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EXIT SEARCH PRINT ON/OFF FULL SCREEN CONTENTS FIRST LAST BACKTRACK 1 of 35
Header
Code of Conduct
September 2013
Interact with this document.
Here’s how.
Roll your mouse over the text links at the bottom of
the
page to learn about the primary ways to navigate
through the document.
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Table of Contents
Welcome! 3
Resolving and Reporting
Compliance Issues 4
How to Report
What to Report
What Not to Report
Protecting Your Identity
Retaliation is Strictly Prohibited
Our Expectations of You 6
Always Act with Honesty and Integrity
Always be Respectful
Always Follow Our Policies and Procedures
Always Use Good Judgment
Avoid Conflicts of Interest
Never Offer, Solicit or Accept Bribes or Kickbacks
Your Duty to Report and Cooperate
Confidentiality and
Nondisclosure Expectations 10
What is Proprietary Information?
What is Protected Health Information?
What is Confidential Information?
How to Respond to External
Requests for Information
Prohibition Against Insider Trading
Protecting Our Residents
and Patients 13
Resident/Patient Rights and
Your Reporting Obligations
Reporting Changes to Your Employability
Registry and Staffing Agencies
Preventing Fraud And Abuse 15
Contracts
Billing
False Claims and Statements
Fraudulent Financial or Accounting Practices
Laws Prohibiting False
Claims and Statements 18
The Federal False Claims Act and Similar Laws
State Specific Laws
Employee Rights to be Protected
As a Whistleblower
State Specific Provisions
Our Policies and Procedures
Preventing Fraud, Waste and Abuse
How to Handle Gifts
And Business Entertainment 20
Resident/Patient Gifts
Business Gifts
Business Entertainment
Training Events
Business Expenses 22
Technology Use Expectations 23
Our Commitment To You 24
Education and Training
Nondiscrimination and Harassment
Your Privacy
Conclusion 26
Appendix A 27
Appendix B 33
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Welcome!
We are proud to be affiliated with The Ensign Group, Inc., an organization formed in 1999. The name
“Ensign” is synonymous with a “flag” or a “standard,” and refers to setting the standard by which
all others are measured. Whether you are beginning or continuing your relationship with us, it is
important that you understand our commitment to the highest standards of ethics and business
conduct. All individuals affiliated with us must act with integrity, honesty, and in compliance with
all applicable laws and regulations. Herein this Code, “we”, “our” and “us” will be used as reference
for our facilities, agencies, clinics, Service Center and business units.
One of our core values is account ability. To us, accountability means we hold ourselves to the highest
standards of care and professionalism. We developed our Compliance Program as a way to guide us
in this effort. The Compliance Program establishes a process for educating, monitoring, auditing and
documenting our efforts to comply with all applicable laws, regulations and our own internal policies
and procedures.
This Code of Conduct (“Code”) is intended for all employees, business associates, vendors,
contractors and volunteers so that they understand how we expect them to act. We believe
that our continued success requires that the policies and principles contained in this Code are
a component of everyone’s decision making process.
Every employee, business associate, vendor, contractor and volunteer is
accountable for abiding by this Code and reporting all possible violations.
If we determine that conduct occurred which violated any applicable laws,
regulations or our own internal compliance policies, it will serve as the
basis for disciplinary action up to and including termination of employment
or of contractual or business relationships.
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Resolving and Reporting Compliance Issues
In addition to this Code, specific Compliance Policies and Procedures,
a detailed description of the Compliance Program and individual
contact information for our Compliance Team may be found on the
Ensign Portal. You may request copies of any compliance-related
documents from the Administrator or by calling the Ensign Compliance
Hotline at (866) 256-0955.
How to Report
All contacts to the Compliance Team or Ensign Compliance Hotline are
considered confidential. Anonymity will be maintained to the greatest
extent possible. If a compliance question or concern cannot be answered
by reading these materials or if you want to report any issue that you
believe or know may violate the law or our policies and procedures,
please follow these steps:
1.
Speak with the Compliance Officer or a member of the Compliance Team.
Our Compliance Officer, Debbie Miller, is responsible for our Compliance
Program and also serves as the Privacy Officer. Contact information for
our Compliance Team appears in Ensign Portal and as an attachment
to this Code.
2.
Contact the Ensign Compliance Hotline
. You may also make a report
to or consult the Compliance Team directly by calling
(866) 256-0955
.
The Ensign Compliance Hotline is accessible 24 hours a day, 7 days a
week, 365 days a year. An outside third-party operator will ask you for
details about your question or issue, document them, and give you a
reference number for follow-up. You may also submit a concern via
email at
http://ensigngroup.silentwhistle.com
. Reports to the Ensign
Compliance Hotline via telephone or email may be made anonymously
if you prefer.
3. If comfortable, you may discuss with a supervisor or other leaders
and he/she will abide by his/her duty to bring the issue forward
to Compliance.
The main purpose of our Compliance Program is to
educate. Our Service Center has assembled a team
of compliance experts, the Compliance Team, to lead
and support us in this effort. The Compliance Team is
comprised of professionals in nursing, therapy, billing,
MDS, legal and human resources-related matters.
From time-to-time, you may see them visit our location.
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Resolving and Reporting Compliance Issues
What to Report
You must make a report if you believe activities are occurring or have
occurred that are illegal, unethical or violate this Code, the Employee
Handbook or any policy or procedure.
Your duty to report also includes your knowledge of any criminal charges
or convictions brought against you during your employment with us.
Due to the very sensitive nature of our work, we will do everything
possible to create a safe environment for our residents and patients.
If you reported a concern to a supervisor but it was not resolved or if you
feel that you have been retaliated against for raising a concern, please
report it directly to the Ensign Compliance Hotline. Failure to report a
known or suspected compliance issue is itself a compliance violation.
What Not to Report
We take all reports of potential violations seriously. Therefore, a person
should never make a false report. We will not take disciplinary action
against a person who reports incorrect information but believed or
suspected that it was true.
If you are unsure whether to make a report, report it just to be safe.
Protecting Your Identity
The identity of individuals who report a violation in good faith or who
participate in an investigation into any compliance concern are
maintained confidential to the extent possible and permitted by law.
Anonymous reports are permitted when calling or emailing the Ensign
Compliance Hotline or if requested upon when contacting a member
of the Compliance Team directly. We do not and cannot “trace” your
identity, telephone number or email address.
Retaliation Is Strictly Prohibited
Intimidation or retaliation against anyone who in good faith raises or
reports a compliance concern or who participates in any compliance
investigation or proceeding is strictly prohibited. The term “good faith”
means that the person acted with an honest and proper intention
.
This non-retaliation policy applies to reports made through any means.
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Our Expectations Of You
Always Act with Honesty and Integrity
All of your actions as our representative should be truthful, honest and
made with integrity. Please always:
n
Protect our residents/patients and their property;
n
Provide residents/patients with information that is accurate
and appropriate;
n
Enter only accurate information in any resident/patient record,
including the medical record;
n
Provide truthful information about our business operations in
any of your communications with government agencies;
n
Respect and protect our property and resources;
n
Employees must work as scheduled, use sick and vacation days
appropriately and record any and all of their actual hours worked;
n
Avoid gossip or any other form of false or negative communication
which undermines our organization or its employees and our
professional purpose.
Please deal fairly with everyone you encounter in our workplace. Do not
take advantage of us, our residents/patients, employees or anyone
through any form of manipulation, concealment, abuse of confidential
information, misrepresentation or any other unfair or dishonest practice.
Examples of unfair or improper conduct toward
our residents/patients are acts such as:
n
Borrowing money or asking for a donation from a resident/
patient or their family member;
n
Having anything other than a professional relationship with a
resident/patient;
n
Improper use of resident/patient funds;
n
Using organizational property or resources intended for the
care of the residents/patients for personal purposes.
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Our Expectations Of You
Always Be Respectful
Everyone who walks through our doors shall be treated with courtesy
and respect; this includes residents/patients, family members, vendors or
contractors, visitors and co-workers. Everyone with whom you interact
has talents and capabilities that are valuable and worthy of your respect.
You also possess individual qualities and characteristics which make you
worthy of the respect of others.
If you have witnessed a situation which violates this expectation, or if
you believe someone has behaved inappropriately toward you, please
alert a supervisor, any leader, or the Ensign Compliance Hotline or
Compliance Team.
Never say or do anything that might:
n
Jeopardize your safety or the safety of others;
n
Be considered offensive to anyone;
n
Violate or appear to violate laws, regulations or our policies.
Always Follow Our Policies and Procedures
We adopted certain policies and procedures to instruct you on how to
deliver care and to properly create and maintain accurate medical and
financial records. You are expected to be familiar and comply with these
standards, without exception.
If you are ever unsure about our policies or have any questions about
the way you perform your job, speak with a supervisor. If you believe
that any policy or practice compromises your ability to do your job,
or conflicts with what you understand the law to be, please contact
the Compliance hotline or team or speak with a supervisor if you are
comfortable doing so.
Always Use Good Judgment
Always use your best judgment when it comes to providing care to and
communicating with our residents/patients.
If you witness anything which suggests that inappropriate activity is
occurring, report it immediately.
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Our Expectations Of You
Avoid Conflicts of Interest
We value fair and honest dealings with our residents/patients, co-workers,
vendors, competitors and other business partners. Employees must
uphold these values by, among other things, avoiding actual or potential
conflicts of interest.
What is a “bribe” or a “kickback”?
A bribe is the offering of anything of value in exchange for referrals
of business. A kickback occurs when a person receives anything
of value in exchange for referrals of business. Offering, soliciting
or accepting any type of bribe or kickback is strictly prohibited.
You may work for another employer as long as it does not cause
a conflict of interest or interfere with your job performance.
Other examples of possible conflicts of interest include:
n
Promoting a personal business during your working hours;
n
Selling goods or services for an outside company during working hours;
n
Recommending the hiring of a family member or close friend without
first disclosing the relationship to your supervisor or a leader;
n
Engaging in political activities at work;
n
Serving in a position with a competitor or outside service provider;
n
Giving endorsements or testimonials for a vendor without
administrative approval.
Any business or financial opportunities you discover through the use of
our information or your position belongs to us and may not be used for
personal gain.
What is a conflict of interest?
A conflict of interest exists if you have an interest that interferes
with your responsibilities at work or may affect your judgment
on behalf of our business. For example, a conflict may exist if
a member of your family sells wheelchairs. This could affect
your independent judgment on our behalf if you are asked to
recommend wheelchair supply vendors.
If you are in or know of a situation that might be viewed as a conflict of
interest, you must inform your supervisor, the Ensign Compliance Hotline
or Compliance Team immediately. They will help you determine if an
actual conflict of interest exists and will take action if necessary.
Never Offer, Solicit or Accept Bribes or Kickbacks
There may be occasions where your position may influence decisions
affecting our business or our residents/patients. Examples of such
decisions include the possibility of resident/patient referrals for services
provided by another company; selection of goods or services or access
to confidential information.
This prohibition applies not only to cash but also to anything of value,
such as discounted or free goods or services, gift cards, gifts, office
space, use of equipment or other services provided by physicians or
vendors at less than fair market value, or waiving the co-payment of a
Medicare beneficiary.
In addition, state and federal laws prohibit bribes or kickbacks in exchange
for referrals of residents/patients whose stays or services are paid for
by Medicare or Medicaid. For example, the federal Anti-Kickback Statute
makes it a crime for anyone to knowingly and willfully solicit, receive or
pay anything of value in return for referring an individual to a person for
any item or service for which payment may be made in whole or in part
under a federal health care program. Punishment for a felony conviction
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Our Expectations Of You
under this law is a fine of not more than $25,000 or imprisonment for not
more than 5 years, or both, administrative civil money penalties of up to
$50,000, and exclusion from the federal health care programs.
Subject to specific exceptions, the Federal Anti-Self Referral (Stark)
Statute (42 U.S.C. § 1395 (a) 42 U.S.C. § 1903(s)) prohibits a physician
from referring federal health care program patients for certain
designated health services to an entity with which the physician or
an immediate family member has a financial relationship. No specific
intent is required. A financial relationship is either a direct or indirect
ownership interest or compensation arrangement. Those who violate
the anti-self referral laws are subject to substantial civil money penalties
and exclusion from the federal health care program for improper claims.
The anti-self referral law imposes specific reporting requirements on
entities that receive payment for services covered by federal health
care programs. Failure to report would subject the entity to civil money
penalty of up to $10,000 for each day for which reporting is required to
have been made.
Examples of bribes or kickbacks include:
n
Causing us to purchase any goods or services for which you receive
a personal benefit;
n
Accepting a below fair market price for goods or services covered by
Medicare, Medicaid or any other federal or state health care program
in exchange for referring business to a vendor for which the vendor
charges the government program a higher price.
If you have any question concerning a potential offer, solicitation or
other relationship or arrangement that may violate these laws, check
immediately with the Compliance Officer. Any agreement, relationship
or arrangement that may be a kickback or bribe, must also be reported
immediately to the Compliance Team.
Your Duty to Report and Cooperate
If you are an employee, vendor or contractor of an Ensign-affiliated
business or if you were given a copy of this Code then you have a duty
to report any and all possible violations of this Code or any applicable
laws or regulations using the reporting procedures set forth herein.
In addition, we also expect you to cooperate with any investigation into
matters that might be compliance violations. If members of management,
our Compliance Team or the Ensign Service Center contact you, please
respond to their inquiries to the very best of your ability. You are also
requested to maintain your knowledge of any investigation confidential to
avoid impacting the effectiveness or integrity of the investigation.
Confidentiality and Nondisclosure Expectations
What Is Proprietary Information?
Documents and information that belong to us are “proprietary information.”
You may use it in the performance of your job, but you may not use it for
any other purpose. Examples are:
n
Records generated, received or viewed by you at work;
n
Forms and manuals created by the Ensign Service Center or any
Ensign-affiliated business;
n
The unique and special ways in which we conduct our business and
which are not publicly known;
n
Our trademark or logo or those of The Ensign Group or Ensign Services.
What Is Protected Health Information?
All resident/patient information, such as name, diagnosis, Social Security
numbers, treatment, or any other data may constitute “protected health
information” as that term is defined by the Health Insurance Portability
and Accountability Act, otherwise known as “HIPAA”.
Our “Notice of Privacy Practices” was created to further explain the
rights of our residents/patients as they relate to the protection of their
health information. It lists our responsibilities to the resident/patient in
terms of safeguarding this data. Employees and business associates
are expected to maintain protected health information confidential at all
times. All disclosures of protected health information must be specifically
authorized or permitted by state and federal law. If you are unsure about
whether or not to release or use protected health information, ask your
Compliance Team first.
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Information is one of our most valuable and sensitive
assets. Internally, we want to take full advantage of
it to provide the best care for our residents/patients.
But we need to be careful not to reveal or misuse
information which is proprietary, confidential or
constitutes protected health information.
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Confidentiality and Nondisclosure Expectations
What Is Confidential Information?
Proprietary and protected health information are considered confidential
information, but there is other information we also treat as confidential:
n
Information about our employees, such as rate of pay, disciplinary
history, or other personal or personnel information, including Social
Security numbers and other identifying information;
n
Any information about our business that is unavailable to the public
or non-employees should be considered confidential and proprietary
information. Photographs of our residents/patients, our care areas and
our interior are examples.
Examples of improper uses of proprietary, confidential or resident/
patient protected health information include:
n
Taking copies of resident/patient medical records outside our workplace;
n
An HR/Payroll Representative telling employees how much other
employees earn;
n
Copying our Policy & Procedure Manual and giving it to a manager
at a different job;
n
Utilizing information, obtained during the course of your employment
with us, to start your own business venture.
Any unauthorized disclosure of confidential information is called a
“breach.” All breaches must be reported to our Compliance/Privacy
Officer immediately upon discovery. Depending on the type of information
disclosed, we may be required by law to notify government agencies and
any individuals impacted.
Here are some examples of a breach:
n
A box of medical records is lost when transporting it to a storage area;
n
You are speaking about a change of health condition of a resident/
patient with an individual not authorized or allowed to receive
the information;
n
Photographs of our residents/patients, our care areas and our interior
are posted on the internet without appropriate written consent.
Even after your relationship with us ends, you continue to be contractually
obligated to protect confidential information. Employees are bound by
the terms of the “Access and Confidentiality Agreement” signed at the
beginning of employment. Vendors or contractors must abide by the
terms of the “Business Associate Agreement” executed at the time the
contract or business relationship was entered.
Always Protect Proprietary, Protected Health and
Confidential Information
Protecting the proprietary, protected health and confidential
information to which you have access is mandatory for our
employees and for anyone doing business with or performing
services for us.
You may not use our proprietary, confidential or resident/patient protected
health information for any reason other than a legitimate business need.
It also may not be used without consent, removed from our premises or
information systems at any time, shared with others or used by you for
personal reasons.
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Confidentiality and Nondisclosure Expectations
How to Respond to External
Requests for Information
Please be careful in all of your communications about our business, its
residents/patients, employees, vendors and competitors. If someone
asks you about the status of a resident/patient
do not
include protected
health information, as these discussions can result in inadvertent, but
nevertheless inappropriate or illegal disclosure of information.
If you publish or post to an Internet source like Facebook, please
understand that the Confidentiality and Nondisclosure Expectations
apply to
all
communications, even those made on the Internet or outside
the workplace. You may not publish or post confidential information
(including photographs containing proprietary, confidential or resident/
patient protected health information) to any Internet source.
Only certain designated employees may respond to requests for
information regarding our employees. Even if you are the employee’s
Supervisor, you are not permitted to provide an employment reference
or employment or wage verification, unless you have been specifically
authorized by a manager, leader or the Ensign Human Resources
Department.
If an employee receives any governmental request for information such
as a subpoena, a written request from a government agency or a search
warrant, the employee should immediately contact the Compliance
Officer or the Ensign Legal and Risk Department at (949) 487-9500.
If a government investigator or agent visits and requests information,
the Administrator or business leader must be consulted before any
information is released.
Employees are not permitted to respond to inquiries from the news
media, including newspapers, television, radio, magazines or online
publications seeking a statement from us. Refer all such inquiries to your
leader such as the Administrator or Executive Director.
Prohibition Against Insider Trading
If you are the recipient of stock grants, stock options, or are an owner of
stock of The Ensign Group, Inc., you need to be aware of the prohibition
of insider trading. Your position within the organization may expose you
to certain non-public information. If so, you are considered an “insider”
and are subject to certain stock trading restrictions, including quarterly
“black-out periods” and other pre-clearance procedures.
Federal law prohibits any person who has “material non-public
information” (which includes important financial, clinical or other
confidential information about the company’s performance or prospects
that are not public), from buying or selling stock, regardless of any policy
or window.
For more detailed information on what is and is not prohibited, please
see our “Policy Regarding Insider Trading” or contact the Ensign Legal
& Risk Department at (949) 487-9500.
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Protecting Our Residents/Patients
Resident/Patient Rights and
Your Reporting Obligations
Residents/patients have the right to a dignified existence, self-determination
,
communication with and access to people and services, and to reasonable
accommodation of individual needs. In addition, residents/patients have
the rights identified in applicable state and federal laws, rules and
regulations
to be free of coercion, interference, discrimination, or reprisal
in exercising autonomy and choice in their everyday lives.
Residents/patients also have the right to be free from verbal, sexual,
physical and mental abuse, corporal punishment, neglect, and involuntary
seclusion. All employees are required by law to report any incident of
suspected abuse, including injuries of an unknown origin and the taking
of personal property, to the state. Please report your suspicions to the
Administrator, Executive Director or other leader so that the incident may
be investigated and reported.
A statement of the resident/patient rights will be made available to
residents/patients, their families, responsible parties and visitors
as
well. None of the rights listed shall be denied or limited, unless
authorized by law.
In addition, the Elder Justice Act requires all employees, managers,
agents and contractors of long term care facilities to report to the
State Survey Agency and at least one local law enforcement branch
any reasonable suspicion of a crime against any resident/patient.
If the events that caused the suspicion of a crime resulted in serious
bodily injury, the report shall be made no later than two hours after
forming the suspicion. Otherwise the report must be made within
24 hours after forming the suspicion.
Our residents/patients are the reason we exist. Therefore,
it is critical that we all understand their rights and our
responsibilities to protect and keep them safe.
If you work for us, you are responsible for promoting,
respecting and protecting resident/patient rights.
You must immediately report any possible violation of resident/
patient rights, suspected abuse or suspicions that a resident/patient
is the victim of a crime. If you believe we did not properly address
any incident involving a resident/patient, please call the Ensign
Compliance Hotline.
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Protecting Our Residents/Patients
Reporting Changes To Your Employability
We screen all prospective employees to determine whether they have
committed certain offenses or acts which would preclude employment
in the health care setting or in a position with access to financial data or
controls. This check includes a review of the Office of Inspector General’s
Cumulative Sanctions Report and List of Excluded Individuals/Entities
and the General Services Administration’s list of debarred contractors to
preclude employment of applicants who have been excluded from the
Medicare or Medicaid programs or other federal programs. This is then
verified on a monthly basis post-employment. We also check applicable
state nurse aide registries to verify that the registry contains no
information that would preclude the individual’s employment. A search
of state and federal criminal records is also performed to the extent
permitted by state law. Any required license or certification required to
perform the job is also verified.
If, after your screenings are complete, you are charged with a criminal
offense related to the delivery of health care services, endangerment of a
child or an elderly person, or are proposed for exclusion from participation
in any federal health care program, you must immediately report the
matter to your supervisor. Being charged with or convicted of a crime
directly related to your employment with us may result in termination
of employment. However, we do consider all of the circumstances and
your employment record with us in making any decisions.
If your job requires license or certification, you are expected to meet
all the requirements associated with maintaining such license or
certification in good standing at all times. If your license or certification
lapses, is suspended or revoked, or if you are disciplined by your
licensing body for any reason, you must immediately report this to
your supervisor.
Registry and Staffing Agencies
Registry and personnel agencies that provide us with temporary staff
must certify that their staff is licensed and certified as required by law
and have undergone legally sufficient background checks that meet or
exceed the standards set for our own employees.
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Preventing Fraud and Abuse
Contracts
All contracts between an Ensign-affiliated entity and any contractor
or vendor shall meet the requirements listed below:
n
Be on the standard form agreements provided by the Ensign Legal
& Risk Department unless approval to use an alternative form is
received from the Ensign Legal & Risk Department;
n
Be in writing;
n
Be negotiated only by the Administrator or designated leaders,
Ensign’s General Counsel or other member of the Ensign Legal
& Risk Department;
n
Be reviewed by the Ensign Legal & Risk Department if with physicians
or if over $25,000/year in annual aggregate expenditure or do not
provide that they are terminable without cause upon not more than
90 days notice;
n
Be signed by all the parties;
n
When taken as a whole, be reasonable in their entirety;
n
Specify the terms by which compensation and any other benefits
are provided;
n
Specify all the obligations of the parties in reasonable detail;
n
Not take into consideration in any way the volume or value of
referrals provided;
n
Be for a term of at least one year, provided that such contracts may
contain termination clauses which permit termination without cause.
However, if a contract is terminated before the end of the term, a new
contract may not be entered into with the same entity or individual
without the approval of the Ensign Legal & Risk Department;
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Preventing Fraud and Abuse
n
If the contract is for services subject to Medicare consolidated billing:
•
Confirm that the vendor will bill us for services provided
to Medicare patients, and that the vendor will not submit
bills to Medicare directly for these services, except for
those services specifically excluded from the consolidated
billing requirements;
•
Confirm that the vendor or its subcontractors will ensure
we are provided with any necessary orders or certifications
to provide the service in order to receive payment from
Medicare for such service.
n
Comply with all provisions required by federal and state healthcare
programs, laws, and regulations. The law contains several “safe
harbors” that provide protection from prosecution for certain
transactions and business practices with further guidelines provided
in 42 C.F.R. § 1001.952. Please consult with the Compliance Officer or
the Ensign Legal & Risk Department for further information regarding
“safe harbor” arrangements.
This list is not exhaustive, but it is the minimum required.
Billing
We are committed to prompt, complete and accurate billing of all services
for payment by residents/patients, government agencies or other third
party payors. Billing will occur only for services actually provided and
which complied with all terms and conditions specified by the government
or private payor, or which are consistent with industry practice.
False Claims and Statements
False claims and billing fraud may take a variety of forms, including
false statements supporting claims for payments, misrepresentation
of material facts, concealment of material facts, or theft of benefits or
payments from the party who is entitled to receive it.
Any person in any way affiliated with us must
specifically refrain from:
n
Billing for services not actually provided as claimed or for
unnecessary services;
n
Fraudulently changing procedure or diagnosis codes;
n
Brand-name billing for generic drugs;
n
Billing for services provided by unlicensed practitioners;
n
Billing prior to Minimum Data Set (“MDS”) submission and
acceptance from CMS;
n
Billing for services that do not meet Medicare or Medicaid
program requirements, such as the requirement that all services
be “reasonable and necessary”;
n
Improperly or inaccurately completing MDS assessments or any
other forms that are used to determine payment amount.
Employees are strictly prohibited from making or submitting false or
misleading entries on any bills or claim forms and from participating in
any arrangement that results in those acts.
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Fraudulent Financial or Accounting Practices
If you, or anyone you come into contact with through your employment,
have reason to believe that our personnel or any person or business
associated with us is engaging in false billing practices or improper or
fraudulent accounting activities, you are required to immediately report
the practice to the Ensign Compliance Hotline.
Preventing Fraud and Abuse
Positions that have financial or accounting
responsibilities are prohibited from engaging in:
n
Fraudulent or false accounting/record keeping entries;
n
Waiving the co-payment of a Medicare beneficiary;
n
Misuse of resident/patient trust funds;
n
Transactions or contracts between us and any manager,
supervisor, employee or their family members;
n
Transactions or contracts obligating us to perform services or
make payments, but directing the benefit for such services or
payments to a different entity or person;
n
Unauthorized impairment or write-off of assets that causes a
material loss;
n
Unauthorized payments of money to any organization or person,
including payments of wages not earned.
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Laws Prohibiting False Claims and Statements
Under the Deficit Reduction Act of 2005, a health care entity is required
to provide all employees with information regarding the federal False
Claims Act and similar state laws, an employee’s right to be protected as
a whistleblower, and our programs, policies and procedures for detecting
and preventing fraud, waste, and abuse.
One of the primary purposes of the false claims act legislation is to combat
fraud and abuse in government healthcare programs. False claims laws
do this by allowing the government to bring civil actions to recover
damages and penalties when healthcare providers submit claims based
on false information. Some of these laws also permit lawsuits to be
brought by lay people, referred to as “whistleblowers,” with knowledge
of alleged violations of false claims acts.
The Federal False Claims Act and Similar Laws
The federal False Claims Act (FCA) applies to fraud against the federal
government through the federal healthcare programs, including Medicare
or Medicaid purchases, as well as to government purchases and contracts.
Actions that violate the FCA include: (1) submitting a false claim for
payment, (2) making or using a false record or statement to obtain
payment for a false claim, (3) conspiring to make a false claim or get one
paid, or (4) making or using a false record to avoid payments owed to the
United States Government. The FCA extends to those who have actual
knowledge of the information as well as those who act in deliberate
ignorance or in reckless disregard of the truth or falsity of information.
Examples of a false claim include submitting a claim for a service that
was not rendered or billing for services which are not documented
or supported in the resident/patient’s medical record. Penalties include
fines from $5,500 to $11,000 per false claim, payment of treble damages,
payment of the costs of suit for recovery, and exclusion from participation
in federal healthcare programs.
Because we receive money from government health
programs, we are required to follow strict legal
requirements regarding the way we do business.
Our failure to observe these rules and regulations could
cause the government to refuse to do business with us
which would jeopardize our ability to continue to operate.
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Laws Prohibiting False Claims and Statements
The FCA includes a whistleblower provision, which allows someone with
actual knowledge of alleged FCA violations to file suit on the federal
government’s behalf. After the whistleblower files suit, the case is kept
confidential while the United States Attorney General conducts an
investigation to determine whether it has merit. The federal government
may decide to take over the case. If so, the whistleblower receives
between 15 and 25 percent of any recovery, plus attorney’s fees and
costs, depending on his or her contribution to the case. If the federal
government declines to take over the case, the whistleblower may still
pursue the suit. A whistleblower who prevails may receive between
25 and 30 percent of the amount recovered on the federal government’s
behalf as well as attorney’s fees and costs.
The Program Fraud Civil Remedies Act of 1986 (PFCRA) provides
administrative remedies for knowingly submitting false claims or making
false statements. A false claim or statement includes submitting a claim
or making a written statement that is for services that were not provided,
or that asserts a material fact that is false, or that omits a material fact.
A violation of the PFCRA results in a maximum civil penalty of $5,000
per claim plus an assessment of up to twice the amount of each false or
fraudulent claim. The PFCRA is enforced through the federal agency that
oversees the government program to which the false claim or statement
was made.
State Specific Laws
For Arizona, California, Colorado, Iowa, Idaho, Nebraska, Nevada,
Oregon, Texas, Utah and Washington, see
Appendix A
.
Employee Rights to be
Protected as a Whistleblower
The federal False Claims Act (FCA) protects employees from retaliation
if they, in good faith, report fraud. Employees are protected against
retaliation such as being fired, demoted, threatened or harassed as a
result of the employee’s investigation or initiation of, testimony for, or
assistance in a FCA action that has or will be filed. An employee who
suffers retaliation can sue, and may receive up to twice his or her back pay,
plus interest, reinstatement at the seniority level he or she would have had
if not for the retaliation, and compensation for his or her costs or damages.
This law does not insulate the employee from disciplinary action if it turns
out that he or she is involved in the reported wrongdoing.
State Specific Provisions
For Arizona, California, Colorado, Idaho, Nebraska, Nevada, Oregon,
Texas and Washington, see
Appendix B
.
Furthermore, our policies require employees, contractors and agents
with knowledge of potential fraud or violations of federal or state law to
report such conduct. Retaliation for making a truthful report of suspected
unlawful activities is strictly prohibited.
Our Policies and Procedures
Preventing Fraud, Waste and Abuse
We are fully committed to compliance with all laws and regulations
that apply to its business and has various policies and procedures in
place for preventing and detecting fraud, waste, and abuse. These
policies and procedures include this Code, and the overall Compliance
Program. You may request copies of these policies or the Compliance
Program from the Compliance Officer or the Ensign Service Center at
(949) 487-9500. Our employees or anyone with a compliance concern
may contact any member of our Compliance Team or the Ensign
Compliance Hotline for guidance or to initiate an investigation.
In addition, our Compliance Team periodically audits us and all
Ensign-affiliated companies to ensure compliance with applicable
laws, regulations and internal policies and procedures designed to
prevent fraud, waste and abuse.
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How to Handle Gifts and Business Entertainment
Because of our unique role as a health care provider, the act
of accepting gifts, tips or anything of material value from a
resident/patient or their family member, vendor, competitor
or others with whom we do business or may potentially do
business may create the impression that the gift improperly
influenced our judgment in rendering care or providing services.
As a result, neither you nor your family members may give
or accept anything of material value except under the limited
circumstances described on this and the following pages.
Resident/Patient Gifts
n
Gifts of cash or cash equivalents such as gift cards to/from a resident/
patient are never allowed.
n
We, and this includes all of our employees, are prohibited from
accepting any gifts, tips, hospitality, or entertainment in any amount
from or on behalf of a resident/patient, except that consumable gifts
given to a department or group are permitted. Examples include a
resident’s/patient’s family providing baked goods or a box of candy
to the staff.
n
Under no circumstances may anyone solicit a gift of any kind, or show
or imply special favoritism to a resident/patient who, or whose family,
provides the gift.
n
Gifts to/from a resident/patient or their family given as an inducement
to admit the resident/patient are never permitted.
n
Memorials and bequests made to all employees or to our operation
may be accepted so long as the purpose is proper. Neither employees
nor their family members may request memorials and bequests from
our residents/patients, current or former.
n
Gifts may be made to residents/patients who have no regular visitors
or with limited or no personal funds on holidays, birthdays or for the
resident’s/patient’s comfort or psychosocial well-being. Examples are
clothes, personal supplies, or food.
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How to Handle Gifts and Business Entertainment
Business Gifts
Employees are discouraged from accepting gifts from our business partners.
n
Employees are not permitted to solicit, require, receive or accept from
any person or entity, or offer or give to any person or entity, any gift or
other item of a material value if that person or entity is in a position to
refer business to us.
n
Non-monetary gifts of nominal value that are a customary token of
appreciation of a business relationship by a person or entity that does
business with us may be accepted or given on an infrequent basis.
Examples would be a coffee mug, pens or a calendar given or received
once or twice per year.
n
Gifts of cash are never allowed. Because gift cards may be used like
cash, they should not be accepted or provided.
n
Gifts known or understood to be given to specifically induce or
reward a referral of a resident/patient, services for a resident/patient
or goods and services paid for by any federal health care program
are never permitted.
Business Entertainment
You may be invited to attend a social event by a current or potential
business partner in order to further develop a professional relationship.
You may accept an invitation or invite a current or potential business
partner if:
n
The event is reasonable and customary (such as a restaurant meal).
An all-expense paid vacation is not reasonable and customary.
n
No travel expenses are involved (such as airfare and lodging).
n
Employees may not solicit an invitation to a social event from a
business partner and employees must refuse solicitations of invitations
by a business partner.
n
Events should occur infrequently and are limited to four times per year
from or to the same business partner, unless approved in advance by
the Compliance Officer.
n
You may attend business meetings where food and beverages are
provided; however, business must be discussed.
Training Events
Sometimes a vendor or supplier will invite you to participate in a training
or educational activity, and will offer to pay for all travel and related
expenses. As a general matter, you must refuse this type of invitation;
acceptance may create the appearance of impropriety. If you have an
actual need you can identify for the proposed trip, obtain prior approval
from your operation’s leader or the Compliance Officer.
All leaders must consult the Compliance Officer if in doubt about
whether a gift, event or expense is appropriate.
We expect all of our contractors and vendors to comply with these
guidelines and never offer or accept anything that may violate
these standards.
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Business Expenses
Purchases must be business-related and may not include items for
personal use. Please do not purchase any product, service or use any
merchant that may be considered inappropriate for payment using
company funds.
Receipts with line item detail must be obtained and submitted for all
business expenses. Expense reports must be submitted within the month
following the business expense. Company credit card users are required
to use the online system to reconcile their business expenses. Those
without a credit card must submit a paper expense report. Employees
are expected to reconcile company credit card statements and expense
reports honestly and truthfully and shall include a brief description of
the purpose of the expense.
Our core values call upon us to be good and honest
stewards of expenses. Some individuals are required to
purchase items on behalf of the company, including travel
and meal expenses. At times, these individuals may be
issued a company credit card.
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Technology Use Expectations
We may have a legitimate business need to access, review, copy, move
or delete the content and information carried by these technologies
at any time and without notice, and retain the right to do so. We do
not guarantee your privacy when using these resources, therefore,
you should not have an expectation that your information, writings or
communications will be private.
All workplace guidelines, including those in our Employee Handbook,
apply to the use of technology. These include the guidelines concerning
harassment and discrimination, sexual harassment and violence in the
workplace. Discriminatory and/or inappropriate behavior when using
these technologies will not be tolerated. Our Information Systems
Policies and Procedures will help guide you.
Technologies such as voicemail, computers, software,
e-mail and Internet access are provided for business
purposes only.
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Our Commitment to You
Education and Training
New employees shall receive compliance education about this Code
within 30 days of their hire date as part of the new employee orientation
program. All employees shall be re-educated about the standards
contained in this Code on an annual basis. If you do not receive this
training, please contact the Ensign Compliance Hotline or a member
of the Compliance Team.
You are expected to participate in education and training programs at
least annually, which may include job-specific training on the relevant
state and federal laws, rules and regulations. Additional specific
education may occur as necessary to comply with a corrective action
plan or to address recent changes in applicable laws or regulations.
Training programs may include, but not be limited to, such topics as:
n
Job specific overview of compliance policies and procedures for
implementing the policies, focusing on the policies and procedures
applicable to each employee’s job responsibilities;
n
Compliance with Medicare and Medicaid requirements of participation
relative to specific functions, if applicable;
n
Your duties and obligations as an employee of a covered entity under
the Health Insurance Portability and Accountability Act (HIPAA);
n
The personal obligation of each employee involved in patient care,
documentation or reimbursement processes to ensure that such
information is accurate;
n
Claims submission requirements;
n
Prohibiting bribes or kickbacks;
n
Resident/patient rights;
n
Duty to report actual or suspected abuse, misconduct or crimes
against residents/patients;
n
Fraud and abuse laws, including procedures for detecting and
preventing fraud, waste, and abuse in state and federal health
care programs;
n
Other topics required by state and federal law.
Another one of our core values is the concept “customer
second”. This means we put our employees first so that
they are empowered and inspired to provide the best
possible care to our residents/patients. The Employee
Handbook details specific information regarding
employee benefits and services. The following areas
are our compliance commitment to you so that you
understand what to expect from us.
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Our Commitment to You
We take our obligation to train and educate our employees seriously
on issues of compliance and the role it plays in its overall operation.
Therefore, you are required to participate in these training programs
as a condition of your continued employment.
Participation in these training programs is required for some contractors
and vendors. This process is managed by the Ensign Service Center.
These contractors and vendors must also receive a copy of this Code
and are expected to comply with all of its provisions.
Nondiscrimination and Harassment
We are committed to the principles of equal employment opportunity
and do not discriminate on the basis of any protected classification.
Our policies governing these concepts may be found in the “
Preventing
Discrimination, Harassment and Retaliation
” section of our Employee
Handbook. Suspected discrimination, harassment and retaliation must
be reported so that it may be investigated and corrective action taken,
if necessary. Please use the reporting procedures set forth herein
or contact the Ensign Human Resources Department directly at
(949) 487-9500.
Your Privacy
We respect your privacy and take great care to protect your personal
information. The Health Insurance Portability and Accountability Act
(HIPAA) exists to control the use and disclosure of protected health
information and your rights with respect to your health information.
We typically have very little, if any, of your protected health information,
such as the results of physical examinations or documents related to a
workplace injury. However, we want to communicate how we protect
your privacy.
We limit access to your personal information, including any protected
health information we may process, and ensure that proper destruction
of records occurs periodically as stated in our “
Record Retention Policy
”.
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Conclusion
This Code covers a wide range of topics. It is intended to offer a framework
to help you make good decisions that are compliant with our policies
and the law in connection with your employment. However, no manual
or guidebook can address every possible situation that may implicate
these standards. Please ask questions if you are ever unsure about how
to proceed.
We hope you have found this Code useful and welcome
your feedback and suggestions.
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Appendix A
ARIZONA STATE LAW
Submitting false claims to the state Medicaid program is illegal under
Arizona Revised Statutes (A.R.S.) § 36-2918. The statute prohibits,
in pertinent part, presenting or causing to be presented a claim for
payment: (1) for a medical or other item or service that a person knows
or has reason to know was not provided as claimed; (2) for a medical
or other item or service that the person knows or has reason to know
is false or fraudulent; and (3) that may not be made by the system
because (i) the person or entity providing the service was terminated
or suspended from participation in the program on the date for which
the claim is being made; (ii) the item or service claimed is substantially
in excess of the needs of the individual or of a quality that fails to meet
professionally recognized standards of health care; or (iii) the patient was
not a member on the date for which the claim is being made.
The Arizona Health Care Cost Containment System (AHCCCS) decides
the amount of penalties or assessments imposed on a provider for
violations of A.R.S. § 36-2918. False claims submitted to the state
Medicaid program also may result in criminal prosecution. If convicted,
the provider could be found guilty of a class 5 felony.
Arizona law further requires that providers of services under the state
Medicaid program self-report, in writing, cases of suspected fraud to
the Director of AHCCCS. The report is reviewed by AHCCCS and may
be referred to the state attorney general. Anyone making a complaint
or report in good faith is immune from civil liability by reason of that
action unless that person has been charged with or is suspected of the
violation reported.
Unlike the federal False Claims Act, Arizona law does not include a
whistleblower provision allowing individuals with knowledge of false
claims to the state Medicaid program to bring civil lawsuits to recover
monetary penalties and damages.
CALIFORNIA STATE LAW
The California False Claims Act (CFCA) applies to fraud involving
state, city, county or local government funds, including funding for
the California state health care program, Medi-Cal. (Cal. Gov’t Code
§§ 12650-12655.) Actions that violate the CFCA include: (1) knowingly
submitting a false claim for payment, (2) knowingly making or using a
false record to get a false claim paid, (3) conspiring to make a false claim
or get one paid, or (4) making or using a false record to avoid payments
owed to state or local government. The CFCA extends to those who
have actual knowledge of the information as well as those who act in
deliberate ignorance or in reckless disregard of the truth or falsity of
information. In addition, anyone who benefits from a false claim that
was mistakenly submitted violates the CFCA if he or she does not
disclose the false claim to the state or local government within a
reasonable time after discovery.
Penalties include payment of treble damages to the state or local
government, payment of the costs of suit for recovery, and a maximum
civil penalty of up to $10,000 for each false claim.
The CFCA includes a whistleblower provision, which allows someone
with actual knowledge of alleged CFCA violations to file suit on the
state or local government’s behalf. After the whistleblower files suit,
the case is kept confidential while the State Attorney General conducts
an investigation to determine whether it has merit. The state or local
government may decide to take over the case. If so, the whistleblower
receives between 15 and 33 percent of any recovery, plus attorney’s fees
and costs, depending on his or her contribution to the case. If the state or
local government declines to take over the case, the whistleblower may
still pursue the suit. A whistleblower who prevails may receive between
25 to 50 percent of the amount recovered on the government’s behalf as
well as attorney’s fees and costs.
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Appendix A
COLORADO STATE LAW
The Colorado False Medicaid Claims Statute applies to Medicaid
reimbursements and prohibits persons or companies from making
or causing to be made false or fraudulent claims to the government
for payment or knowingly making, using or causing to be made or
using a false record or statement to get a false or fraudulent claim paid
by the government. Therefore, this law prohibits conduct such as:
n
Billing Colorado’s Medicaid program for services or goods
not provided;
n
Billing Colorado’s Medicaid program for undocumented services;
n
Making false or inaccurate entries in resident medical records and any
other documentation used to support reimbursement;
n
Billing Colorado’s Medicaid program for unnecessary services;
n
Describing non-covered services in a manner that would qualify for
reimbursement from Colorado’s Medicaid program;
n
Assigning incorrect codes to a service in order to obtain increased
reimbursement;
n
Failing to seek payment from beneficiaries who have other primary
payment sources;
n
Participating in kickbacks or rebates;
n
Failing to maintain, or destroying, medical records or other
documentation that support Medicaid reimbursement.
A person or entity convicted of violating Colorado’s False Medicaid
Claims Statute is subject to civil penalties of between $5,000 and
$50,000 per claim or twice the amount of all medical assistance received.
Suspension from Colorado’s Medicaid program is also possible. Criminal
penalties of fines and imprisonment for up to eight years also apply.
IOWA STATE LAW
Submitting false claims to Medicaid also violates the Iowa Medical
Assistance Act. Iowa law imposes liability on any person who, with
intent to defraud or deceive, makes, or causes to be made or assists in
the preparation of any false statement, representation, or omission of a
material fact in any claim or application for any payment, regardless of
amount, from the Medicaid Agency, knowing the same to be false.
Violations may result in restitution of the overpayments and other
sanctions, including suspension of payments for services, suspension or
termination from the Medicaid program, and referral to state and federal
authorities for prosecution. In addition, any person who violates these
laws could be committing a felony punishable by imprisonment for up to
ten years and a fine not to exceed $10,500.
Unlike the FCA, Iowa law does not permit individuals to bring civil
lawsuits to recover monetary damages for violations of the Iowa Medical
Assistance Act. Only the state government may bring such actions.
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Appendix A
IDAHO STATE LAW
The Idaho Public Assistance Law (IPAL) applies to fraud or abuse of funds
in the state Medicaid program (Idaho Code Ann. §§ 56-227, 56-227A and
56-227B.) The IPAL prohibits, in pertinent part: (1) presenting or causing
to be made a false, fictitious, or fraudulent claim for a medical benefit,
(2) presenting or causing to be made a claim for a medical benefit for
services which were not rendered or for items or materials that were not
delivered, and (3) presenting or causing to be made a claim for medical
benefit which misrepresents the type, quality, or quantity of items or
services rendered.
A person or organization that commits violations of the IPAL is liable to
the state for civil penalties including restitution of the amount paid as
a result of the violation plus interest and civil damages equal to three
times the amount of the overstated claim. Additionally, a person or entity
violating the Act has committed a felony criminal act punishable by a fine
or imprisonment.
The Idaho Department of Health and Welfare or the state Attorney
General’s office investigate and prosecute actions under the IPAL.
Unlike the federal False Claims Act, the IPAL does not include a
whistleblower provision allowing individuals with knowledge of IPAL
violations to bring civil lawsuits to recover monetary penalties and
damages.
NEBRASKA STATE LAW
Submitting false claims to the state Medicaid program is illegal under the
Nebraska False Medicaid Claims Act. The statute prohibits, in pertinent
part, (1) knowingly presenting or causing to be presented, to an officer
or employee of the state, a false or fraudulent claim for payment or
approval; (2) knowingly making, using or causing to be made or used, a
false record or statement to obtain payment or approval by the state of a
false or fraudulent claim; (3) conspiring to defraud the state by obtaining
payment or approval by the state of a false or fraudulent claim; (4) having
possession, custody or control of property or money used, or that will
be used, by the state and, intending to defraud the state or willfully
concealing the property, delivering or causing to be delivered, less
property than the amount for which such person receives a certificate
or receipt; (5) buying or receiving as a pledge of an obligation or debt,
public property from any officer or employee of the state knowing that
such officer or employee may not lawfully set or pledge such property.
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Appendix A
NEVADA STATE LAW
Submitting false claims to the state Medicaid program or any state
program is illegal under the Nevada False Claims Act (the “NFCA”).
The statute, Nev. Rev. Stat. § 357.040 prohibits, in pertinent part,
(1) knowingly presenting or causing to be presented a false claim for
payment; (2) knowingly making, using or causing to be made or used, a
false record or statement to obtain payment or approval of a false claim;
(3) conspiring to defraud the state by obtaining payment or approval
by the state of a false claim; (4) being a beneficiary of an inadvertent
submission of a false claim and after discovering the falsity of the claim
fails to disclose the falsity to the state within a reasonable time.
Penalties include a civil penalty of not less than $5,000 or more than
$10,000 for each act, plus three times the amount of damages sustained
by the state because of the act and the costs of a civil action brought
to recover those damages. The Nevada Attorney General is required to
investigate any alleged liability pursuant to the NFCA and may bring a
civil action pursuant to the NFCA against the person liable.
A private person may bring a civil action for a violation of the NFCA
on his own behalf and on account of the state and may be entitled to
receive not less than 15% or more than 50% of any recovery, as the court
determines to be reasonable, plus a reasonable amount for expenses
necessarily incurred, including reasonable costs and attorney’s fees.
In addition, Nevada law imposes penalties on persons making false
claims or representations to secure payment specifically from the state
Medicaid program. Under Nev. Rev. Stat. § 422.540 a person, with the
intent to defraud, commits an offense if (1) he makes a claim or causes
it to be made, knowing the claim to be false, in whole or in part, by
commission or omission; (2) makes or causes to be made a statement
or representation for use in obtaining or seeking to obtain authorization
to provide specific goods or services, knowing the statement or
representation to be false, in whole or in part, by commission or
omission; (3) makes or causes to be made a statement or representation
for use by another in obtaining goods or services pursuant to the state
Medicaid program, knowing the statement or representation to be false,
in whole or in part, by commission or omission; or (4) makes or causes
to be made a statement or representation for use in qualifying as a
provider, knowing the statement or representation to be false, in whole
or in part, by commission or omission.
If the violation involves a claim or value of goods or services greater
than or equal to $250, the offense is a Category D felony punishable
by imprisonment of not less than 1 year or more than 4 years, with a
possible fine of not more than $5,000. If the offense involves less than
$250, the offense is a misdemeanor punishable by imprisonment of not
more than 6 months or by a fine of not more than $1,000, or both.
OREGON STATE LAW
The Oregon False Claims Act (OFCA) applies to fraud or abuse of funds
in the state Medicaid program (Utah Code Ann. §§ 26-20-1 to 25-20-15.)
The OFCA prohibits, in pertinent part: (1) presenting or causing to be
made a false, fictitious, or fraudulent claim for services, (2) presenting or
causing to be made a claim for services which were not rendered, items
or materials that were not delivered or services that were medically
unnecessary, and (3) presenting or causing to be made a claim which
misrepresents the type, quality, or quantity of items or services rendered.
A person or organization that commits violations of the OFCA is liable
to the state for civil penalties including restitution of the amount paid
as a result of the violation, payment of the costs of enforcement, a civil
penalty equal to three times the amount of damages.
Unlike the federal False Claims Act, the OFCA does not include a
whistleblower provision allowing individuals with knowledge of
UFCA violations to bring civil lawsuits to recover monetary penalties
and damages.
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Appendix A
TEXAS STATE LAW
The Texas False Claims Act (TFCA) applies to fraud or abuse of funds in
the state Medicaid program (Tex. Gov’t. Code Ann. §§ 531.101-531.108 and
Tex. Hum. Res. Code Ann. § 32.039) The actions that trigger civil penalties
under the TFCA include: (1) submitting a false claim for payment,
(2) offering or receiving, directly or indirectly, any remuneration for
securing or soliciting a patient, (3) offering or receiving, directly or
indirectly, any remuneration for purchasing, leasing, ordering, or
recommending such purchase, lease or order, of any good, facility,
service, or item for which payment may be made under the state Medicaid
program (or inducing another to do so), (4) offering or receiving, directly
or indirectly, any remuneration for referring an individual to a person for
the furnishing of any item or service for which payment may be made
under the state Medicaid program (or inducing another to do so), and
(5) providing, offering, or receiving an inducement for the purpose of
influencing or being influenced in a decision regarding selection of a
provider or receipt of a good or service under the state Medicaid program,
the use of goods or services provided under the state Medicaid program,
or the inclusion or exclusion of goods or services available under the state
Medicaid program.
A person or organization that commits violations of the TFCA is liable to
the state for restitution of the amount paid as a result of the violation,
payment of an administrative penalty not to exceed twice the amount
paid, and a penalty of $5,000 to $15,000 for each violation that results in
an injury to a disabled person, an elderly person, or a person younger
than 18 years of age. If the violation does not result in such injury, the
law requires a civil penalty of $5,000 to $10,000 for each violation and
damages of two times the amount of the payment.
The TFCA includes a whistleblower provision which allows someone
who reports TFCA violations to the Texas Office of the Inspector General
to receive an award not to exceed five percent of the amount of the
administrative penalty imposed that resulted from the individual’s disclosure.
THE TEXAS MEDICAID FRAUD PREVENTION LAW
The Texas Medicaid Fraud Prevention Law (FPL) applies to fraud by health
care providers participating in the Medicaid Program. (Tex. Hum. Res.
Code Ann. §§ 36.001-36.008; 36.051-36.055; 36.101-36.117; 36.132) Actions
that violate the FPL include: (1) making a false statement or concealing
information that affects the right to a Medicaid benefit or payment, (2)
submitting a claim for Medicaid payment for a product or service rendered
by a person who is not licensed to provide that product or service or
fails to indicate the license of the practitioner who actually performed
the service. (3) submitting a claim for a service or product that has not
been approved by the treating health care practitioner, or (4) conspiring
to defraud the state by obtaining an unauthorized payment from the
Medicaid program or its fiscal agent. The FPL extends to those who have
actual knowledge of the information as well as those who act in deliberate
ignorance or in reckless disregard of the truth or falsity of information.
Penalties include restitution of the value of any Medicaid payment plus
interest, damages of two times the value of the payment, and a civil
penalty of $5,000 to $15,000 for each violation that results in an injury to
a disabled person, an elderly person, or a person younger than 18 years
of age. If the violation does not result in such injury, the law requires a
civil penalty of $5,000 to $10,000 for each violation and damages of two
times the amount of the payment.
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Appendix A
UTAH STATE LAW
The Utah False Claims Act (UFCA) applies to fraud or abuse of funds in
the state Medicaid program (Utah Code Ann. §§ 26-20-1 to 25-20-15.)
The UFCA prohibits, in pertinent part: (1) presenting or causing to be
made a false, fictitious, or fraudulent claim for a medical benefit, (2)
presenting or causing to be made a claim for a medical benefit for
services which were not rendered or for items or materials that were
not delivered, and (3) presenting or causing to be made a claim for
medical benefit which misrepresents the type, quality, or quantity
of items or services rendered.
A person or organization that commits violations of the UFCA is liable
to the state for civil penalties including restitution of the amount paid
as a result of the violation, payment of the costs of enforcement, a civil
penalty equal to three times the amount of damages and not less than
$5,000 or more than $10,000 for violation of the Act. Additionally, a
person violating the Act has committed a criminal act punishable by a
fine or imprisonment. A corporation violating the Act is subject to a fine
not to exceed $20,000 and additional sanctions including advertising
the conviction and disqualifying the officers from serving in a similar
capacity for another company for up to five years.
The Utah Department of Health investigates civil violations of the Act
and refers suspected civil and criminal violations to the state Attorney
General for investigation and prosecution.
Unlike the federal False Claims Act, the UFCA does not include a
whistleblower provision allowing individuals with knowledge of
UFCA violations to bring civil lawsuits to recover monetary penalties
and damages.
WASHINGTON STATE LAW
The Washington Health Care False Claim Act (HCFCA) applies to
fraudulent health care claims made to either a private or government
health care payor (Rev. Code Wash. §§ 48.80.010 – 48.90.900.) Under
the HCFCA it is unlawful to: (1) make or present or cause to be made
or presented to a health care payer a claim for a health care payment
knowing the claim to be false; (2) knowingly present to a health care
payer a claim for a health care payment that falsely represents that
the goods or services were medically necessary in accordance with
professionally accepted standards; (3) knowingly make a false statement
or false representation of a material fact to a health care payer for use in
determining rights to a health care payment; (4) conceal the occurrence
of any event affecting a continued right under a contract, certificate,
or policy of insurance to have a payment made by a health care payer
for a specified health care service; (5) conceal or fail to disclose any
information with intent to obtain a health care payment to which one
is not entitled, or to obtain a health care payment in an amount greater
than that which one is entitled; and (6) for a provider to willfully collect
or attempt to collect an amount from an insured knowing that to be in
violation of an agreement or contract with a health care payor to which
the provider is a party.
A person or organization that violates the HCFCA is guilty of a class
C felony and regulatory and disciplinary agencies will be notified of
the conviction.
Unlike the federal False Claims Act, the HCFCA does not include a
whistleblower provision allowing individuals with knowledge of
HCFCA violations to bring civil lawsuits to recover monetary penalties
and damages.
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Appendix B
ARIZONA
The Arizona Employment Protection Act (A.R.S. § 23-1501) establishes
a claim for termination of employment against an employer who
terminates an employee in retaliation for the employee reporting their
reasonable belief that the employer has violated or will violate Arizona
law and that report is made to either their employer or to an employee of
a public body or political subdivision of Arizona or any agency thereof.
An employee who suffers retaliation can sue and be awarded statutory
or tort damages which may include back pay, plus interest, reinstatement
at the seniority level he or she would have had if not for the retaliation,
and compensation for his or her special damages suffered as a result
of the retaliation, including costs of litigation and reasonable attorney’s
fees. This law does not insulate the employee from disciplinary action if
it turns out that he or she is involved in the reported wrongdoing.
CALIFORNIA
The California False Claims Act (CFCA) similarly protects employees from
retaliation if they, in good faith, report fraud. Employees are protected
against retaliation such as being fired, demoted, suspended, threatened,
harassed, or in any other manner discriminating against an employee as
a result of his or her involvement in a CFCA action. An employee who
suffers retaliation can sue, and may receive up to twice his or her back
pay, plus interest, reinstatement at the seniority level he or she would
have had if not for the retaliation, and compensation for his or her costs
or damages, and punitive damages if appropriate. This law does not
insulate the employee from disciplinary action if it turns out that he or
she is involved in the reported wrongdoing.
The California Health and Safety Code (Cal. Health & Safety Code
§ 1278.5) also prohibits health facilities from retaliating or discrimination
against a patient, an employee or any other member of its staff
because that person has presented or initiated a complaint, or initiated,
participated, or cooperated in an investigation or proceeding of a
government entity relating to the quality of care, services, or conditions
of the facility or presented a grievance, complaint, or report to an
entity or agency responsible for accrediting or evaluating the facility.
An employee who suffers such retaliation or discrimination can sue,
and may be entitled reinstatement, reimbursement of lost wages and
work benefits caused by the act of the employer, or to any remedy
deemed warranted by the court. A prevailing employee may also receive
reimbursement for his or her legal costs in pursuing the case. This law
does not insulate the employee from disciplinary action if it turns out that
he or she is involved in the reported wrongdoing.
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Appendix B
COLORADO
The Colorado Healthcare Workers Protection Law (Colo. Rev. Stat. § 8-2-
123) also protects certified, registered or licensed employees who make
good faith reports or disclosures concerning patient care or safety. The
Colorado Healthcare Workers Protection Law requires that the employee
first utilize the employer’s internal reporting procedures before making a
report to a government agency to provide an opportunity to correct the
improper conduct.
In addition, Colo. Rev. Stat. §§ 26-3.1-102(6) and 26-3.1-204(6) forbid
discriminatory, or retaliatory action against any person who, in good
faith, reports of suspected mistreatment or neglect or known or
suspected financial exploitation of an at-risk adult. Furthermore, the
Facility’s Non-Retaliation Policy protects all employees who make any
compliance complaints, including good faith reports or disclosures
concerning patient care, safety or because of their participation in any
investigatory proceeding.
IDAHO
Idaho has not enacted similar legislation to prohibit private employers
from taking disciplinary or retaliatory action against an employee who
makes a lawful report of a violation of state or federal law. However,
the Facility’s policies require its employees, contractors and agents
with knowledge of potential fraud or violations of federal or state law to
report such conduct. Retaliation for making a truthful report of suspected
unlawful activities is strictly prohibited.
NEBRASKA
The Nebraska False Medicaid Claims Act provides whistleblower
protections similar to the federal False Claims Act.
NEVADA
The NFCA provides whistleblower protections similar to the False
Claims Act.
OREGON
Oregon law prohibits employers from retaliating, discriminating
or harassing employees because of their good faith disclosure of
information about a violation of a law or rule or a violation that poses
a risk to public or patient health, safety or welfare, or their refusal to
assist employers in activity that the employee reasonably believes is
in violation of a law or rule. Oregon law also prohibits employers from
discriminating against any employee who in good faith reports criminal
activity or who cooperates with law enforcement in an investigation
or at trial. These Oregon employee protection laws provide for both
administrative and civil remedies which may include monetary awards
for actual damages and punitive damages.
In addition, the Oregon Hospital Anti-Retaliation Law, unlike the other
laws, requires any nursing staff to notify his/her employer in writing
of any suspected illegal activity, policy or practice before disclosing it
to the appropriate government agency. The purpose of this particular
requirement is to give the employer a reasonable opportunity to correct
the activity, policy or practice. This notice requirement does not apply to
disclosures that the employee reasonably believes to be a crime or where
the employee reasonably fears physical harm as a result of the disclosure
or where an emergency exists.
These laws do not insulate an employee from disciplinary action if it
turns out that he or she is involved in the reported wrongdoing.
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TEXAS
The FPL, mentioned above, includes a whistleblower provision, which
allows someone with actual knowledge of alleged FPL violations to file
suit on the state or local government’s behalf. After the whistleblower
files suit, the case is kept confidential while the State Attorney General
conducts an investigation to determine whether it has merit. The state
may decide to take over the case. If so, the whistleblower receives
between 15 and 25 percent of any recovery depending on his or her
contribution to the case. If the state does not take over the case, the
whistleblower receives between 25 and 30 percent of any recovery.
WASHINGTON
Washington has also enacted legislation protecting whistleblowers
who make good faith reports to the government about suspected
abandonment, abuse, financial exploitation or neglect of a vulnerable
adult from workplace reprisal or retaliatory action. (Rev. Code Wash.
§§ 74.34.180.)
Furthermore, the Facility’s Non-Retaliation Policy protects all employees
who make any compliance complaints, including good faith reports
or disclosures concerning patient care, safety or because of their
participation in any investigatory proceeding.
Appendix B
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