Identification and Prevention of Fraud, Waste and Abuse Policy & Procedure

Responsible Parties

• Facility Administrators
• Director of Nursing
• All Staff
• Attending Physician
• Staff Development
• Vendors

Policy Statement
Colonial Health and Rehab Center of Plainfield, LLC (“Facility”) is committed to identifying and preventing health care fraud and abuse and complying with applicable state and federal laws, including the Federal Civil False Claims Act and other federal and state laws which are designed to prevent fraud and abuse and provide whistleblower protections for those reporting those issues.

This policy, as well as all policies adopted by this Facility, is designed to assist the Facility in detecting and preventing fraud, waste and abuse and to inform employees, contractors and agents about applicable laws, how these laws apply to their jobs and avenues for reporting concerns.

Definitions
Communications – includes, but is not limited to, information provided in medical records, billing information provided to payers, residents or families, information provided to governmental agencies and other communications both internal and external.

Procedure
Action Steps
A. Standards of Conduct

1. Employees and contractors are expected to use their best efforts to meet the requirements of their positions with the Facility. This means performing duties set forth in the employee’s or contractor’s job description or contract in accordance with Facility policies.
2. Meeting the requirements of a position includes knowing and complying with applicable federal and state laws and professional standards of conduct which may apply to that position. If an employee or contractor is uncertain as to what course may be right in a given situation, the Facility administrator should be consulted for assistance.
3. Employees are expected to attend Facility in-services and other education programs regarding their job responsibilities and duties. If an employee is provided with written instructions or directions for performing his/her duties or responsibilities, the employee is responsible for following those directions. These directions may include, but are not limited to, billing instructions furnished by governmental or third party payers.
4. All communications by employees and contractors acting on behalf of the Facility will be truthful.
5. Failure to comply with applicable laws and professional standards may have a detrimental effect on an employee’s evaluation; result in failure to receive a salary increase and result in other disciplinary action, up to and including termination of employment.
6. Furthermore, all employees and contractors are obligated as part of their job duties to report suspected noncompliance by others with applicable state or federal laws, professional standards or other noncompliance. Failure to do so will result in disciplinary action up to and including termination of employment or of the contractual relationship.

B. Quality of Care

1. The Facility is committed to providing quality care for residents in substantial compliance with federal and state laws governing nursing homes and care and services provided to residents.
2. The Quality Assurance Committee established for the Facility pursuant to the requirements of 42 C.F.R. § 483.75(o) is the primary mechanism by which the Facility monitors the quality of care provided to residents.
3. The Quality Assurance Committee and its activities comprise part of the Facility’s policies to prevent fraud, waste and abuse.

C. Maintenance of Medical Records
The maintenance of complete and accurate medical records is important for many reasons. Medical records provide the means of communicating information regarding a resident’s condition from one caregiver to another. Medical records also provide the basis on which the performance of the Facility with respect to its patient care obligations is judged by regulatory agencies. The medical record is also the basis for billing for services and the proof that services for which bills were rendered were actually provided. The Facility expects, as a minimum, the following with respect the maintenance of medical records.

1. All information included in the medical record must be true and accurate to the best of the knowledge of the person entering the information into the medical record.
2. All information included in the medical record must be recorded in legible, complete and up-to-date notes or entries, in a timely manner, i.e., promptly upon completion of the service or observation, and entered in accordance with the professional standards of the discipline of the person making the entry.
3. Where the entry involves providing a service to a resident, the entry must accurately and fully describe the service rendered. Failure to do so may not only provide incomplete infor¬mation for purposes of rendering care, but may also fail to support bills rendered by the Facility.
4. The entry should support the fact that the services rendered were medically necessary for the health of the recipient of the service. It is the expectation of the Facility that physicians and other care¬givers will order and render only services which are medically necessary.

D. Billing Practices
The Facility’s policy is to submit timely and accurate bills for ser¬vices which it renders. It is also the Facility’s policy to render bills in accordance with the billing requirements of federal or state agencies, or private payors which pay for the Facility’s services. In order to fulfill these objectives, the Facility has established the following as standards for billing. These standards are sup-plemented by the billing instructions provided by federal or state agencies, or private payors.

1. It is the Facility’s policy that it will bill only for services actually rendered to residents. Billing for services not actually rendered, i.e., submitting a claim that represents that the Facility provided a service, all or part of which was not performed, is illegal and is prohibited by the Facility.
2. It is the Facility’s practice to bill payors only for services for which the payor has said that it will pay, (this does not include claims on which the Facility anticipates a denial but must submit for valid reasons).
3. Where billing requires that services be designated by a “code” or DRG, it is the Facility’s policy to provide accurate coding of all services which it has provided to a resident. The practice sometimes referred to as “upcoding,” i.e. using a billing code that provides a higher payment rate than the billing code that actually reflects the service furnished to the patient, is pro¬hibited. All employees responsible for assigning codes in billing matters must utilize the code which most accurately reflects the services provided.
4. It is the policy of the Facility to avoid duplicate billing for the same services. Duplicate billing may occur when more than one claim for the same service is submitted or a bill is submitted to more than one primary payor at the same time. Employees should take appropriate steps to avoid duplicate billing.
5. Employees with billing responsibilities are required to fully familiarize themselves with the billing requirements of federal and state programs and of private payors. If an employee is unsure about the correctness of the billing practice, it is the Facility’s expectation that the employee will seek assistance from a supervisor about the appropriate billing practice. Where there is doubt as to the meeting of a particular requirement, the billing manager or supervisor should request advice from the govern¬mental agency or private payor to whom the bill will be sub¬mitted. The managers should document and retain a record of the request for information and any response.
6. The Facility will not accept payment for any item or service paid for by Medicare, Medicaid, or any other government program or private insurance program, in excess of the amount allowed under such programs in accordance with applicable law.

E. Conflicts of Interest and Remuneration

1. Conflict of Interest. The Facility expects that decisions made by Facility employees regarding the purchase or lease of services, facilities or goods will be made with the best interest of the Facility in mind. A conflict of interest may exist where an employee, or a member of the employee’s family, may benefit directly from any sale or lease of services, facilities or supplies to the Facility. Employees are expected to inform the Facility of such situations.
2. Gifts, gratuities and entertainment. The issues to consider when purchasing or leasing services, facilities or supplies are the quality and cost to the Facility or its patients. The personal interests of the Facility employee arranging for the purchase or lease of services, facilities or supplies should not be a consideration. Therefore, acceptance of gifts, entertainment, money, or other favors from any outside individual or concern that does, or is seeking to do, business with, the Facility, or competes with the Facility, is prohibited. Employees are expected to politely decline the acceptance of any such gifts, entertainment, money or other favors.
3. Illegal remuneration. Employees are expected not to solicit, receive, offer or pay any remuneration, or anything of value, in connection with referral of residents to or from our facility or in connection with purchasing, leasing, or ordering any good, facility, service or item.

F. Reporting of Potentially Inappropriate or Illegal Conduct

1. No Retaliation Policy. The Facility will not retaliate against any person, whether that person is an employee, contractor or consultant, or other person, who: (a) seeks information regarding compliance issues, suggests changes or improvements to the compliance process; or (b) provides information, in good faith, concerning possible or suspected violations of federal or state laws, inappropriate billing or cost reporting practices, or other improper conduct.
2. Reporting potentially inappropriate or illegal conduct – policy on confidentiality. The Facility encourages employees, consultants or contractors to report conduct which they believe may violate federal or state law, proper billing or cost reporting practices, or is otherwise inappropriate. The Facility will endeavor to keep the identity of the person making the report confidential.A person wishing to make a report in writing, whether anonymous or otherwise, may do so by addressing a communication to the Administrator at the Facility’s address or by telephone at 860-230-8476.”Matters may be reported on a confidential basis through use of Administrator dropbox. Employees should understand, however, that while the Facility will follow up on anonymous reports to the extent it can given the information provided, the Facility will not be in a position to seek additional information if it does not know who made the report in the first instance.
3. Responsibility of Managers and Supervisors. Employees, consultants or contractors may bring questions and/or reports to managers or supervisors, not only to the administrator. If a manager or supervisor should receive a request for information or clarification, the manager or supervisor should, if he or she is able to respond, provide such response in a prompt manner. It is the responsibility of managers and supervisors, if they do not know the answer to a question, to obtain that answer and to provide it to the employee, consultant or contractor who made the inquiry.If a report of a suspected violation of federal or state law, billing or cost reporting practices, or other possible wrongdoing or inappropriate conduct is made to a manager or supervisor, the manager or supervisor should contact the Administrator who will assist in handling the matter.

G. Enforcement

1. Facility personnel at any level who fail to comply with the Facility’s standards of conduct, policies and procedures, or applicable federal and state laws, or who otherwise engage in wrongdoing, are subject to disciplinary action. Disciplinary action will be taken at the discretion of the Facility in accordance with its personnel policies. The Facility, in its sole discretion, will determine which of the above methods of discipline is appropriate in each instance.
2. Consultants or contractors who fail to comply with the Facility’s standards of conduct, federal or state laws, billing or cost reporting practices or professional standards of conduct may have their contracts terminated.
3. Convicted and Excluded Persons. The Facility will also require applicants to disclose any criminal conviction as defined by federal law or exclusion from the Medicare or Medicaid programs. The Facility will also consult the List of Excluded Individuals and Entities (“LEIE”) maintained by the United States Department of Health and Human Services, Office of Inspector General to determine whether a person has been excluded from participation in the Medicare and Medicaid programs. The LEIE is available on the Internet at: https://oig.hhs.gov/exclusions/index.asp.The Facility will not employ individuals who have disclosed criminal convictions related to health care or who are listed as debarred, excluded or otherwise ineligible for participation in federal or state health care programs. Prospective employees who have been officially reinstated into the Medicare and Medicaid programs by the OIG may be considered for employment upon proof of such reinstatement. In addition, the Facility will not contract with companies that have recently been convicted of criminal offenses relating to health care, or have been listed by a federal agency as debarred, excluded, or otherwise been deemed ineligible for participation in federal or state health care programs. Debarred contractors are contained in a database maintained at www.sam.gov.With respect to current employees and contractors, the Facility may relieve current employees and contractors from responsibility for any involvement in any federal or state health care program if criminal charges or proposed debarment or exclusion proceedings are brought against a current employee or contractor. If the matter results in conviction, debarment or exclusion, the Facility will terminate the employment or contractual arrangement with the individual or Facility.

H. Corrective Action

1. If the Facility receives a report or reasonable indication of suspected noncompliance, the Administrator or his/her designee will initiate steps to investigate the conduct in question to determine whether there has been a material violation of applicable law or the policies and procedures of the Facility. If so, steps will be taken to correct the problem including, where appropriate, reporting to applicable government agencies or third party payors.
2. In addition, there may be disciplinary action taken against persons responsible for the violation.
   Pursuant to 42 U.S.C. § 1320a-7(i), a person is considered to have been “convicted” of a criminal offense when:  (1) a judgment of conviction has been entered against the individual by any court, even if there is an appeal pending, or the judgment of conviction or other record has been expunged, (2) a finding of guilt has been entered against the individual by any court, (3) a plea of guilty or nolo contendere has been accepted by any court or (4) the individual has entered into a first offender, deferred adjudication or other program where a judgment of conviction has been withheld.

Federal and State Laws Governing Fraud, Waste, Abuse and Whistleblower Protections

1. Federal False Claims Act
The Civil False Claims Act (31 U.S.C. §3729 et seq.) is a statute that imposes civil liability on any person who:

• knowingly presents, or causes to be presented, a false or fraudulent claim, record or statement for payment or approval,
• conspires to defraud the government by getting a false or fraudulent claim allowed or paid,
• uses a false record or statement to avoid or decrease an obligation to pay the Government, and
• other fraudulent acts enumerated in the statute.

The term “knowingly” as defined in the Civil False Claims Act (“FCA”) includes a person who has actual knowledge of the information, acts in deliberate ignorance of the truth or falsity of the information, or acts in reckless disregard of the truth or falsity of the information. No proof of specific intent to defraud is required.

The term “claim” includes any request or demand for money or property if the United States Government provides any portion of the money requested or demanded.

Potential civil liability under the FCA currently includes penalties of between five thousand five hundred and eleven thousand per claim, treble damages, and the costs of any civil action brought to recovery such penalties or damages.

The Attorney General of the United States is required to diligently investigate violations of the FCA, and may bring a civil action against a person. Before filing suit the Attorney General may issue an investigative demand requiring production of documents and written answers and oral testimony.

The FCA also provides for Actions by Private Persons (qui tam lawsuits) who can bring a civil action in the name of the government for a violation of the Act. Generally, the action may not be brought more than six years after the violation, but in no event more than ten. When the action is filed it remains under seal for at least sixty days. The United States Government may choose to intervene in the lawsuit and assume primary responsibility for prosecuting, dismissing or settling the action. If the Government chooses not to intervene, the private party who initiated the lawsuit has the right to conduct the action.

In the event the government proceeds with the lawsuit, the qui tam plaintiff may receive fifteen to twenty-five per cent of the proceeds of the action or settlement. If the qui tam plaintiff proceeds with the action without the government, the plaintiff may receive twenty-five to thirty per cent of the recovery. In either case, the plaintiff may also receive an amount for reasonable expenses plus reasonable attorneys’ fees and costs.

If the civil action is frivolous, clearly vexatious, or brought primarily for harassment, the plaintiff may have to pay the defendant its fees and costs. If the plaintiff planned or initiated the violation, the share of proceeds may be reduced and, if found guilty of a crime associated with the violation, no share will be awarded the plaintiff.

Whistleblower Protection. The Civil False Claims Act also provides for protection for employees from retaliation. An employee who is discharged, demoted, suspended, threatened, harassed, or discriminated against in terms and conditions of employment because of lawful acts conducted in furtherance of an action under the FCA may bring an action in Federal District Court seeking reinstatement, two times the amount of back pay plus interest, and other enumerated costs, damages, and fees.

2. Federal Program Fraud Civil Remedies Act of 1986
The Program Fraud Civil Remedies Act of 1986 (“Administrative Remedies for False Claims and Statements” at 38 U.S.C. §3801 et seq.) is a statute that establishes an administrative remedy against any person who presents or causes to be presented a claim or written statement that the person knows or has reason to know is false, fictitious, or fraudulent due to an assertion or omission to certain federal agencies (including the Department of Health and Human Services).

The term “knows or has reason to know” is defined in the Act as a person who has actual knowledge of the information, acts in deliberate ignorance of the truth or falsity of the information, or acts in reckless disregard of the truth or falsity of the information. No proof of specific intent to defraud is required.

The term “claim” includes any request or demand for property or money, e.g., grants, loans, insurance or benefits, when the United States Government provides or will reimburse any portion of the money.

The authority, i.e., federal department, may investigate and with the Attorney General’s approval commence proceedings if the claim is less than one hundred and fifty thousand dollars. A hearing must begin within six years from the submission of the claim. The Act allows for civil monetary sanctions to be imposed in administrative hearings, including penalties of five thousand five hundred dollars per claim and an assessment, in lieu of damages, of not more than twice the amount of the original claim.

Connecticut False Claims, Fraud and Whistleblower Laws
In addition to the Federal laws described above, there are several state laws designed to prevent and detect fraud and abuse. Employees and contractors of the Facility are expected to act in accordance with these laws which are summarized below. Violations of these laws carry the possibility of criminal or monetary penalties as well as exclusion from participation in the Medicaid program.

A. Criminal Statutes
1. Conn. Gen. Stat. § 53a-290 et seq. Vendor Fraud. The facility, employees or contractors will be considered to have committed vendor fraud, when, with intent to defraud, the Facility or the individual:

• Presents for payment any claim for goods or services that is false;
• Accepts payment for goods or services in excess of the amount actually due or the amount allowed by law for those goods or services;
• Attempts to provide services or sell goods to a resident knowing the resident does not need the goods or services;
• Sells goods or services to a resident without prior authorization from the Department of Social Services when a prior authorization is required; or
• Accepts from any person or source additional compensation in excess of the amount allowed under the law.

2. Conn. Gen. Stat. §52-440 et. seq. Health Insurance Fraud. A person is guilty of health insurance fraud when, with the intent to defraud, he/she;

• Makes any written or oral statement as part of (or in support of) an application for health insurance or claim for payment knowing the statement is false, incomplete, deceptive or misleading or omitting material information whether for himself, a family member or third party;
• Assists, solicits or conspires with another to prepare or present any written or oral statement to any insurer or agent in connection with an application or claim for health care benefits knowing that the statement contains false, deceptive or misleading information. Misleading information includes falsely representing that goods or services were medically necessary or that they met professionally recognized standards.
  The term “insurer” includes any private or governmental agency that provides medical benefits to Medicare or Medicaid recipients. Health insurance fraud is punishable by imprisonment and/or fines.

3. Conn. Gen. Stat. § 53a-118 et seq. Larceny. Defrauding the Government. A person is guilty of larceny against the government when he/she:

• Authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency knowing it is false; or
• Knowingly accepts the benefits from a claim he knows is false.

4. Conn. Gen. Stat. §53a-155. Tampering with or Fabricating Physical Evidence: Class D felony. A person is guilty of tampering with or fabricating physical evidence if he alters, destroys, conceals or removes any record or document or makes, presents or uses any record or document knowing it is false for the purpose of misleading a public servant.

5. Conn. Gen. Stat. §53a-157b. False Statement in the Second Degree. A person is guilty of false statement in the second degree when he intentionally makes a false written statement under oath, or on a form which states that false statements made therein are punishable, knowing them to be untrue and with the intent to mislead a public servant.

B. Fraud Statutes and Regulations

1. Conn. Gen. Stat. §4-275 et seq. The Connecticut False Claims Act. This Act prohibits companies and individuals from knowingly presenting, or causing to be presented, a false or fraudulent claim to the State for payment or using false records or statements to obtain payment. Individuals who report such violations may receive a percentage of any recovery. False or fraudulent reporting under this Act can result in significant fines, treble damages and the costs of investigating and prosecuting the violation. The Act also provides protection, including reinstatement, double back pay, and other costs if an employer retaliates against any employee for making a report in good faith under this Act.

2. Conn. Gen. Stat. §17b-25a. Toll Free Vendor Fraud Telephone Line. This statute requires the Department of Social Services to provide toll-free telephone access for a person to report vendor fraud.

3. Conn. Gen. Stat. §17b-99. Vendor Fraud. This statute sets forth penalties for vendor fraud and provides for the issuance of regulations and audits as follows:

• Any vendor found guilty of vendor fraud under §53a-290 et seq. shall be subject to forfeiture or suspension of any license or franchise from the state after hearing.
• No vendor is eligible for reimbursement for any goods provided or services performed by a person convicted of a crime involving fraud in federal or state programs;
• Vendors must notify the Department within 30 days after the date of employment or conviction of the identify and extent of services performed by any person convicted of a crime involving fraud in Medicare, Medicaid or other federal health care program
• Prior to acceptance of a provider agreement or at any time upon request of the Department, a vendor must furnish the Department with the identity of any person convicted of crime involving fraud in these programs who has an ownership or control interest in the vendor or who is an agent or managing employee.
• The Department shall distribute to all vendors a copy of rules, regulations, standards and laws governing the program.
• The Department shall conduct any audit in accordance with the statute.

4. Conn. Gen. Stat. §17b-102. Regs. Conn. State Agencies 17b-102-01 et. seq. Financial Incentive for Reporting Vendor Fraud. Under these statutes and regulations, the Department of Social Services may offer up to 15% of any amounts recovered by the state as a result of a person’s report of vendor fraud.

5. Reg. Conn. State Agencies §17-83k-1 et seq. (Administrative Sanctions). These regulations set forth administrative sanctions against vendors who violate state or federal laws, rules or regulations governing the programs in which they participate. Sanctions include suspension, limitation and termination from participation in state programs. Examples of violations that may lead to such sanctions include:

• Failure to comply with any provision of a contract or agreement in effect between the vendor and the Department;
• Furnishing or ordering services in excess of a recipient’s needs or that fail to meet professionally recognized standards;
• Making a false statement or misrepresentation of fact for purpose of claiming or determining payment;
• Accepting compensation in excess of the amount authorized by law for goods or services;
• Providing unnecessary services.

C. Whistleblower Protections

The Facility encourages persons who believe that a violation of law or Facility policy has occurred to communicate their concerns to Facility management. Employees and contractors who become aware of any violation of these laws are required as part of their job responsibilities to bring such violations to the attention of Facility management.

It is the right of all persons under Connecticut law to be protected against retaliation for reporting violations of these laws. The Facility will not discriminate or retaliate in any manner against employees or contractors who disclose information about suspected violations. The following laws prohibit discrimination and/or retaliation:

1. Conn. Gen. Stat. §31-51m. Protection of Employee Who Discloses Employer’s Illegal Activities or Unethical Practices. Civil Action. No employer may discharge, discipline or otherwise penalize any employee because that person reports a violation or suspected violation of any state or federal law or regulation or because the employee is requested by a public body to participate in an investigation, hearing or inquiry.

2. Conn. Gen. Stat. §4-61dd. Whistleblowing. Large state contractors. No employee or officer of a large state contractor may take or threaten to take any personnel action against an employee in retaliation for disclosing information of any matter involving corruption or violation of state or federal laws or regulations.

3. Conn. Gen. Stat. §31-51q. Liability of Employer for Discipline or Discharge of Employee on Account of Employee’s Exercise of Certain Constitutional Rights. Any employer who disciplines or discharges and employee for exercising his/her constitutional rights shall be liable to the employee for damages, including punitive damages, and for reasonable attorney fees as part of the costs of any action for damages. If the action for damages is brought without substantial justification, the court may award costs and attorney’s fees to the employer.

4. Regs. Conn. State Agencies §4-61dd et seq. Rules of Practice for Contested Case Proceedings under the Whistleblower Protection Act. These regulations set forth the rules of practice for conducting a contested case proceeding under the Whistleblower Protection Act.