Providers Clamor for Guidance on Whistleblower Info

ATLANTA–A federal whistleblower protection mandate that went
into effect Jan.1 has frustrated many Medicaid providers, who say
they need more guidance from CMS.

Some 2,000 Medicaid providers clogged the agency’s phone lines
earlier this month with complaints about a provision in the Deficit
Reduction Act that requires providers doing more than $5 million in
annual Medicaid business to establish written policies educating
their employees about the federal False Claims Act and its
whistleblower protections. The policies must include specific
procedures the provider has put in place to detect and prevent
fraud and abuse, and also must inform employees that a
whistleblower has protection against his employer.

According to Claudia Simonson, senior policy analyst, division
of field operations, for the Medicaid Program Integrity Group, the
phone lines maxed out at 2,046 during a Jan. 11 briefing about the
provision given by Robb Miller, the group’s acting director. While
Simonson did not know how many HME providers called in, she said
some callers had to be turned away because the phone system
couldn’t accommodate them.

“The provision says the policies must address both federal and
state false claims acts,” said Jeffrey Baird, a health care
attorney with Amarillo, Texas-based Brown & Fortunato.

And therein lies the rub. Providers charge that most states have
not yet finalized their mandated amendments to state whistleblower
plans. Those amendments are not due until March 31. How, then,
providers asked, are they to establish policies that adhere to both
state and federal regulations?

Miller sidestepped that question, saying more guidance would be
issued, but he gave no timetable.

Until then, Simonson said, “we’re advising [providers] to seek
their own counsel.”

Both Baird, who noted that the provision is “buried deep inside
the DRA,” and attorney Neil Caesar of the Health Law Center in
Greenville, S.C., are concerned that many HME providers might not
know of the new provision.

“My guess is that most of the providers out there are unaware of
this,” said Caesar, continuing that HME companies should be aware
“there’s going to be another entity looking over their shoulder and
holding them to standards of accountability.” A provider could be
compliant on the national level and noncompliant on the state
level, he pointed out.

He said states have some incentive for paying attention to
statutes covering fraud and abuse and any violations of those
statutes. “Pursuing this usually brings in fines and penalties that
can improve the states’ bottom line,” said Caesar, adding that it
is not uncommon for states to reap 13 to 17 times the amount it
costs them to pursue such issues.

Robbie Roberts, compliance officer at Boise, Idaho-based HME
provider Norco, said his company already has written policies in
place addressing the issue and has updated its company handbook to
reflect the changes. In addition, the company has an online
training course focusing on its procedures that “allows us to
update folks and meet the intent of the legislation,” Roberts
said.

John Cassar, CEO of SuperCare in the City of Industry, Calif.,
said he has familiarized himself with the provision, but is
relieved that it focuses on providers doing more than $5 million in
Medicaid, not Medicare.

While at present his company is not impacted, “we’re getting
close [to the $5 million mark],” he said. “Regardless, it means you
have to have a compliance program in your system, no matter
what.”

In the end, Baird said, he expects that the new provision will
help in curtailing health care fraud. “Under the whistleblower
provisions, the DOJ has, in essence, outsourced fraud
investigations to the private sector … As more people learn of
the existence of the whistleblower provisions, then more people
will file, or at least think about filing, qui tam actions.”

Last year, funds recovered through cases originated by
whistleblowers under the qui tam statutes added up to $1.3 billion,
according to the DOJ. The agency recovered a total of $3.1 billion
in fraudulent claims, a record, and of that, about 70 percent was
related to health care fraud.