Section 6032 of the Federal Deficit Reduction Act of 2005 ("DRA") requires entities that make or receive annual Medicaid payments of $5 million or more to provide in written policies applicable to employees, contractors and agents detailed information about the False Claims Act, any state laws that pertain to civil or criminal penalties for making false claims and statements, and whistleblower protection. As a requirement for Medicaid payment, those entities must establish written policies that:
- provide detailed information about the federal False Claims Act;
- provide detailed information about any applicable state false claims act, and whistleblower protections under such laws;
- explain the role of these laws in preventing and detecting fraud, waste, and abuse in federal health care programs;
- include detailed provisions regarding the entity's policies and procedures for detecting and preventing fraud, waste and abuse; and
- revise employee handbooks to include the information above and an explanation of any whistleblower protection available to employees.
The language of Section 6032 is sparse and ambiguous, and there currently is no published regulatory guidance. Some of the many unanswered questions include:
Does the definition of "make or receive" Medicaid payments apply to entities such as billing companies, PHOs, certain Medicaid managed care organizations, etc.?
In addition to federal and state qui tam statutes, must detailed information also be provided on the myriad of other federal and state statutes concerning false statements, government payments, claims procedures, and benefit fraud?
What level of detail is required in the descriptions of the federal and state laws?
Must entities disseminate the policies in any specific manner? Are entities required to include the DRA information in employee educational programs?
Despite the number of questions for which there is no clear answer, as of January 1, 2007, providers must comply with Section 6032. Until specific guidance is issued, providers will need to work with legal counsel to establish policies. Foley & Lardner LLP has assembled a team of experienced attorneys who can provide practical advice for complying with the DRA consistent with the culture and specific needs of the organization.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
