Welcome to our new website!
March 21, 2022

Let's Talk Legal

What happens if the worst-case scenario transpires, and your facility is sued under The False Claims Act?

Attorney Jana Volante Walshak, a partner at Fox Rothschild LLP, walks us through this taboo subject and explains how such a situation can be addressed and prevented.


Jana has represented many healthcare clients and serves as the outside general counsel for a large healthcare entity. 

The False Claims Act was created to address fraud being perpetrated against the government. To free up government time and resources, private individuals referred to as relators were permitted to bring those suits. 

Relators have to be an original source with inside information. In healthcare-related cases, they are often disgruntled, former employees or family members. 

Jana has handled many false claims cases and asserts that the most important first step in making sure that a facility is aware and compliant with the regulations under the False Claims Act is to install a Comprehensive Corporate Compliance Program.

This type of program can be drawn up by a lawyer and details all the regulations that a particular facility will need to follow and what they can do to follow them to avoid causing claims to be made against them.

Common claims in a healthcare setting often involve billing for services that weren’t provided or are insufficient. 

If an operator or administrator catches wind of this, they should investigate immediately and if a violation is found make a voluntary disclosure to the government and pay any difference that might be owed. 

In a worse scenario, the government will find out about the violation first and send a Civil Investigative Demand requesting the production of certain documents or an inner view of an employee. 

In this situation, the facility should act fast to hire experienced counsel and contact the government to negotiate a settlement rather than being taken to court. 

Fox Rothchild has offices all over the country and can provide all sorts of services to healthcare facilities in the areas of corporate employment, real estate, compliance services for if a facility is involved in litigation or receives a subpoena or Civil Investigative Demand.  

 

LEARN MORE ABOUT JANA AND FOX ROTHCHILD LLP

 

RELATED EPISODES

_________________________________

Sponsor an episode of The Nursing Home Podcast for super targeted exposure to senior care decision-makers! 

Tell me more!

Transcript

00:02.937 --> 00:06.067
I think you have to be really proactive about it,

00:06.115 --> 00:10.747
really aware of what regulations apply to you,

00:10.930 --> 00:13.407
and monitoring,

00:13.497 --> 00:16.872
actively monitoring whether you're in compliance with the statutes

00:16.917 --> 00:17.912
and regulations.

00:30.037 --> 00:33.972
Welcome to the nursing home podcast. Your Goto source

00:34.017 --> 00:37.287
for professional insights in the long term care industry.

00:37.437 --> 00:40.842
Hear from leaders and experts as they share current and practical

00:40.902 --> 00:44.517
insights to help make the most of your day. I'm the Longterm care financial

00:44.577 --> 00:48.492
specialist. What that means is I help people plan for the inevitable.

00:48.627 --> 00:52.102
Nobody wants to think about getting old, but it's possible that someday we might

00:52.120 --> 00:56.637
need a little bit of care. Here's your host. Nursing home Administrator Turnpodcaster

00:56.712 --> 00:58.412
Schmoel, Septimash.

01:00.337 --> 01:04.700
Okay, we're alive. Okay, so welcome

01:05.287 --> 01:09.052
to another live recording of the Nursing Home

01:09.145 --> 01:13.327
Podcast, the podcast that was created to answer

01:13.495 --> 01:17.077
the questions that were embarrassed to ask or don't know where to find

01:17.095 --> 01:21.177
the answers to. I was definitely that person who didn't

01:21.207 --> 01:25.102
know the answer to a lot of these questions, and I'm very happy to

01:25.195 --> 01:29.092
be able to provide this forum in order to really

01:29.140 --> 01:32.622
directly answer some of these questions. So in today's

01:32.667 --> 01:36.747
podcast, we're going to meet Jana Velante

01:36.792 --> 01:40.347
Walshack. Jana is a partner in the law firm

01:40.392 --> 01:43.977
of Fox Roth Trial in Pittsburgh, Pennsylvania. Janna works primarily

01:44.007 --> 01:48.147
in the areas of regulatory compliance, white collar criminal defense,

01:48.267 --> 01:51.672
commercial litigation, and works with many healthcare

01:51.717 --> 01:54.887
clients. So, Jenna, welcome to the nursing home podcast.

01:55.312 --> 01:57.425
Thank you. It's a pleasure to be here.

01:58.612 --> 02:01.702
Well, thank you for taking some time to be here with us.

02:01.795 --> 02:05.032
And I'm going to jump actually before we jump right into it, if you don't

02:05.035 --> 02:08.472
mind, just take maybe 30 seconds or a minute. Just let our listeners

02:08.517 --> 02:11.722
just get to know you a little bit better about how you got to doing

02:11.755 --> 02:15.262
what you're doing right now and then we'll jump into the content

02:15.325 --> 02:18.200
of the show. Absolutely.

02:18.862 --> 02:22.792
So I started my career in law about

02:22.840 --> 02:26.527
eleven years ago, and I started as

02:26.620 --> 02:29.922
a litigator handling commercial lawsuits

02:29.967 --> 02:33.207
and also whitecollar criminal defense.

02:33.297 --> 02:35.802
So, federal grand jury,

02:35.832 --> 02:39.477
subpoenas, actions for fraud,

02:39.582 --> 02:42.125
things like that. And over the years,

02:42.712 --> 02:46.692
I began to represent more and more healthcare

02:46.752 --> 02:50.707
clients and eventually I also began to serve as the outside

02:50.785 --> 02:53.817
general counsel for a large healthcare client.

02:53.952 --> 02:57.442
And I think that sort of brings us up to date.

02:57.490 --> 03:00.622
I'm planning on talking about the False Claims Act,

03:00.655 --> 03:04.422
and I've certainly handled a number of those types of cases

03:04.467 --> 03:07.282
over the years. Got it? Got it.

03:07.435 --> 03:10.987
Okay, so I think just to get us started,

03:11.050 --> 03:14.557
just to paint the background here and just thank you

03:14.560 --> 03:18.362
to those who are watching live as you on LinkedIn. It's definitely appreciated.

03:20.137 --> 03:23.602
Excuse me. There we

03:23.620 --> 03:27.202
have it. So questions like this. So there are many people who enter the

03:27.220 --> 03:31.117
healthcare space, specifically nursing homes, and their goal is

03:31.240 --> 03:34.807
they want to provide outstanding care to their residents. They want

03:34.810 --> 03:38.362
to provide a place where their staff can make an honorable living

03:38.425 --> 03:41.572
doing something, making a difference, and they want to make

03:41.605 --> 03:44.827
sure that they can do all of this at a profit for those that are

03:44.920 --> 03:48.387
the nonprofit facilities, the for profit facilities.

03:48.537 --> 03:52.267
And at the same time, they want to make sure that they do not run

03:52.315 --> 03:56.377
into the legal challenges that we

03:56.395 --> 03:59.727
sometimes see in the news. They want to stay out of court,

03:59.757 --> 04:02.872
and like we said before, they certainly want to stay out of jail, but they

04:02.905 --> 04:04.637
know that these are serious.

04:05.812 --> 04:08.952
It's a complex little microcosm of society

04:09.057 --> 04:12.387
in these types of inpatient health care communities,

04:12.537 --> 04:15.587
whether it's a nursing home or hospital.

04:17.587 --> 04:21.125
So I guess the question would be, what are some of the

04:21.637 --> 04:25.850
most common pitfalls that maybe you've seen or heard about work with,

04:26.212 --> 04:30.037
that we can avoid? And then I also want to get to

04:30.175 --> 04:33.727
when it does happen, sometimes just knowing worst case

04:33.745 --> 04:37.227
scenario helps you better prepare for it. So what is the worst

04:37.257 --> 04:39.997
case scenario, and how do you deal with that? But let's start with the first

04:40.030 --> 04:44.127
thing. What are some things to avoid regards

04:44.157 --> 04:45.650
to the false claims act?

04:47.212 --> 04:51.232
Well, I like to

04:51.385 --> 04:55.147
maybe discuss things to do affirmative things

04:55.180 --> 04:58.925
that you can do, proactive things that you can do to try to avoid it

05:00.337 --> 05:04.042
rather than kind of posing it as a pitfall. Okay.

05:04.165 --> 05:08.122
I think the most important thing is to

05:08.155 --> 05:11.687
comply with applicable federal and state regulations.

05:12.412 --> 05:16.467
So I think the type of operators and administrators

05:16.527 --> 05:20.452
you were talking about who want to provide

05:20.545 --> 05:23.300
good quality patient care,

05:24.712 --> 05:28.417
want to help their residents, help the community, of course,

05:28.465 --> 05:31.977
have every intention, I think, of following federal

05:32.007 --> 05:35.797
and state regulations. But I think you

05:35.830 --> 05:40.192
have to be really proactive about it, really aware of

05:40.390 --> 05:43.072
what regulations apply to you,

05:43.255 --> 05:47.172
and actively monitoring

05:47.217 --> 05:50.237
whether you're in compliance with those statutes and regulations.

05:50.887 --> 05:54.922
One way to do that is we recommend

05:55.105 --> 05:58.842
comprehensive corporate compliance programs and policies

05:58.902 --> 06:02.347
that will implement those programs. So having someone

06:02.530 --> 06:05.752
knowledgeable, usually a lawyer, draw up a

06:05.770 --> 06:10.042
program for you that includes sort of all

06:10.090 --> 06:13.597
of the regulations you need to follow and what

06:13.630 --> 06:17.092
you need to do to follow them. I think having

06:17.140 --> 06:20.857
a comprehensive document like that is really helpful, and then having

06:20.935 --> 06:24.847
policies that you can give to your staff that they

06:24.880 --> 06:28.692
can follow so that everyone's in compliance

06:28.752 --> 06:32.502
with the corporate compliance program. One thing about a corporate

06:32.532 --> 06:36.247
compliance program, if you would end up in court, in particular,

06:36.355 --> 06:40.047
if you would end up being sued under the false claims

06:40.092 --> 06:45.132
act or indicted

06:45.222 --> 06:48.072
criminally or under criminal investigation,

06:48.267 --> 06:51.582
having a corporate compliance program is really helpful,

06:51.747 --> 06:54.442
but it's only helpful if you follow it.

06:54.640 --> 06:57.697
It's really bad to have a program like

06:57.730 --> 07:01.027
this and to not follow it, because that sort

07:01.045 --> 07:04.852
of has the opposite effect. It shows that you know what you should be doing,

07:04.945 --> 07:08.377
and you're not doing it. So hold on.

07:08.395 --> 07:12.052
Before we go further, let's just

07:12.070 --> 07:14.450
back up. What is the false claims act?

07:15.187 --> 07:18.727
So the False Claims Act has a long history.

07:18.820 --> 07:22.447
It was actually enacted under President Lincoln back during

07:22.480 --> 07:26.422
the Civil War. And the idea was to

07:26.455 --> 07:30.125
address fraud that was being perpetrated against the government

07:30.562 --> 07:34.542
and to sort of free up government resources.

07:34.677 --> 07:38.762
They let private individuals bring those suits,

07:39.262 --> 07:43.487
and under the False Claims Act, those private individuals are called relators.

07:44.137 --> 07:47.667
So I understand. And to simplify

07:47.727 --> 07:49.862
it, that means Snitchers,

07:52.162 --> 07:56.647
pretty much. I mean, a relater has

07:56.680 --> 08:00.012
to be someone who is an original source.

08:00.162 --> 08:03.577
So they have to show that they have some sort

08:03.595 --> 08:07.842
of inside information. Which is a whistleblower.

08:07.977 --> 08:11.917
Exactly, a whistleblower. And that is kind of one

08:11.965 --> 08:15.277
basis, if you're suited under the False Claims Act to try to get the

08:15.295 --> 08:18.847
suit thrown out, is by showing that the person who brought it,

08:18.880 --> 08:22.850
the relator, is not actually an original source of the information.

08:23.587 --> 08:28.707
But very often these people are disgruntled

08:28.797 --> 08:32.842
employees or former employees. They could be maybe the

08:32.890 --> 08:35.612
family members of a patient in your facility.

08:36.562 --> 08:40.122
So they're the ones who initiate the claim,

08:40.317 --> 08:44.017
but it's actually a claim being brought on behalf of the federal government.

08:44.215 --> 08:47.667
Okay, now let's just focus on this for a minute.

08:47.802 --> 08:51.457
So the False Claims Act is protecting government

08:51.535 --> 08:54.512
resources from being used and spent,

08:55.462 --> 08:59.362
I guess, in ways that don't I don't know, in ways

08:59.425 --> 09:03.112
that it shouldn't be spent. Or we're just saying, well, I'm a family

09:03.175 --> 09:06.847
member, or let's say I'm a disgruntled employee, I get fired for

09:06.955 --> 09:10.507
whatever it is, not doing my job. Now I'm upset. So I

09:10.585 --> 09:14.022
go online and I find out from other disgruntled employees

09:14.142 --> 09:18.127
in the disgruntled employees Facebook group or whatever it

09:18.145 --> 09:22.267
is, that they share their information. And I know that I have this massive power

09:22.390 --> 09:26.600
to act on behalf of the federal government to go and get

09:27.112 --> 09:30.417
my previous employers into some serious, serious trouble.

09:30.552 --> 09:33.727
So what exactly what type of claim what am I

09:33.745 --> 09:37.100
saying? They billed for services that they didn't provide.

09:37.837 --> 09:41.422
Maybe help us there. What you just

09:41.455 --> 09:45.102
said is a very common claim under the False Claims

09:45.132 --> 09:48.200
Act that you're billing for services that you didn't provide.

09:49.087 --> 09:53.112
There's another sort of more recent theory called the Worthless

09:53.187 --> 09:56.892
Services Doctrine, where a relator

09:56.952 --> 10:01.187
might claim that the services being provided were so substandard,

10:01.612 --> 10:04.822
they were so grossly negligent, that there were

10:04.855 --> 10:08.377
effectively no services being provided, and so

10:08.395 --> 10:10.700
that you were billing for worthless services.

10:12.187 --> 10:15.732
Okay, so that I can understand. In other words, you have to be somewhat educated

10:15.822 --> 10:19.552
in what's false claims and what's not false claims to make

10:19.570 --> 10:22.957
such a claim. So if I'm a CNA, and I

10:22.960 --> 10:26.902
was there and I saw that maybe I was overwhelmed at the number of

10:26.920 --> 10:29.377
residents that I had on my shift, or I didn't like the person I was

10:29.395 --> 10:33.812
reporting to where I terminated call outs, and as a result I was terminated.

10:34.312 --> 10:37.852
I don't know, typical anyone in the building,

10:37.945 --> 10:41.452
sometimes even the administrator, unless you're like the MDS, coordinator or something like that.

10:41.545 --> 10:44.992
You don't know what billing is going on.

10:45.115 --> 10:48.577
You can just assume, I guess, that whatever services are being provided are

10:48.595 --> 10:52.282
being billed to someone, which is not always the government. Right. It could be

10:52.285 --> 10:55.152
a private insurance as well. It could be a private pay, and then it wouldn't

10:55.182 --> 10:59.332
be relevant, but right, I think. Is that correct? You're right.

10:59.485 --> 11:02.162
And just like any other type of lawsuit,

11:02.512 --> 11:06.812
just because the suit is brought doesn't necessarily mean that it's meritorious.

11:07.837 --> 11:11.142
So just because a former

11:11.202 --> 11:14.632
employee, for example, goes and finds a

11:14.635 --> 11:17.947
lawyer to help them bring this suit, and they initiate this

11:17.980 --> 11:21.427
suit under the false claims act, which is often called a key tam, a key

11:21.445 --> 11:24.832
tam action. Just because they initiate a

11:24.835 --> 11:29.967
key tam action doesn't mean that it's meritorious,

11:30.027 --> 11:33.262
but you still nonetheless have to defend it.

11:33.400 --> 11:37.627
Okay? And maybe what they're claiming is that

11:37.795 --> 11:41.947
paperwork that had to be submitted to the government in order for

11:42.130 --> 11:45.817
the facility to be paid, they might be alleging that that

11:45.865 --> 11:49.662
paperwork was falsified, for instance. And that can be another basis

11:49.812 --> 11:52.175
for a suit under the False Claims Act.

11:53.062 --> 11:57.437
So basically, just to bring it down to my language,

11:58.162 --> 12:02.082
it would mean that they're saying, let's say that the MDS coordinator

12:02.097 --> 12:05.557
is just putting in random numbers or the coding in

12:05.635 --> 12:09.112
the nurse's notes. They're putting in what they know or what they were told,

12:09.175 --> 12:13.362
let's say by some outside company or the internal

12:13.437 --> 12:16.627
experts, that this is going to result in a higher

12:16.720 --> 12:20.122
payout. So therefore make sure to write this in the

12:20.155 --> 12:24.022
notes. Exactly. Up coding is

12:24.055 --> 12:27.477
another commonly used basis for a False

12:27.507 --> 12:31.132
Claims Acts suit. Okay? Upcoming means that they're coding someone

12:31.210 --> 12:34.402
as more clinically dependent than they

12:34.420 --> 12:39.712
really are. Is that what it means that they're asking

12:39.775 --> 12:43.597
for payment for a higher level of

12:43.630 --> 12:46.787
service than was actually provided?

12:50.437 --> 12:56.322
Okay. Is there any room assuming

12:56.367 --> 12:58.325
I'm going to jump around here a little bit?

12:59.287 --> 13:03.742
Let's say someone that your kiss you just said, and it was done not

13:03.790 --> 13:07.507
maliciously to steal more money from the government, but because

13:07.585 --> 13:11.272
somebody thought that that's the right way to document, or because they

13:11.305 --> 13:14.967
misinterpreted someone else's documentation and genuinely

13:15.027 --> 13:18.172
thought that this is really

13:18.280 --> 13:22.752
a reflection of the facts. Does that have any impact

13:22.857 --> 13:26.547
in the suit? And just before you respond, the importance

13:26.592 --> 13:30.847
of this question is, does every person have to be scared to

13:30.880 --> 13:32.975
do what they think is actually correct?

13:34.462 --> 13:38.075
So I think there's a two part answer there. Okay?

13:40.162 --> 13:43.447
For a claim under the

13:43.480 --> 13:46.507
False Claims Act to have merit, there needs to

13:46.510 --> 13:49.852
be C enter, which means knowledge. There needs to

13:49.870 --> 13:53.537
be knowledge that the claim is false

13:54.037 --> 13:57.867
or some sort of reckless disregard

13:57.927 --> 14:01.102
for the truth or the falsity of what's submitted to the

14:01.120 --> 14:06.067
government. Okay? But one

14:06.115 --> 14:09.650
thing that I would recommend is

14:11.137 --> 14:14.750
if a facility, if an operator catches wind

14:15.412 --> 14:19.647
that someone's making such allegations, to immediately

14:19.767 --> 14:23.697
investigate, to make sure for instance,

14:23.742 --> 14:27.812
that the services that were billed for were actually provided

14:28.162 --> 14:31.047
to immediately investigate complaints,

14:31.167 --> 14:34.122
whether they're coming from patients,

14:34.317 --> 14:37.197
family members of patients staff.

14:37.392 --> 14:41.317
And if you do find that those complaints have

14:41.365 --> 14:45.217
merit to correct any

14:45.265 --> 14:48.912
misconduct that happened and to try to adjust policies

14:48.987 --> 14:51.050
to make sure that it doesn't happen again.

14:53.512 --> 14:56.872
Okay, so is that

14:56.905 --> 15:01.037
in an effort to demonstrate that you're taking it seriously?

15:02.287 --> 15:06.052
Absolutely. Could that in an effort to

15:06.070 --> 15:09.847
demonstrate you're taking it seriously. And if you do find that

15:09.880 --> 15:13.867
there was a violation of the law, one thing that you can do

15:14.065 --> 15:17.752
and I think it's always wise to consult counsel first, but one thing that

15:17.770 --> 15:21.547
you can do is make a voluntary disclosure to the government to

15:21.580 --> 15:25.267
say, we investigated this. We found

15:25.315 --> 15:29.182
that there was a violation, we fixed it.

15:29.335 --> 15:33.012
And to the extent that there's any financial damages,

15:33.087 --> 15:36.727
as in any overpayment, that maybe the government

15:36.820 --> 15:41.547
paid more than they were supposed to to the facility returning

15:41.592 --> 15:43.175
that money to the government.

15:45.262 --> 15:49.342
Okay, now is there a liability by the

15:49.390 --> 15:53.397
facility? If they're going to start conducting

15:53.442 --> 15:57.007
their own internal investigation, that's going

15:57.010 --> 16:00.637
to be an admission of guilt by the very fact that they start taking

16:00.700 --> 16:02.762
it that level of seriousness.

16:04.837 --> 16:09.097
I wouldn't be concerned about that. I think just

16:09.130 --> 16:12.800
like having a good corporate compliance program and following it,

16:13.462 --> 16:16.852
investigating complaints, and then if

16:16.870 --> 16:20.197
you find that those complaints are valid, attempting to

16:20.230 --> 16:24.217
fix the problem I think is actually evidence of good

16:24.265 --> 16:26.600
faith that you're trying to do the right thing.

16:28.462 --> 16:32.087
OK, so now getting back to my disgruntled employee,

16:32.962 --> 16:36.597
they may know this and they may even be told by their attorney

16:36.642 --> 16:39.802
that their claim is going to go nowhere, but they're going to

16:39.820 --> 16:43.977
have to hire the facilities, can have to bring on some a legal

16:44.007 --> 16:47.322
team in order to defend themselves against this claim.

16:47.517 --> 16:50.767
And that itself is

16:50.815 --> 16:53.932
going to be a significant impact on the

16:53.935 --> 16:57.472
facility. So I don't want to give anyone any

16:57.505 --> 17:01.327
bad ideas here, but I'm just thinking if

17:01.345 --> 17:04.552
you're an operator, you want to make sure this is not

17:04.570 --> 17:07.992
legal advice, this is just operator to operator.

17:08.052 --> 17:11.347
I guess that you want to make sure that if there are these issues that

17:11.380 --> 17:15.052
you get to them before they have a chance. Just like with the Department of

17:15.070 --> 17:19.132
Public Health, if you have a family member that's upset about anything before

17:19.210 --> 17:23.587
they start going to Department of Public Health and just saying all the buzzwords that

17:23.725 --> 17:27.112
they know will get the Department of Public Health in the building and

17:27.175 --> 17:30.427
have them sniffing. If you reach out to them first and have a conversation with

17:30.445 --> 17:33.547
them and get to the root of why they're upset, which has nothing to do

17:33.580 --> 17:37.072
with whatever they're alleging is going on in the facility, many times

17:37.105 --> 17:40.297
you'll save yourself. It could be months of work,

17:40.330 --> 17:43.147
it could be tens of thousands of dollars or more.

17:43.330 --> 17:47.742
By doing that, So I mean that's just from an employee management

17:47.877 --> 17:51.727
standpoint. But let's go to the next step. Let's say you have someone in

17:51.745 --> 17:55.262
a facility, they're false find documentation.

17:56.062 --> 18:00.022
They're not sitting there in a black coat and

18:00.055 --> 18:03.432
sunglasses in a dark corner of the facility, maybe sitting

18:03.447 --> 18:06.967
in a regular office filling out their MDS or maybe an

18:07.015 --> 18:10.407
owner or an operator administrator telling CNN's

18:10.422 --> 18:14.392
how to document or anything like that. Let's assume that it's true

18:14.515 --> 18:18.202
and it goes to court and of

18:18.220 --> 18:21.622
course a good legal team will try to work on the case

18:21.655 --> 18:25.197
for them. I just want to get to worst case scenario.

18:25.392 --> 18:26.450
What happens?

18:28.687 --> 18:33.997
Well, there's, I guess a whole process with

18:34.030 --> 18:38.257
regard to the False Claims Act, and we can certainly get to

18:38.410 --> 18:42.350
worst case scenario. I will say, if you have that person

18:42.937 --> 18:46.775
kind of locked in their office doing things that they shouldn't be doing,

18:47.512 --> 18:51.322
it's again. Helpful to be able to show that they're acting against

18:51.430 --> 18:55.072
policy and that they should have known. You know,

18:55.105 --> 18:58.642
based on training, for instance, that what they were doing

18:58.690 --> 19:02.187
was against policy and that you, as a facility,

19:02.262 --> 19:06.777
weren't in any way condoning this condoning

19:06.882 --> 19:10.037
what they were doing. But worst case scenario,

19:11.212 --> 19:14.722
maybe you don't find out on your own that this is

19:14.755 --> 19:18.352
happening, then the

19:18.370 --> 19:22.002
way you might find out is through a civil investigative demand,

19:22.107 --> 19:25.602
which is the civil equivalent of a subpoena.

19:25.707 --> 19:29.782
It's a document that you get from the government ordering you to

19:29.860 --> 19:33.262
produce certain documents. And sometimes

19:33.325 --> 19:38.872
it could also ask for an

19:38.905 --> 19:42.222
interview of an employee,

19:42.267 --> 19:45.627
for instance. When you receive that civil

19:45.657 --> 19:48.800
investigative demand, I think it's important to

19:49.162 --> 19:52.702
hire experienced counsel who can help you respond to it,

19:52.795 --> 19:56.547
but who can also reach out to the government and find out what's

19:56.592 --> 19:59.912
going on, what are they investigating,

20:01.537 --> 20:05.002
and hopefully they can help you then. Strategize so you don't get to

20:05.020 --> 20:08.602
worst case scenario. Okay, go ahead.

20:08.770 --> 20:11.587
No, so just getting back to what you said in the beginning. So by having

20:11.650 --> 20:16.775
that compliance program, having that corporate compliance program working

20:18.712 --> 20:22.777
the way that it's being set up properly, that will

20:22.870 --> 20:26.225
affect, like you said,

20:26.737 --> 20:30.022
the lone wolf, so to speak, that you have this

20:30.055 --> 20:34.475
person. Let's assume that this person is

20:35.137 --> 20:39.217
acting alone and this person does end up not just acting alone, but they're doing

20:39.415 --> 20:43.072
what they're not supposed to be doing. But you're showing here's the

20:43.105 --> 20:47.122
sign in sheets that, you know, he or she was educated on

20:47.155 --> 20:50.407
our corporate compliance policy. And here's the policy. Here's where in

20:50.410 --> 20:54.832
the policy it says that what she's doing does not comply with the policy at

20:54.835 --> 20:58.177
least that much. You'd be in a much better place right now. I'm just

20:58.195 --> 21:01.927
connecting the dots. I'll tell you why. Because if I could

21:01.945 --> 21:05.687
just say things the way they are, many times people feel like the corporate compliance

21:06.262 --> 21:10.057
program or any of these types of programs that are

21:10.135 --> 21:15.877
pretty in binders is that

21:15.970 --> 21:19.402
they're not connected to reality and what's the purpose and how many

21:19.420 --> 21:22.775
people in the facility actually read through the entire binder and

21:23.212 --> 21:26.902
how connected. And it's not just corporate compliance. You can

21:26.920 --> 21:32.797
say the same thing about clinical operations. And if

21:32.830 --> 21:35.922
there's a fire in the building, are we going to start pulling out the binder?

21:36.117 --> 21:39.607
There's supposed to be training, it's supposed to be all these different things. And it

21:39.610 --> 21:42.575
is definitely a place to reference information.

21:44.062 --> 21:47.347
Right. I think it's a great first step to have your

21:47.380 --> 21:51.157
staff sign off that they've read this, but I think it's certainly

21:51.235 --> 21:55.100
not enough. I think the training

21:56.062 --> 21:59.872
is really, really important and

21:59.980 --> 22:04.147
policies that kind of take

22:04.255 --> 22:08.162
what's in the corporate compliance program and make it practical,

22:08.587 --> 22:12.127
make it something that the staff can follow in

22:12.145 --> 22:13.712
their day to day duties.

22:15.712 --> 22:19.522
OK, so just jumping back to where we

22:19.555 --> 22:23.197
were. So someone gets this False Claims Act,

22:23.305 --> 22:27.127
we find that someone is doing it maliciously. So having at

22:27.145 --> 22:31.412
least from our initial internal investigation,

22:32.812 --> 22:35.917
bringing in a legal team that has the ability to A,

22:36.040 --> 22:39.737
respond, and B, may have the right connections

22:40.387 --> 22:43.897
to be able to find out what is it that we're really looking at

22:43.930 --> 22:47.617
beyond just the document that we've received. Obviously, that can be

22:47.740 --> 22:51.277
extremely helpful. What would be the next step then? Just like,

22:51.295 --> 22:55.087
walk us through the process? I think the next step

22:55.150 --> 22:58.477
is if an

22:58.495 --> 23:02.077
internal investigation hasn't been done already, to sort of get to

23:02.095 --> 23:05.107
the bottom internally of what's going on.

23:05.260 --> 23:08.750
Council may want to assist with that,

23:09.412 --> 23:13.175
but next step is contacting the government.

23:14.587 --> 23:17.602
And the government has a

23:17.620 --> 23:21.637
choice to intervene in a false Claims that suit. So it started by

23:21.700 --> 23:25.252
a private party, but the government can sort of take over the

23:25.270 --> 23:29.442
suit. And so I think your council will want to convince

23:29.502 --> 23:32.000
the government not to intervene. If possible,

23:33.337 --> 23:36.742
perhaps file a motion to dismiss so that the case

23:36.790 --> 23:39.125
is hopefully over.

23:40.387 --> 23:44.992
Or if something did happen that

23:45.040 --> 23:48.397
makes this a meritorious claim, you may want to consider some sort of

23:48.430 --> 23:52.342
settlement with the government, and council can

23:52.465 --> 23:55.717
assist in negotiating that sort of settlement rather

23:55.765 --> 23:59.577
than going to trial. Under the False

23:59.607 --> 24:03.277
Claims Act, you can

24:03.295 --> 24:07.242
be liable for trouble damages. So if the government calculates

24:07.302 --> 24:10.947
the damages to be $1 million, you could be responsible

24:10.992 --> 24:14.727
for $3 million in damages. Plus there's

24:14.757 --> 24:19.282
a fine between $11,665

24:19.360 --> 24:23.322
per claim and $23,330 per claim.

24:23.517 --> 24:27.457
So a settlement can help bring those numbers down

24:27.535 --> 24:31.037
so that hopefully you're not paying trouble damages

24:32.062 --> 24:35.837
and hopefully paying a lesser amount in civil fines.

24:36.787 --> 24:39.877
This is on top of returning the funds that were

24:39.970 --> 24:42.650
obtained, in other words,

24:43.462 --> 24:47.362
yes. One thing

24:47.425 --> 24:50.962
that can be addressed in settlement negotiations with the government is

24:51.025 --> 24:54.792
how any funds that are returned are addressed.

24:54.927 --> 24:59.047
If the funds are returned before you

24:59.080 --> 25:02.712
have any idea that a false claims that suit has been brought,

25:02.862 --> 25:06.162
there is a better chance that those funds will be subtracted

25:06.312 --> 25:09.500
from anything you might need to pay later.

25:10.462 --> 25:11.450
Got it?

25:14.362 --> 25:18.402
Okay, so now if the government continuing

25:18.432 --> 25:21.397
on the worst case scenario here, the government decides that they do want they are

25:21.430 --> 25:25.077
interested in this case and they smell something brewing and they don't

25:25.107 --> 25:28.807
want this to be settled out of court, so then such a

25:28.810 --> 25:32.362
thing would go to trial. Right. Is that the next step? And then

25:32.425 --> 25:36.157
it would be government versus I

25:36.160 --> 25:39.657
guess it would depend if it's Medicaid or Medicare, if it's state or federal

25:39.747 --> 25:41.525
or how does that work?

25:42.112 --> 25:45.522
Well, the federal

25:45.567 --> 25:49.272
government can have a false

25:49.317 --> 25:53.157
claims that suit under Medicare or Medicaid,

25:53.322 --> 25:56.877
but there are also state law equivalents of the false

25:56.907 --> 26:00.247
Claims Act. So for instance, like, New York state

26:00.355 --> 26:04.925
has a New York False Claims Act and

26:05.437 --> 26:09.062
lawsuits can also be brought under the state law equivalents.

26:11.062 --> 26:14.617
Got it. Okay, so what about

26:14.665 --> 26:16.337
from a criminal standpoint,

26:19.762 --> 26:23.442
let's say from the ownership operators,

26:23.502 --> 26:27.097
administrator level, in other words, the management of

26:27.130 --> 26:30.772
the nursing home that is not actually doing the work but is

26:30.805 --> 26:35.277
overseeing the work that is done and that result in the questionable documentation

26:35.307 --> 26:39.072
or behavior. What level of personal liability

26:39.267 --> 26:42.697
are there? Nursing homeowners sitting in jail today for something that

26:42.730 --> 26:46.717
their employees have done? Because maybe the corporate compliance program

26:46.765 --> 26:50.272
wasn't where it should have been or maybe they didn't screen the employee properly or

26:50.305 --> 26:53.782
whatever. Yeah, tell us about that.

26:53.935 --> 26:57.522
There's something called the corporate officer doctrine,

26:57.642 --> 27:01.597
responsible corporate officer doctrine, where if

27:01.630 --> 27:05.382
you're sort of the one ultimately responsible

27:05.472 --> 27:09.922
for overseeing and monitoring the

27:09.955 --> 27:13.792
operations, you can be liable for

27:13.990 --> 27:17.600
the conduct of employees. So it is very important

27:17.962 --> 27:22.175
from both a civil perspective and a criminal perspective to

27:22.987 --> 27:26.202
just monitor things to the best of your ability

27:26.382 --> 27:30.587
and to really oversee your employees.

27:32.362 --> 27:36.612
In order for, let's say, management, a corporate

27:36.687 --> 27:39.912
officer, if that's the right term.

27:39.987 --> 27:44.002
In order for them to be criminally responsible, though, do you need like

27:44.020 --> 27:47.512
a case of gross negligence? Well, my question

27:47.575 --> 27:50.462
is people who are right now in that role,

27:50.962 --> 27:53.712
whether it's administrator or regional owner,

27:53.787 --> 27:57.352
manager, whatever the title is and whatever the relationship is

27:57.370 --> 28:00.702
with the building, there's a certain level of management

28:00.732 --> 28:03.877
in the building, a certain level management that's depending on how it's set

28:03.895 --> 28:06.512
up in a corporate structure.

28:07.612 --> 28:10.677
I'm trying to figure out how much they have to stay up at night worrying

28:10.782 --> 28:14.977
that someone that they hired and screened and did what they and

28:15.070 --> 28:18.922
is doing their job may be on their dime doing things

28:18.955 --> 28:22.722
they shouldn't be done. And besides a business concern

28:22.767 --> 28:26.097
because they could be, like you mentioned before, serious financial

28:26.217 --> 28:30.212
implications. But also from a criminal standpoint,

28:32.212 --> 28:35.107
I guess the question is how do they avoid that?

28:35.260 --> 28:38.452
Well, from a criminal standpoint, there's a kind of a higher

28:38.545 --> 28:40.937
level of knowledge required.

28:42.187 --> 28:45.875
So I think you want to be

28:47.287 --> 28:50.847
monitoring the things that you're expected

28:50.892 --> 28:55.797
to monitor, I guess not just blindly trusting

28:55.842 --> 28:59.075
employees to do things that you really should be aware of,

28:59.437 --> 29:02.912
but something that would typically be handled by an employee,

29:03.862 --> 29:07.192
that it would be sort of onerous for

29:07.315 --> 29:10.625
an owner to be in the weeds about.

29:11.062 --> 29:14.542
I would think you wouldn't be expected to know of

29:14.590 --> 29:18.202
that necessarily. Amazing.

29:18.370 --> 29:22.477
Okay, this is definitely very helpful of getting a better idea of

29:22.645 --> 29:28.407
the False Claims Act specifically, and also the levels

29:28.422 --> 29:32.197
of the legalities that any healthcare facility is

29:32.230 --> 29:35.782
responsible for. I just see the time here,

29:35.860 --> 29:39.427
and it's almost time to wrap up. Any final

29:39.595 --> 29:43.297
other issues that you feel that we should touch on before we wrap up today?

29:43.405 --> 29:46.782
Or any final thoughts about the False

29:46.797 --> 29:50.787
Claims Act or a practical piece of advice for operators

29:50.937 --> 29:52.700
just before we wrap things up?

29:53.887 --> 29:57.267
I think we've covered a lot of the best advice,

29:57.327 --> 30:01.212
but I would say good training for your employees,

30:01.362 --> 30:04.762
keep good records of what's being done,

30:04.825 --> 30:08.197
and encourage your employees to keep those records in

30:08.230 --> 30:12.657
real time. And discipline

30:12.822 --> 30:16.392
employees if you find out that they are responsible

30:16.452 --> 30:19.700
for any misconduct. Got it.

30:20.437 --> 30:23.602
So, I guess just before we go, first of all,

30:23.620 --> 30:27.427
thank you for your time and your expertise and sharing in this forum. I know

30:27.445 --> 30:31.147
this is a subject which is a little bit taboo and

30:31.180 --> 30:35.075
people don't really discuss it, not on the nursing home side. And also,

30:35.737 --> 30:39.397
it's sometimes difficult to get someone

30:39.430 --> 30:42.822
from the legal team to talk about it also unless

30:42.867 --> 30:46.222
you're actively involved in this stuff. But these are things that a lot of people

30:46.255 --> 30:50.077
are nervous about. And honestly, it pushes good people away from

30:50.095 --> 30:53.887
these types of businesses, because why should I deal with a health care business

30:53.950 --> 30:58.112
which has government funding and additional

30:58.912 --> 31:02.197
potential liability where I can do some other

31:02.230 --> 31:05.907
business? So just knowing the devil

31:05.922 --> 31:08.647
that you know and the devil that you don't know. Right. So just knowing what

31:08.680 --> 31:12.457
it is, I think kind of dust it off a

31:12.460 --> 31:16.002
little bit and makes it a little bit more approachable. So I really appreciate

31:16.032 --> 31:19.297
you for doing that. So thank you so much for joining this

31:19.330 --> 31:22.712
episode of the Nursing Home podcast.

31:23.212 --> 31:27.297
We'll definitely leave a link in the podcast

31:27.342 --> 31:30.117
in the show notes to Fox Rothschild,

31:30.177 --> 31:33.502
obviously. And if you don't, maybe just before you go, tell us a little bit

31:33.520 --> 31:37.175
about some of the work sorry, some of the work that you've actually done.

31:38.512 --> 31:42.162
The services just a little bit of the fox Rothschild

31:42.237 --> 31:46.117
does with nursing homes. Maybe just give us, like, a 32nd

31:46.165 --> 31:49.925
blur of what you actually do so that if people are interested

31:50.512 --> 31:54.837
or have such an allegation against their facility

31:54.912 --> 31:58.662
that they'll be able to at least have an initial conversation

31:58.737 --> 32:01.475
and see if there's something that makes sense.

32:02.287 --> 32:06.142
Absolutely. So Fox Rothschild has offices all over

32:06.190 --> 32:09.217
the country, and we have lawyers who practice in

32:09.415 --> 32:12.997
a wide variety of areas. So in terms of the services

32:13.105 --> 32:16.597
we can provide to nursing homes, we can

32:16.630 --> 32:18.875
provide all sorts of services,

32:20.512 --> 32:23.797
corporate employment, real estate. And what

32:23.830 --> 32:29.287
we were just discussing compliance services or

32:29.425 --> 32:32.952
services if you are involved in litigation

32:33.057 --> 32:37.027
or receive a subpoena or a

32:37.045 --> 32:40.250
civil investigative demand. Got it?

32:40.687 --> 32:45.050
Okay. And the best place to learn more information is, I guess,

32:45.412 --> 32:50.287
on the website, which is what it's Foxrothchild.com.

32:50.425 --> 32:54.097
Okay? Simple as that. All right, we'll definitely include that. Thank you so

32:54.130 --> 32:57.952
much for coming on the podcast again and sharing all

32:57.970 --> 33:01.042
of that information, first of all with me, but also

33:01.090 --> 33:04.377
with the listeners and viewers who have already joined

33:04.407 --> 33:09.247
the conversation and also those who are going to see it at the nursinghomepodcast.com.

33:09.280 --> 33:12.892
And as a reminder, this episode, as well as all past

33:12.940 --> 33:16.837
and future episodes are available at the nursing homepodcast.com

33:16.900 --> 33:20.677
as well as wherever you get your podcast. Thank you for

33:20.695 --> 33:23.902
joining us today for this program. Hope you have a great rest of

33:23.920 --> 33:24.650
your day.

33:37.387 --> 33:40.957
Now that you've enjoyed this episode of the nursing home

33:41.035 --> 33:44.982
podcast, I'd really appreciate if you'd rate this podcast

33:45.147 --> 33:48.922
and let everyone else know what an amazing resource this

33:48.955 --> 33:52.522
is for those wanting to learn anything and everything about the nursing home

33:52.555 --> 33:56.962
industry. So head on over to rate this Podcast.com

33:57.025 --> 34:00.817
slash nursing home. Again, rate this Podcast.com

34:00.865 --> 34:04.867
slash nursing home, leave me a review, and let the world know what

34:04.915 --> 34:08.572
an amazing show this truly is. Thank you so much for listening and

34:08.605 --> 34:12.912
make sure to stay tuned and subscribe so you don't miss any other episodes.