the qui tam provisions of the False Claims Act.

During the same period, the government paid out $265 million to the individuals who exposed fraud and false claims by filing these actions. The number of lawsuits filed under the qui tam provisions of the Act has grown significantly since 1986, with 633 qui tam suits filed this past year—an average of more than 12 new cases every week. In its news release, the DOJ noted that it had increased holding individuals accountable and cited examples of actions taken against responsible executives.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Tips for an effective compliance exit interview program

– Useful only if done correctly

Carrie Kusserow has developed and evaluated many compliance-related exit interview programs and has found that one that is properly designed and constructed may give early warning of a potential liability and permit corrective action to prevent escalation of the problem. There is the added benefit that the program may deter departing employees from becoming “whistleblowers” after they have secured new employment and are free of the fear of retribution or retaliation. By affording these employees an opportunity to provide information prior to departure permits the individual a legitimate path for redress of grievance and reduces the likelihood they will turn outside the company to “blow their whistle.”

She found the most cost effective, efficient, and useful programs are those that separate the last day HR exiting process of filling out forms, turning in company property, providing COBRA and other needed information. On the last day, departing employees are often preoccupied with the process of leaving and what is required and may be reluctant to reveal the full and true reasons for leaving. Exit interview should be conducted as far in advance of the last day as possible. They should be a live exchange and not just “fill out the form” process and those conducting the interviews should be properly trained and with the skills to obtain useful information.

If done properly, exit interviews allow departing employees to describe experiences and identify issues for management that could otherwise remain unknown. Most such interviews will likely only take 15 to 30 minutes. The biggest challenge is defining those that the compliance officer should debrief. There is only a limited number that can be done. Generally, the individuals are limited to members of management and those identified as potentially having a grievance against the organization.  She offered the following tips for those considering establishing or enhancing their exit interview program.

 

  1. Create a policy document as to what level of management should be debriefed by the compliance officer. It is important to carefully define covered persons to avoid individuals resisting being interviewed. It should be considered just another formality in the exiting process. It then can be presented as yet another formality that must be followed before exiting the organization.

 

  1. Interviews should be scheduled as soon as possible after the decision to the leave the organization has been made. This permits the organization to take remedial action to any problems raised during the interview before the person leaves.

 

  1. Conduct the interview away from the person’s office to avoid distractions or interruptions in a place where the conversation can be overheard.

 

  1. Use open-ended questions, where the departing employee supplies the answer, are much more effective than having answers given from a predetermined list. Departing employees are typically reluctant to say or do anything that might prejudice their opportunities for future employment. The reliability and usefulness of the results is strongly affected by the skill of the interviewer and whether the employee trusts the interviewer.

 

  1. Include questions about the departing employee’s experience, especially where it involves compliance matters, discrimination, and harassment, etc. The debriefing should include very pointed questions about their work place experience with regards to compliance.

 

  1. Questions should include whether they observed any violations of laws, regulations, Code of Conduct, policies, etc. If so, the compliance office should be alerted.

 

  1. Any management, regulatory, or legal issue raised should be addressed, if possible, before the employee leaves the control of the organization. Taking corrective action while the person is still an employee may forestall that person from taking the same issues with an attorney, government agency, media, etc.

 

For more information or assistance in establishing Compliance Program Exit Interview Programs, contact ckusserow@strategicm.com.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

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Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: OIG program exclusions reported for second half of 2019

Total of 2640 new exclusions added to the LEIE in 2019

Under the Social Security Act, the HHS Office of Inspector General (OIG) is able to exclude individuals and entities from participation in Medicare, Medicaid, and other Federal health care programs. Exclusions are required (mandatory exclusion) for individuals and entities convicted of the following types of criminal offenses: (1) Medicare or Medicaid fraud; (2) patient abuse or neglect; (3) felonies for other health care fraud; and (4) felonies for illegal manufacture, distribution, prescription, or dispensing of controlled substances. The OIG is also authorized (permissive exclusion) to exclude individuals and entities on several other grounds, including misdemeanors for other health care fraud (other than Medicare or Medicaid); suspension or revocation of a license to provide health care for reasons bearing on professional competence, professional performance or financial integrity; provision of unnecessary or substandard services; submission of false or fraudulent claims to a federal health care program; or engaging in unlawful kickback arrangements. The Patient Protection and Affordable Care Act (ACA) added another basis for imposing a permissive exclusion, that is, knowingly making, or causing to be made, any false statements or omissions in any application, bid, or contract to participate as a provider in a federal health care program, including managed care programs under Medicare and Medicaid, as well as Medicare’s prescription drug program.

During this semiannual reporting period, the OIG excluded 1,347 individuals and entities from Medicare, Medicaid, and other federal health care programs. Most of the exclusions resulted from convictions for crimes relating to Medicare or Medicaid, patient abuse or neglect, financial misconduct, controlled substances, or as a result of license revocation. The OIG completed the deployment of a new service for State Medicaid Fraud Control Units (MFCUs) to report convictions through a central web-based portal for exclusion. This improved reporting from those agencies. A list of excluded individuals and entities can be found at https://exclusions.oig.hhs.gov/.

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

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Copyright © 2020 Strategic Management Services, LLC. Published with permission.

Kusserow on Compliance: Debriefing complainants—24 question tips

It is very important to fully debrief any complainants and act in a very timely manner to avoid having them go elsewhere with their information—such as an attorney, government agency, media, etc. Any of these other channels could result in serious problems and possible liability. In many cases the information may come anonymously from the hotline, underscoring the importance that those answering the calls be trained on properly debriefing callers and be familiar with health care related issues.

Also, time is not a friend once information is received that may warrant immediate action. Complicating matters is that frequently a single complaint may include several different allegations, each of which needs to be addressed independently. In the debriefing process, once the story is told, specific clarifying questions need to be asked in guiding the person back through the information. This should be done by asking the standard WHO, WHAT, WHEN, WHERE, and WHY questions. These should be designed to expand on the factual details and to test and corroborate the information and be sure the chronologies of events are established.

It is important also to look for avenues and leads that will provide direction by which to either substantiate the allegations or dismiss them. Inasmuch as the allegations may relate to a specific event, something personal or organization wide, an ongoing process problem, etc. It is impossible to draft a set of question that would apply in every circumstance, however the following gives an idea about the types of questions that can be asked in a formal debriefing.

 

DEBRIEFING QUESTIONS

 

  1. What happened that led to the making of the complaint?
  2. Why are you coming forth with it now?
  3. What occurred, where, when, and how?
  4. Did the person who engaged in the conduct engage in similar conduct with anyone else?
  5. Has anyone else complained to you about similar conduct?
  6. When did it occur (date and time)?
  7. Where did it take place?
  8. How did you respond when it occurred?
  9. Who did you discuss it with and when? 
  10. What did you say? What did they say?
  11. How has this incident affected you?
  12. Has your job been affected in any way?
  13. Who else was present when the act occurred? 
  14. Where were they in relation to you? 
  15. Who else has any knowledge of the act? 
  16. Has anyone else discussed it with you? 
  17. If so, who and what did that person say? 
  18. Did anyone see you immediately after the act?
  19. Who else was involved, knows about, or witnessed it?
  20. Who else have you told (employees, supervisor, attorney, media,)?
  21. Why do you think it happened?
  22. What documentary evidence would help in the investigation?
  23. What do you believe should be done to resolve this matter?
  24. Has is happened before (an isolated event or part of a pattern)?

 

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

Connect with Richard Kusserow on LinkedIn.

Subscribe to the Kusserow on Compliance Newsletter

Copyright © 2019 Strategic Management Services, LLC. Published with permission.