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Catholic Health Services of Long Island Whistleblower Protection Policy

Department: Compliance Assurance
Policy: Whistleblower Protection Policy
Approved by: CHS Board of Directors
Date Approved: May 23, 2005
Date Revised: September 24, 2007
Date Effective: September 24, 2007
Distribution:

CHS Compliance Hotline: (866) 272-0004

I.Background:
Catholic Health Services of Long Island (CHS) and its System Affiliates (as hereafter defined) adopts this Whistleblower Protection Policy to support and implement our stated values of integrity in all business dealings and justice for all who are encountered, to enhance our commitment to compliance with all laws and regulations applicable to our organization, including false claims laws and regulations, and to promote ethical and lawful corporate conduct. CHS requires that its System Affiliates comply with this Whistleblower Protection Policy as part of our continuing effort to encourage openness and constructive criticism, and to promote integrity and honesty throughout our organization.

This policy provides the mechanisms whereby employees, contractors, agents, and others can report a potential violation in good faith to those who can assist them, confidentially and without fear of retaliation. In addition, CHS and its System Affiliates have instituted various policies and procedures, which are described in their Compliance Manuals, Compliance Assurance Handbooks and Employee Handbooks, to ensure compliance with all applicable laws and regulations and to assist in preventing fraud, waste and abuse in government healthcare programs.

The reporting system described in this Whistleblower Protection Policy summarizes and is intended to supplement and amplify the reporting responsibilities set out in the CHS Compliance Policy Statement.

II.Definitions:
Corrective Action: The action taken or proposed to be taken by CHS or one of its System Affiliates in response to a potential violation. Corrective action may include refunding of over-payments, development of new policies or procedures, amendment of existing policies or procedures, employee discipline, physician discipline, compliance training, and voluntary disclosure of the violation to government authorities or others.

False Claims Act:
A law that prohibits a person or entity, such as a healthcare provider, from knowingly presenting or causing to be presented a false or fraudulent claim for payment or approval to Federal, New York State or local governments, and from knowingly making, using or causing to be made a false record or statement to get a false or fraudulent claim paid or approved by Federal, New York State or local governments. (See section V for a detailed description of Federal and New York State false claim, whistleblower protection and other relevant laws, regulations and remedies.)

Good Faith: A belief in the truth of an alleged potential violation that is based upon facts. Any allegation made with reckless disregard or deliberate ignorance of factual matters is not made in good faith.

Knowing and Knowingly:
The terms knowing and knowingly mean that a person, with respect to information (1) has actual knowledge of the information; (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, and no proof of specific intent to defraud is required.

Potential Violation: Reported conduct that, if true, may (i) result in a determination that the System Affiliate has received an overpayment from a third party payor or payors; or (ii) constitute a violation of the CHS Compliance Policy Statement, the System Affiliate Compliance Plan, or applicable laws, regulations or rules.

Material Potential Violation: A potential violation is a material potential violation if (i) over­payments, in the aggregate, total more than $100,000, or (ii) in the opinion of the CHS Compliance Officer or the System Affiliate Compliance Officer, the reported conduct would constitute a significant violation of the CHS Compliance Policy Statement, the System Affiliate Compliance Plan, or applicable laws, regulations or rules.

Retaliatory Actions: Unfavorable employment actions taken as a payback or to penalize those who report a potential violation in good faith or against those who participate in the investigation of or any proceeding related to such reports. Retaliatory actions may include discharge, suspension, demotion, penalization, harassment, discrimination or other adverse employment actions in the terms and conditions of employment of the reporter or participant.

System Affiliate: The term System Affiliate includes Good Samaritan Hospital Medical Center, Mercy Medical Center, St. Catherine of Siena Medical Center, St. Francis Hospital, St. Charles Hospital, St. Catherine of Siena Nursing Home, Our Lady of Consolation Nursing & Rehabilitative Care Center, Maryhaven Center of Hope, Catholic Home Care, CHS Home Support Services, Good Shepherd Hospice, and CHS Services, Inc.

The Program Fraud Civil Remedies Act: This Federal law is similar to the Federal False Claims Act and creates a penalty for submitting a false claim of up to $5,000 per claim and twice the amount of the claim. This law is violated when a false claim is submitted, not when it is paid. Under this statute, investigations and recoveries are handled by Federal agencies, not the courts. (See section V for a more detailed description.)

III.Policy:
CHS prohibits retaliation against an individual or group for reporting a good-faith concern related to a violation or potential violation of any CHS or System Affiliate policy or procedure or any applicable law, rule, or regulation.

  • CHS and its System Affiliates will not retaliate or permit retaliation against employees, contractor, agents and others for:
  • Filing a complaint or reporting a concern to CHS, one of its System Affiliates (in keeping with the reporting procedures outlined below) or to any regulatory agency or legal authority;
  • Testifying, assisting, or participating in an investigation, compliance review, proceeding or hearing;
  • Opposing, in good faith, any act or practice unlawful under Federal, state, or local law, regulation, or policy, provided that the manner of opposition is reasonable and does not itself violate law; or
  • Exercising any right under or participating in any process established by Federal, state, or local law, regulations, or policy.

CHS and its System Affiliates strictly prohibit retaliation, discrimination, harassment or any other adverse action by management or any other person or group, either directly or indirectly, against any individual or group who reports a potential violation in good faith under the reporting system described both in this policy and in the CHS Compliance Policy Statement. Anyone believing that he or she or an employee, contractor, agent or other person has been subjected to retaliation for reporting a potential violation in good faith should report such conduct to anyone designated to receive reports under this Whistleblower Protection Policy.

CHS and its System Affiliates also strictly prohibit retaliation, discrimination, harassment or other adverse action against any person who participates, in any way, in the investigation of a potential violation.

Unless a judicial or other legal process compels otherwise, the identity of any person reporting a potential violation in good faith or a retaliatory action against a reporter or a participant in an investigation shall remain confidential, and shall only be disclosed to those individuals with a need to know as determined by the reporting system described below. In addition, efforts to determine the identity of an anonymous reporter may result in disciplinary action against those seeking disclosure of the information.

IV.The Reporting System:
It is the policy of CHS and its System Affiliates to encourage prompt reporting, at the earliest reasonable opportunity, of any activity or conduct in violation of any CHS and/or System Affiliate compliance policy or any Federal, state or local laws or regulations pertaining to compliance related matters. Examples include, but are not limited to:

  • financial wrongdoing, including fraud or suspected fraud;
  • internal corporate financial concerns, such as deliberate omissions or misstatements in preparing, evaluating, reviewing or auditing of financial statements or violation of generally accepted accounting principles;
  • Federal and state healthcare programs or other third-party payor concerns, such as inaccuracies in Medicare cost reports or questionable billing or coding activities;
  • mistreatment, abuse, or neglect of a patient or client;
  • falsification of medical records;
  • dangers to health and safety, including environmental and worker safety issues;
  • criminal conduct of any kind related to patient care;
  • favoritism or bias in contractual matters;
  • any form of retaliation against employees, contractors, agents or others, reporting a potential violation in good faith;
  • a cover-up involving any of the above; and
  • any other good faith concern.

1. Reports of potential violations may be oral or written and may be delivered either (a) personally; (b) through an anonymous reporting system set up by CHS or a System Affiliate, such as compliance assurance helplines; (c) by anonymous letter to the System Affiliate Compliance Officer or CHS Compliance Officer; or (d) by any other practicable method. When a report is made personally, it is suggested that the reporter discuss his or her concern with an immediate supervisor. However, reports may be directed to administrative or managerial personnel, the CHS Compliance Officer, the System Affiliate Compliance Officer, or to any person or body in a position to address the reporter’s particular concern.

Non-compliance related matters pertaining to human resource and HIPAA issues should be reported to the appropriate administrative or managerial personnel. If non-compliance related matters are reported to the CHS or System Affiliate Compliance Officer, he/she shall direct the matter to the appropriate administrative or managerial personnel.

2. If the identity of the reporter is known, the reporter should be confidentially given the option of receiving a written acknowledgment, which shall contain the assurance of a timely and confidential investigation carried out in accordance with applicable policies and procedures. In order to maintain the anonymity of the reporter, no such acknowledgment shall be sent without his or her request.

3. Any report of a potential violation received by any manager, department head, or other supervisory personnel is to be promptly reported to the CHS Compliance Officer (if the report involves an employee of CHS or CHS Services, Inc.) or the System Affiliate Compliance Officer (if the report involves an employee of a System Affiliate). The Compliance Officer shall take every report seriously and consider it objectively, thoroughly and fairly, bearing in mind that the reporter may have found it difficult to raise the issue. The Compliance Officer will enter the report in a log, and the contents of the log, along with the results of any investigation and any corrective action will be reported quarterly to the Entity Board of Trustees Compliance and Audit Committee and the CHS Compliance Officer, who will submit the quarterly report to the CHS Board of Directors Compliance and Audit Committee.

4. Any report received by the System Affiliate Compliance Officer shall be reported to the CHS Compliance Officer, who will assist and advise in any investigation. The System Affiliate Compliance Officer shall contact the CHS Compliance Officer prior to contacting System Compliance Counsel.

5. All reports of potential violations require the Compliance Officer to commence an investigation as soon as possible, but in no event later than thirty days from the date the Compliance Officer receives the report. If the report addresses improper billing, the System Affiliate Chief Executive Officer or Executive Director shall determine whether billing should be temporarily suspended.

6. Investigations shall be conducted in an objective and thorough manner and will proceed as set forth in the CHS Compliance Policy Statement, provided however, that where there is any risk or any perception of unfairness or partiality in the internal investigatory process, the investigation shall be turned over to outside counsel. All information related to the investigation shall be held in strict confidence and the System Affiliate Compliance Officer, the members of the System Affiliate Management Compliance Committee, the System Affiliate Board of Trustees Compliance and Audit Committee, the CHS Compliance Officer, and the members of the CHS Compliance and Audit Committee shall sign confidentiality statements in the form shown in the CHS Compliance Policy Statement. Every effort will be made to preserve the attorney-client and work product privileges, in connection with any investigation conducted under the direction of the System Compliance Counsel. Detailed cautions related to preserving these privileges can be found in the CHS Compliance Policy Statement.

7. If the potential violation concerns a System Affiliate, upon completion of an investigation the System Affiliate Compliance Officer shall prepare a confidential report containing (a) a clear statement of the issue and conclusion; (b) a summary of all information used to arrive at the conclusion; and (c) a recommendation for corrective action. The report shall be submitted to the System Affiliate’s Chief Executive Officer, the CHS Compliance Officer and the System Affiliate Board of Trustees Compliance and Audit Committee. If the report does not concern a material potential violation, the System Affiliate Board of Trustees shall review and act upon the recommended corrective action. Alternately, the System Affiliate Board of Trustees may delegate its approval authority to the System Affiliate Chief Executive Officer, who may approve the corrective action with the advice and counsel of the System Affiliate Board of Trustees Compliance and Audit Committee.

8. If the potential violation concerns CHS or CHS Services Inc., upon completion of an investigation, the CHS Compliance Officer shall prepare a confidential report containing (i) a clear statement of the issue and conclusion; (ii) a summary of all information used to arrive at the conclusion; and (iii) a recommendation for corrective action. If the report does not concern a material potential violation, the report shall be submitted to the CHS Compliance and Audit Committee, who shall review and act upon the recommended corrective action.

9. Whether involving CHS or a System Affiliate, if an investigation indicates that a material potential violation has occurred, the recommended corrective action shall be reviewed by the System Affiliate Board of Trustees Compliance and Audit Committee and the CHS Compliance and Audit Committee, and then shall be sent to the CHS Board of Directors for final approval at its next regularly scheduled meeting.

V.Federal and New York State False Claim Laws, Regulations and Remedies:
1. Federal and New York State False Claims Acts:
Federal and New York State False Claims Acts provide, in pertinent part, that any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the Federal, New York State and local governments or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Federal, New York State or local governments; (3) conspires to defraud the Federal, New York State or local governments by getting a false or fraudulent claim paid or approved by the Federal, New York State or local governments; or (4) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Federal, New York State or local governments, is liable to the Federal, New York State or local governments for a civil penalty of:

  • Federal Government: not less than $5,500 and not more than $11,000, plus three times the amount of damages which the Federal government sustained because of the act of that person.
  • New York State Government: not less than $6,000 and not more than $12,000, plus three times the amount of damages which the New York State government sustained because of the act of that person. In addition, the individual who filed the false claim may have to pay the government’s legal fees.
  • Local Government: three times the amount of damages which the local government sustained because of the act of that person.

While both the Federal and New York State False Claims Acts impose liability only when the claimant acts knowingly, they do not require that the person submitting the claim have actual knowledge that the claim is false. A person who acts in reckless disregard or in deliberate ignorance of the truth or falsity of the information also can be found liable under these acts. An example may be a physician who submits a bill to a government healthcare program for medical services he/she knows have not provided.

The False Claims Act also imposes liability on an individual who knowingly submits a false record in order to obtain payment from the government. An example of this includes a government contractor who submits records that he knows (or should know) are false and that indicate compliance with certain contractual or regulatory requirements.

The third area of liability includes those instances in which someone obtains money from the government to which he may not be entitled, and then uses false statements or records in order to retain the money. An example of this so-called “reverse false claim” includes a hospital that obtains interim payments from Medicare throughout the year, and then knowingly files a false cost report at the end of the year in order to avoid making a refund to the Medicare program.

In addition to its substantive provisions, the Federal and New York State False Claims Acts provide that private parties may bring an action on behalf of the Federal, New York State or local governments. These private parties, known as “qui tam relators,” may share in a percentage of the proceeds from a False Claims Act action or settlement.

The Federal and New York State False Claims Act provide, with some exceptions, that when the government has intervened in the lawsuit, a qui tam relator shall receive at least 15 percent but not more than 25 percent of the proceeds of the False Claims Act action depending upon the extent to which the relator substantially contributed to the prosecution of the action. When the government does not intervene, the relator shall receive an amount that the court decides is reasonable which shall be not less than 25 percent or more than 30 percent of such amount.

Both the Federal and New York State False Claims Acts provide protection to qui tam relators who are discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of their employment as a result of their furtherance of an action under the False Claims Act. Remedies include reinstatement with comparable seniority as the qui tam relator would have had but for the discrimination, two times the amount of any back pay, interest on any back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.

2. The Program Fraud Civil Remedies Act:
This Federal law makes it illegal for a person or entity to make, present or submit (or cause to be made, presented or submitted) a claim (i.e., a request, demand or submission) for property, services, or money to an authority (i.e., an executive department of the Federal Government such as the U.S. Department of Health and Human Services, which oversees Medicare and Medicaid programs) when the person or entity knows or has reason to know that the claim: (i) is false, fictitious or fraudulent; or (ii) includes or is supported by any written statement which asserts a material fact which is false, fictitious or fraudulent; or (iii) includes or is supported by any written statement which omits a material fact, is false, fictitious or fraudulent because of the omission and is a statement in which the person or entity has a duty to include such material fact; or (iv) is for the provision of items or services which the person or entity has not provided as claimed.

In addition, it is illegal to make, present or submit (or cause to be made, presented, or submitted) a written statement (i.e., a representation, certification, affirmation, document, record, or accounting or bookkeeping entry made with respect to a claim or to obtain the approval or payment of a claim) if the person or entity knows or has reason to know such statement: (i) asserts a material fact which is false, fictitious or fraudulent or (ii) omits a material fact making the statement false, fictitious or fraudulent because of the omission. Similar to the Federal False Claims Act, The Program Fraud Civil Remedies Act broadly defines the terms knows or has reason to know as (1) having actual knowledge that the claim or statement is false, fictitious, or fraudulent; (2) acting in deliberate ignorance of the truth or falsity of the claim or statement; or (3) acting in reckless disregard of the truth or falsity of the claim or statement. The law specifically provides that a specific intent to defraud is not required in order to prove that the law has been violated. The Program Fraud Civil Remedies Act provides for civil penalties of up to $5,000 for each false claim paid by the government, and, in certain circumstances, an assessment of twice the amount of each claim.

In addition, if a written statement omits a material fact and is false, fictitious or fraudulent because of the omission and is a statement in which the person or entity has a duty to include such material fact and the statement contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, the law provides for a penalty of up to $5,000 to be imposed for each such statement.

3. Other Relevant New York State Laws:
New York’s false claims laws fall into two categories: civil and administrative; and criminal laws. Some apply to recipient false claims and some apply to provider false claims (both of which are described above). While most are specific to healthcare or Medicaid, some of the common law crimes apply to areas of interaction with the government. These are described below:

A. Social Services Laws:
1.§145-b - False Statements:
It is a violation to knowingly obtain or attempt to obtain payment for items or services furnished under any Social Services program, including Medicaid, by use of a false statement, deliberate concealment or other fraudulent scheme or device. The State or the local Social Services district may recover three times the amount incorrectly paid. In addition, the Department of Health may impose a civil penalty of up to $2,000 per violation. If repeat violations occur within five (5) years, a penalty up to $7,500 per violation may be imposed if they involve more serious violations of Medicaid rules, billing for services not rendered or providing excessive services.

2.§145-c - Sanctions:
If any person applies for or receives public assistance, including Medicaid, by intentionally making a false or misleading statement, or intending to do so, the person’s, the person’s family’s needs are not taken into account for six (6) months if a first offense, twelve (12) months if a second (or once if benefits received are over $3,900) and five years for four (4) or more offenses.

3.§145 - Penalties:
Any person, who submits false statements or deliberately conceals material information in order to receive public assistance, including Medicaid, is guilty of a misdemeanor.

4.§ 366-b - Penalties for Fraudulent Practices:
Any person who obtains or attempts to obtain, for himself or others, medical assistance by means of a false statement, concealment of material facts, impersonation or other fraudulent means is guilty of a Class A misdemeanor.

Any person who, with intent to defraud, presents for payment any false or fraudulent claim for furnishing services, knowingly submits false information to obtain greater Medicaid compensation or knowingly submits false information in order to obtain authorization to provide items or services is guilty of a Class A misdemeanor.

B. Penal Laws:

1.Article 155 - Larceny:
The crime of larceny applies to a person who, with intent to deprive another of his property, obtains, takes or withholds the property by means of trick, embezzlement, false pretense, false promise, including a scheme to defraud, or other similar behavior. It has been applied to Medicaid fraud cases.

  • Fourth degree grand larceny involves property valued over $1,000. It is a Class E felony.
  • Third degree grand larceny involves property valued over $3,000. It is a Class D felony.
  • Second degree grand larceny involves property valued over $50,000. It is a Class C felony.
  • First degree grand larceny involves property valued over $1 million. It is a Cass B felony.

2.Article 175 - False Written Statements:
Four crimes in this Article relate to filing false information or claims and have been applied in Medicaid fraud prosecutions:

  • §175.05 - Falsifying business records involves entering false information, omitting material information or altering an enterprise’s business records with the intent to defraud. It is a Class A misdemeanor.
  • § 175.10 - Falsifying business records in the first degree includes the elements of the §175.05 offense and includes the intent to commit another crime or conceal its commission. It is a Class E felony.
  • §175.30 - Offering a false instrument for filing in the second degree involves presenting a written instrument (including a claim for payment) to a public office knowing that it contains false information. It is a Class A misdemeanor.
  • §175.35 - Offering a false instrument for filing in the first degree includes the elements of the second degree offense and must include an intent to defraud the state or a political subdivision. It is a Class E felony.

3.Penal Law Article 176, Insurance Fraud:
Applies to claims for insurance payment, including Medicaid or other health insurance and contains six crimes.

  • Insurance Fraud in the 5th degree involves intentionally filing a health insurance claim knowing that it is false. It is a Class A misdemeanor.
  • Insurance fraud in the 4th degree is filing a false insurance claim for over $1,000. It is a Class E felony.
  • Insurance fraud in the 3rd degree is filing a false insurance claim for over $3,000. It is a Class D felony.
  • Insurance fraud in the 2nd degree is filing a false insurance claim for over $50,000. It is a Class C felony.
  • Insurance fraud in the 1st degree is filing a false insurance claim for over $1 million. It is a Class B felony.
  • Aggravated insurance fraud is committing insurance fraud more than once. It is a Class D felony.

4.Article 177 - Healthcare Fraud:
Applies to claims for health insurance payment, including Medicaid, and contains five crimes:

  • Healthcare fraud in the 5th degree is knowingly filing, with intent to defraud, a claim for payment that intentionally has false information or omissions. It is a Class A misdemeanor.
  • Healthcare fraud in the 4th degree is filing false claims and annually receiving over $3,000 in aggregate. It is a Class E felony.
  • Healthcare fraud in the 3rd degree is filing false claims and annually receiving over $10,000 in the aggregate. It is a Class D felony.
  • Healthcare fraud in the 2nd degree is filing false claims and annually receiving over $50,000 in the aggregate. It is a Class C felony.
  • Healthcare fraud in the 1st degree is filing false claims and annually receiving over $1 million in the aggregate. It is a Class B felony.

C.New York Labor Laws:
1.Section 740:
An employer may not take any retaliatory action against an employee if the employee discloses information about the employer’s policies, practices or activities to a regulatory, law enforcement or other similar agency or public official. Protected disclosures are those that assert that the employer is in violation of a law that creates a substantial and specific danger to the public health and safety or which constitutes health care fraud under Penal Law §177 (knowingly filing, with intent to defraud, a claim for payment that intentionally has false information or omissions). The employee’s disclosure is protected only if the employee first brought up the matter with a supervisor and gave the employer a reasonable opportunity to correct the alleged violation. If an employer takes a retaliatory action against the employee, the employee may sue in state court for reinstatement to the same, or an equivalent position, any lost back wages and benefits and attorneys’ fees. If the employer is a health provider and the court finds that the employer’s retaliatory action was in bad faith, it may impose a civil penalty of $10,000 on the employer.

2.Section 741:
A healthcare employer may not take any retaliatory action against an employee if the employee discloses certain information about the employer’s policies, practices or activities to a regulatory, law enforcement or other similar agency or public official. Protected disclosures are those that assert that, in good faith, the employee believes constitute improper quality of patient care. The employee’s disclosure is protected only if the employee first brought up the matter with a supervisor and gave the employer a reasonable opportunity to correct the alleged violation, unless the danger is imminent to the public or patient and the employee believes in good faith that reporting to a supervisor would not result in corrective action. If an employer takes a retaliatory action against the employee, the employee may sue in state court for reinstatement to the same, or an equivalent position, any lost back wages and benefits and attorneys’ fees. If the employer is a health provider and the court finds that the employer’s retaliatory action was in bad faith, it may impose a civil penalty of $10,000 on the employer.

 
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