UW Hospitals and Clinics False Claims Act (Whistleblowers)

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I. PURPOSE

To provide information (a) to employees, contractors, and agents regarding the federal False Claims Act, and (b) to employees regarding certain protections available to whistleblowers with regard to certain federal contracts.

II. Policy

This policy will provide UWHC, its employees, agents, and contractors with information regarding the federal False Claims Act and the role of that law in preventing and detecting fraud, waste and abuse in federal health care programs. This policy will also provide UWHC employees with information regarding rights and protections available to employees for reporting certain types of concerns regarding federal contracts (e.g., gross waste of federal funds).

III. False Claims Act

The primary purpose of the federal False Claims Act is to combat fraud and abuse with regard to federal health care programs. The False Claims Act does this by making it possible for the federal government to bring legal action against health care providers who submit "false claims." The False Claims Act also permits lawsuits brought by individuals, typically employees or former employees, who have knowledge of fraudulent activities. These individuals are called "qui tam relators" or "whistleblowers."

Under the False Claims Act, any individual or organization that knowingly submits a false or fraudulent claim for payment for services (e.g. health care services) pursuant to a federally funded program (e.g. Medicare) may be liable for significant fines and penalties.

Knowledge requirement

A. Under the False Claims Act, "knowing," "knowingly," or "knowledge" means that the person or organization:

  1. Has actual knowledge; or

  2. Acts in deliberate ignorance of the truth or falsity of the information; or

  3. Acts in reckless disregard of the truth or falsity of the information

B. As it applies to UWHC, an organization can be held liable under the False Claims Act if it knew, should have known, or disregarded information that indicated that a claim for payment of health care services to the federal government was false. Examples include, but are not limited to:

  1. Submitting a claim for services that were not provided;

  2. Submitting a claim for services that were not "medically necessary" under federal billing rules; and

  3. Coding a service or a patient's diagnosis as "more complex" than documentation supports in order to receive higher reimbursement.

C. Mistakes - which all individuals and organizations make - generally do not give rise to a False Claims Act violation.

Potential liability

Under the statute, the federal government can assess a fine of between $5,500 and $11,000 per claim plus up to 3 times the total amount of damage sustained by the government depending on the circumstances (e.g. the organization did not properly disclose known violations or did not cooperate with the investigation).

"Qui Tam" or "Whistleblower" provisions

The qui tam provisions under the False Claims Act define the requirements that must be met in order to bring forth a "qui tam" (a private individual) lawsuit. The federal government may choose to intervene and direct the lawsuit if it believes there is merit to the case. However, the qui tam relator and his or her attorney may proceed with the lawsuit on their own even if the government does not join in the lawsuit. If the lawsuit is successful, qui tam relators may share in a percentage of the total amount of fines.

The False Claims Act provides statutory protection to employees from retaliation (e.g. being fired, demoted, harassed, threatened, etc.) by an employer because of an employee's participation in a qui tam action. Such protections include, but are not limited to reinstatement at the same seniority level, two (2) times the amount of salary back pay with interest, and attorneys fees resulting from bringing forth the employment action.

UWHC measures to prevent and detect false claims and potentially fraudulent behavior

UWHC strives, and expects, that its employees will do everything they can to prevent and detect/report false claims and/or potentially fraudulent behavior. The following are examples of measures that UWHC takes to accomplish this:

  1. Providing staff training

  2. Applying "claims scrubbing" software to UWHC's billing system (captures claims with potential billing errors and holds them until they can be manually reviewed

  3. Investigating reports of potential violations from staff

  4. Investigating complaints regarding potential violations from patients, family members, friends, and UWHC visitors

  5. Maintaining internal departmental monitoring process

  6. Performing internal audits

  7. Performing internal risk assessments

  8. Communicating with state and/or federal agencies regarding potential concerns

IV. Whistleblower protections for certain federal contracts

Under a federal government pilot program, employees of contractors of the federal government, including the University of Wisconsin Hospitals and Clinics, are afforded protection against reprisal for whistleblowing activities in connection with certain federal contracts. The pilot program is effective at least until January 1, 2017.

Under the pilot program, employees are protected against reprisal for reporting information the employee reasonably believes is evidence of gross mismanagement of a federal contract; gross waste of federal funds; abuse of authority relating to a federal contract; substantial or specific danger to public health or safety; or violation of law, rule, or regulation related to a federal contract. More information regarding the pilot program is available in the attached document (Employee Whistleblower Rights and Protections related to Certain Federal Contracts).

V. Modifications

This Policy creates no rights, contractual or otherwise. Statements of policy obtained herein are not made for the purpose of inducing any person to become or remain an employee of UWHC and should not be considered "promises" or as granting "property" rights. UWHC may add to, subtract from and/or modify this Policy at any time. Nothing contained in this Policy impairs the right of a non-represented employee or UWHC to terminate the employment relationship at-will. For represented employees, who are not at-will employees, this Policy does not supersede, limit nor grant any rights beyond those provided by the applicable collective bargaining agreement.

VI. Documents

Employee Whistleblower Rights and Protections related to Certain Federal Contracts (pdf)

VII. Coordination

Senior Management Sponsor: Sr. VP General Counsel, Legal
Author: Compliance and Privacy Officer

Approval Committee: Administrative Policy and Procedure Committee