This article is more than 5 years old. Information may no longer be current.
Consider use of employee certification as false claims risk management tool
Click Here to Manage Email Alerts
Physicians are rightly worried about False Claims Act lawsuits. With a minimum penalty of $5,500 per claim and employees who might receive up to 30% of the government’s recovery, it is reasonable to worry about whether an employee may become a whistleblower. The best risk management option may be a certification in which employees either verify that they do not have any current compliance concerns or they describe their worries.
Some physicians have considered asking employees to promise not to bring a false claims suit. I discourage this for two reasons. First, the legality of such a promise is highly questionable. Most courts have concluded that public policy would render any promise not to report fraud as void. Some courts have, however, allowed individuals to waive their right to receive any payment under the False Claims Act. In other words, the individual can bring a lawsuit, but won’t receive any money if the suit is successful. Therefore it can be worth worthwhile having language that requires employees to report concerns internally, and notes includes a waiver of the relator’s share of any recovery. Second, I don’t like the implied message, which sounds like “we’re worried we may be doing something wrong, so promise you won’t turn us in.”
Confirm compliance issues
A far better approach is to have a form asking employees to confirm that they are not aware of compliance issues, or, if they do have some compliance concerns, permit them to report the concerns. The form has several advantages. Obviously, it is a tool for uncovering compliance concerns. It also promotes a culture of compliance, emphasizing that the organization wants to detect problems.
I have seen many situations where an employee has a revisionist view of history, and asserts that he or she has reported a concern for years and it has been ignored for years. However, in reality there is no evidence to suggest that the employee ever raised the issue. Having a signed certification where the individual did not report the issue makes it clear that even if the employee has had the worry for a long time, when given the opportunity to do so, he or she didn’t call the issue to the organization’s attention.
Be prepared
Asking employees to sign the form is likely to result in a burst of compliance issues, real and imagined, coming to the surface. Obviously, you shouldn’t circulate the form unless you are prepared to take the time to fully investigate the concerns that follow. Many of the concerns will be things that might be characterized as “nuisance emotional frustration” issues rather than true compliance topics. It is likely you will get reports like “Johnny spends all day talking on the phone with his significant other, not working.” But any effective compliance process will generate false alarms. Making it easy for people to report concerns, and establishing a clear record of those employees who have no concerns, can be a powerful tool if you ever need to convince the Office of Inspector General that you have an effective compliance plan.
If you would like to see a sample of a form, feel free to email at dglaser@fredlaw.com. Please include “certification” in the subject line.
We will discuss this topic and other risk management strategies during the Practice Management sessions at Orthopedics Today 2014 in Hawaii. I hope you can join us.