The Standards of Conduct (“Standards”) is a non-exclusive compilation of guidelines regarding ethical and legal standards that all University employees are expected to follow when performing services for or on behalf of the University that are related to the areas covered by this Program. The Standards shall be available in the Office of Compliance and on the University’s website.
6.2 Hiring and Retention
The University will not hire or retain as an employee, independent contractor or agent any health care professional it knows to have been convicted of a criminal office related to health care or who is debarred by the General Services Administration or is excluded or otherwise ineligible for participation in Federal Health Care Programs. When credentialing physicians, the College of Medicine, Oklahoma City and Tulsa, will consult with the National Practitioner Data Bank as well.
6.3 Coding and Billing Standards and Procedures
6.3.1 Billing in General
Honesty and accuracy in billing and in the making of claims for payment by a Federal Health Care Program, or payment by any third party payer, is vital. Each health care professional employed by the University is expected to monitor compliance with applicable billing rules. No University employee shall submit, authorize or sign a false claim for reimbursement in violation of applicable laws and regulations. Claims for the provision of services and/or supplies should be submitted only by the University department or college that generated the charges unless an alternative billing arrangement has been approved by the Director of Compliance and the Vice President for Health Affairs and Associate Provost – Health Sciences Center.
6.3.2 Billing and Coding
University employed health care professionals will refrain from any of the following practices and work to identify and correct instances in which mistakes have occurred in the following areas:
Billing for items or services not rendered or not provided as billed;
Submitting claims for equipment, medical supplies and services that are not reasonable and necessary;
Double billing resulting in duplicate payment;
Billing for non-covered services as if covered;
Knowingly misusing provider identification numbers, resulting in improper billing;
Unbundling (billing for each component of the service instead of billing or using an all-inclusive code);
Failure to properly use coding modifiers;
Falsely indicating that a particular health care professional attended a procedure;
Clustering (billing all patients using a few middle levels of service codes, under the assumption that it will average out to the appropriate level of reimbursement);
Failing to refund credit balances; and
Upcoding the level of service provided.
6.3.3 Billing to Receive Denial
A University department or college may bill Medicare in order to receive a denial for services, but only if the denial is needed for reimbursement from a secondary payer. The Medicare claim submission should indicate that the claim is being submitted for the purpose of receiving a denial in order to bill a secondary insurance carrier.
6.3.4. Waiver of Co-payments and Deductibles
University-employed health care professionals will not waive co-payments or deductibles except to the extent consistent with applicable laws, regulations and guidance issued by the Office of Inspector General. Permissible waivers may include, but are not necessarily limited to, waiver based on indigence and contractual write-offs and discounts.
6.3.5 Billing and Coding Queries
Billing and coding staff shall be able to communicate with and receive communications from University-employed health care professionals at all times. Billing and coding staff will not submit claims for reimbursement until all coding questions have been satisfactorily answered and appropriate documentation has been submitted by the appropriate health care professional.
6.3.6 Use of Consultants
From time to time, the University may retain consultants to provide reimbursement and/or coding assistance. Such consultants may not be paid on a percentage based upon the increase in reimbursement to the University or one of its departments or colleges (i.e. a contingent fee contract).
Claims for payment will be coded and billed based on the documentation contained in the patient’s medical record. University-employed health care professionals will appropriately document the services and supplies provided to, or the diagnosis and treatment of, each patient and will complete medical records in a timely manner. Medical record documentation must be completed and legible.
6.4 False Claims Statutes, Anti-Kickback Statute and Self-Referral Proscriptions
The University is committed to complying with the requirements of Federal and State law, including the Federal Deficit Reduction Act of 2005 and the Fraud Enforcement and Recovery Act of 2009, and to preventing any fraud, waste, or abuse in its organization in connection with government health care programs.
6.4.1 Federal False Claims Act
Under the Federal False Claims Act, any person or entity that knowingly submits a false or fraudulent claim for payment of United States Government funds or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government is liable for significant penalties and fines. The fines may include a penalty of up to three times the Government’s damages plus civil penalties ranging from $11,181 to $22,363 per false claim, and the costs of the civil action against the entity that submitted the false claims. Generally, the federal False Claims Act applies to any federally-funded program. The False Claims Act applies, for example, to claims submitted by healthcare providers to Medicare or Medicaid. 31 U.S.C. §§ 3729-3733
A similar federal law is the Program Fraud Civil Remedies Act of 1986 (the “PFCRA”). It establishes administrative remedies for knowingly submitting false claims and statements. A false claim or statement includes submitting a claim or making a written statement that is for services that were not provided, that asserts a material fact that is false, or omits a material fact. A violation of the PFCRA may result in a maximum civil penalty of $11,463 per claim plus an assessment of up to twice the amount of each false or fraudulent claim. 31 U.S.C. §§ 3801-3812
6.4.2 State Medicaid False Claims Act
The Oklahoma Medicaid False Claims Act essentially mirrors the federal False Claims Act. For each violation, the civil penalty is not less than $5,500 and not more than $11,000, plus three times the amount of damages the State sustains because of the fraudulent act. Oklahoma has also adopted a generally applicable Medicaid anti-fraud statute that makes it unlawful for a person to submit false and fraudulent claims to the Oklahoma Medicaid program. Violations of the Oklahoma Act are both civil and criminal offenses and are punishable by imprisonment and significant monetary penalties. The Oklahoma Medicaid False Claims Act does include a qui tam provision through which the whistleblower may recover between 15% and 25% of the proceeds of the action if the State chose to pursue the claim. If the information was available through another source, such as an administrative hearing or news media, the whistleblower may recover up to 10%. Okla. Stat. tit. 63 §§ 5053.1-5053.7, 5015.8
6.4.3 Qui tams
One aspect of the federal and state False Claims Acts is the “qui tam” provision, commonly referred to as the “whistleblower” provision. This provision allows a private person with knowledge of a false claim to bring a civil action on behalf of the United States Government. The purpose of bringing the qui tam suit is to recover the funds paid by the Government as a result of the false claims. The United States Government may decide to join the qui tam suit. If the suit is ultimately successful, the whistleblower that initially brought the suit may be awarded a percentage of the funds recovered. Because the Government assumes responsibility for all of the expenses associated with a suit when it joins a false claims action, the percentage is lower when the Government joins a qui tam claim.
Regardless of whether the Government participates in the lawsuit, the court may reduce the whistleblower’s share of the proceeds if the court finds that the whistleblower planned and initiated the false claims violation. Further, if the whistleblower is convicted of criminal conduct related to his role in the preparation or submission of the false claims, the whistleblower will be dismissed from the civil action without receiving any portion of the proceeds.
The federal False Claims Act also contains a provision that protects a whistleblower from retaliation by his employer. This protection applies to any employee who is discharged, demoted, suspended, threatened, harassed, or discriminated against in his employment as a result of the employee’s lawful acts in furtherance of a false claims action. The whistleblower may bring an action in the appropriate federal district court and is entitled to reinstatement with the same seniority status, two times the amount of back pay, interest on the back pay, and compensation for any special damages as a result of the discrimination, such as litigation costs and reasonable attorneys’ fees.
Reporting Concerns Regarding Fraud, Abuse and False Claims
The University takes issues regarding false claims and fraud and abuse seriously. The University encourages all employees, management, and contractors or agents of OUHSC to be aware of the laws regarding fraud and abuse and false claims and to identify and resolve any issues immediately. Issues are resolved fastest and most effectively when given prompt attention at the supervisory level. The University, therefore, encourages its employees, contractors and agents to report concerns to their immediate supervisor when appropriate. If the supervisor is not deemed to be the appropriate contact or if the supervisor fails to respond quickly and appropriately to the concern, then the individual with the concern should be encouraged to discuss the situation with the Department Chair, another member of management, the Director or Associate Director of Compliance or call the Compliance Hotline (405-271-2223 or 866-836-3150).
6.4.4 Anti-Kickback Statute
No University-employed health care professional or University department or college may pay or accept a payment to induce the referral of a patient in violation of the federal or state Anti-kickback statutes. No one acting on behalf of the University, or one of its departments or colleges, may offer gifts of more than nominal value, loans, rebates, services, or payment of any kind to a referral source or to a patient without consulting the Director of Compliance.
A number of safe harbor regulations have been adopted under the Federal Anti-Kickback Statute. Analysis of an activity under the Anti-Kickback Statute and its safe harbors is complex and depends upon the specific facts and circumstances of each case. University employees should not make unilateral judgments on the availability of a safe harbor for a financial transaction, payment practice, discount or other financial arrangement. Such situations must be brought to the attention of the Director of Compliance prior to implementation.
6.4.5. Self-Referral Proscription
The Physician Self-Referral Statute, more commonly known as “Stark II”, prohibits a physician’s referral of a patient for a designated health service to an entity with which the physician has a financial relationship unless an exception is met. Compensation and ownership relationships with physicians, including physician employment and independent contractor arrangements, must satisfy an exception to Stark II. Analysis of whether an exception is met depends upon a number of specific facts. University employees should not make a unilateral judgment on the availability of an exception. The responsibility for evaluation the availability of an exception lies with the University’s Director of Compliance.
6.4.6 Physician Recruitment
The recruitment and retention of physicians require special care to comply with applicable laws and regulations. Each recruitment package or commitment must be in writing and consistent with applicable laws and regulations. New or unique recruitment arrangements must comply with Board of Regents policy and must be reviewed by the Director of Compliance in consultation with the University’s Office of Legal Counsel before a formal offer is made.
6.5. Gifts and Gratuities
6.5.1. Gifts from Patients
University-employed health care professionals are prohibited from soliciting tips, personal gratuities or gifts from patients and from accepting monetary tips or gratuities. Health care professionals may accept non-monetary gratuities and gifts of nominal value from patients. If a patient or another individual wishes to present a monetary gift, he/she should be referred to the University Development Office. When an employee receives a gift that violates this policy, the gift should be returned to the donor and reported to the Director of Compliance.
6.5.2. Gifts Influencing Decision-Making
University-employed health care professionals shall not accept gifts, favors, services, entertainment or other things of value to the extent that decision-making or actions affecting such employee may be influenced. Gifts may be received by University-employed health care professionals when they are of nominal value and they could not reasonably be perceived as an attempt to affect the judgment of the recipient. For example, token promotional gratuities from suppliers, such as advertising, novelties and food are not prohibited under this policy. The offer or giving of money, services or other things of value with the exception of influencing the judgment or decision making process of any purchaser, supplier, customer, government official or other individual by University employee, department or college is prohibited.
6.5.3 Gifts to Referral Sources
Gifts of nominal value may be provided to a referral source if made without intent to induce a referral. If a gift is to be made to a referral source which will result in that individual receiving gifts valuing over $300.00 in a calendar year, that gift must be approved in advance by the Director of Compliance. Cash gifts to referral sources are prohibited. Non-cash gifts are permissible only if made without regard to the volume of business received from the referral source. No University funds may be used to provide gifts to referral sources.
6.6 Unlawful Advertising
Neither the University nor the departments and colleges of an employed health care professional will use the names, abbreviations, symbols, or emblems of the Social Security Administration, Center for Medicare and Medicaid Services (CMS), Department of Health and Human Services, Medicare, Medicaid or any combination or variation of such words, abbreviations, symbols or emblems in a manner that conveys the impression that the advertised item or service is endorsed by such government agencies.
6.7 Confidentiality of Patient Information
University employees shall maintain the confidentiality of individually identifiable health information in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Regulations and all other applicable laws and regulations and to adhere to the University’s policies and procedures implementing such laws and regulations.
6.8 Environmental Health and Safety/Radiation Safety
6.8.1. Workplace Health and Safety
The University wants all employees to work in a safe environment. All University employees must perform their jobs in compliance with all applicable institutional policies and state and federal laws and regulations relating to the protection of workers’ safety. Employees must become familiar with the worker safety laws and regulations which apply to their jobs. Employees should seek advice regarding workplace safety and compliance issues from the supervisors or the Environmental Health & Safety Office of any serious situation presenting a danger of injury so that timely corrective action may be taken.
6.8.2 Protection of the Work Environment
All University employees must manage and dispose of hazardous chemical, radioactive, and other wastes in a way that maximizes protection of human health and the work environment and is in accordance with all applicable local, state and federal laws and regulations. All employees must be trained to perform their duties and conduct their activities in an environmentally responsible manner in accordance with applicable laws, regulations and University policies.
6.9.1 Protection of Human and Animal Subjects
The University is committed to dealing ethically with the human and animal subjects which participate in research projects conducted by University faculty, staff and students or performed using University property. Employees involved in human subject or animal research must comply with all federal and state statutes and governing regulating such research and must adhere to all University policies and procedures regarding research.
6.9.2 Research Financial Issues
Research costs and budgets must be prepared and submitted accurately and in accordance with (i) generally accepted accounting principles, (ii) the terms set forth in an industry-sponsored or government grant or contract, whichever is applicable, in addition to applicable statutes and regulations. Financial conflicts of interests will be reported in accordance with University policy.
6.9.3 Scientific Misconduct
The University will not tolerate scientific misconduct that includes, but is not limited to: (i) plagiarism; (ii) falsification; (iii) fabrication; and (iv) other unethical scientific practices. Scientific misconduct is further defined in and governed by other University policies.
6.10 Employee Response to Investigations/Audits
If a University employee is contacted by a government investigator or auditor, the employee should fully and appropriately cooperate. The Employee Investigative and Audit Response Guidelines are available from the Office of Compliance and provide guidance to employees on an appropriate response to such contacts. (See Exhibit A)