AFCA – False Claims Act Protections

By /
  1. Introduction

Under the False Claims Act (FCA) any person who presents, to the United States Government a false or fraudulent claim for payment of approval is liable for a civil penalty, treble damages, and costs. The term "person" includes local governments.

False claims laws prevent fraud and abuse by allowing the government to bring civil actions to recover damages and penalties when certain entities submit false claims and permit suits by whistleblowers, typically employees or former employees of entities that submit false claims.

All District staff shall take steps to prohibit any waste, abuse, and fraudulent practices, including but not limited to waste, fraud, or abuse of Medicaid funding. Federal and state laws prohibit waste, abuse, and fraud of Medicaid funds that this District receives for services provided. Waste, abuse, and fraud related to government claims or payments are prohibited.

  1. Definitions
  1. Abuse: excessive or improper use of services or actions that are inconsistent with acceptable business or medical practices.
  2. Contractor or agent: any contractor, subcontractor, agent, or other person who, on behalf of the entity, furnishes, or otherwise authorizes the furnishing of Medicare health services, performs billing or coding functions, or is involved in monitoring of health care provided by the entity.
  3. Fraud: an intentional act of deception, misrepresentation, or concealment to gain something of value.
  4. Knowingly: a person with respect to information about a claim:
    1. Has actual knowledge of the falsity of the information;
    2. Acts in deliberate ignorance of the truth or falsity of the information; or
    3. Acts in reckless disregard of the truth or falsity of the information.
  5. Waste: over-utilization of services and the misuse of resources.
  6. Whistleblower: a private person with knowledge of a false claim who brings a civil action on behalf of the United States Government to recover the funds paid by the Government as a result of the false claim.
  1. Federal False Claims Act ("FCA")
  1. Under the Federal FCA, any person or entity that knowingly submits a false or fraudulent claim for payment of United States Government funds, or knowingly retains an overpayment of such funds more than 60 days, is liable for penalties. The Federal FCA applies to any federally funded program, such as claims submitted to Medicare or Medicaid.
  2. Proceedings may be initiated by a whistleblower. If the suit is successful, the whistleblower may be awarded a percentage of the funds recovered. If the whistleblower is found to have participated in the false claims violation, the whistleblower will not receive any portion of the proceeds.
  3. A similar federal law is the Program Fraud Civil Remedies Act of 1986 (the "PFCRA"). It provides administrative remedies for knowingly submitting false claims and statements. A false claim or statement includes submitting a claim or written statement for services that were not provided, or that asserts a material fact that is false, or that omits a material fact.
  4.  Federal Protections
    1. The Federal FCA protects a whistleblower from retaliation by an employer. The whistleblower may bring an action in the appropriate federal court to obtain relief.
    2. The District prohibits and will not tolerate any form of reprisal, retaliation, or discrimination against any employee, student, or community member because the individual:
      1. In good faith, made or intends to make a report under the FCA that the District, a District employee, or an entity/person with whom the school District has a business relationship has violated federal, state, or local law/administrative rules or District Board policy through practice, policy, act, or omission;
      2. Participants in District-related investigation, hearing, or inquiry; or
      3. Refused to carry out a directive that the employee believes is in violation of state or federal law, rule, or regulation or poses a substantial or specific danger to public health and safety provided the employee has an objective basis for that belief and informs the employer that the directive is being refused for that reason.
  1. Colorado Medical Assistance Act ("CMAA")
  1. The Colorado Medical Assistance Act makes it unlawful for any person to:
    1. knowingly present, or cause to be presented, a false or fraudulent claim for payment or approval;
    2. knowingly make, use, or cause to be made or used a false record or statement material to a false or fraudulent claim;
    3. have possession, custody, or control of property or money used, or to be used, by the State in connection with the CMAA and knowingly deliver, or cause to be delivered, less than all of the money or property;
    4. authorize the making or delivery of a document certifying receipt of property used, or to be used, by the State in connection with the CMAA and, intending to defraud the state, make or deliver the receipt without completely knowing that the information on the receipt is true;
    5. knowingly make, use or cause to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the State in connection with the CMAA, or knowingly conceal or knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the State in connection with the CMAA.
  2. Violations of the CMAA are civil offenses and may result in monetary penalties.
  3. The Colorado Attorney General is charged with the duty to investigate suspected violations of the CMAA and may bring civil action against a person that has violated the CMAA. An individual may also bring a private civil action on behalf of the individual and the State. The individual bringing the civil action may be awarded a percentage of the funds recovered.
  4. In addition to the CMAA, Colorado has adopted a statute making it unlawful to offer a false instrument to a public employee for recording in a public record. Violations of this statute are criminal offenses and are punishable by imprisonment and monetary penalties.
  5. CMAA Protections for Whistleblowers: The CMAA contains an employee protection provision that provides any employee, contractor, or agent with relief if the employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by the employer or any other person because of lawful acts done by the employee, contractor, or agent to prevent violations of the CMAA.
 
  1. Colorado False Claims Act ("CFCA")
  1. CFCA holds individuals and businesses liable for committing, conspiring, or aiding and abetting in the commission of "false claims." Such claims include false claims for payment from state funds, false records relating to claims for state payments, and withholding and misuse of state funds. The CFCA authorizes civil penalties to protect public funding from misuse and misappropriation.
  2. False claims may also include when an individual or business:
    1. submits a false bill to a state or local government;
    2. falsifies records relating to a false claim;
    3. maintains custody over money recovered from a false claim;
    4. falsifies a receipt for governmental property;
    5. purchases public property which was not lawfully for sale; or
    6. falsifies a record regarding an obligation owed to the state or local government.
  3. In addition to authorizing civil penalties, the CFCA also authorizes whistleblowers to report fraud. The CFCA allows such whistleblowers to file lawsuits on behalf of the state against those who make false claims for state funds. In the event of a successfulsuit, whistleblowers may recover a percentage of any funds recouped by the government.
  4. Additionally, the CFCA authorizes the Colorado Attorney General and local prosecutors to investigate false claims, seek penalties, and intervene incases brought by whistleblowers.
  5. CFCA Protections for Whistleblowers
    1. The CFCA protects whistleblowers from any form of retaliation, due to the whistleblower's "efforts to prevent false claims."
    2. A whistleblower is entitled to relief to make that whistleblower whole if the whistleblower is retaliated against or discriminated against in the terms and conditions of the whistleblower's employment or business, by the entity or by any other person because of the whistleblower's efforts to prevent false claims.
    3. Lawful Acts include but are not limited to:
      1. Conducting or assisting with an investigation for, initiation of, testimony for, or assistance in an action filed or to be filed pursuant to this section, or conducting or assisting with an investigation when there is a reasonable belief of a potential violation;
      2. Meeting with potential or retained counsel or agents or representatives of the state about the matter that is the subject of an action or potential action;
      3. Providing the individual's counsel or agents or representatives of the state with confidential information; or
      4. Filing an action pursuant to the CFCA.
 
  1. Internal Reporting of Concerns regarding Fraud
  1. CCSD Complaint Procedure
    1. Anyone covered by the above protections who reasonably believes that this policy has been violated may file a written complaint with the District Office of Fiscal Services and/or the Office of Human Resources.
    2. The complaint must be submitted within 180 calendar days of the alleged violation, unless otherwise specified in state or federal law. Failure to timely present the grievance shall be deemed a waiver of the grievance.
    3. Upon receipt of the complaint, the Office of Fiscal Services and/or the Office of Human Resources shall designate an investigator. The investigator will review the complaint and determine whether the complaint is appropriate for investigation under this policy based on whether the whistleblower articulates a credible report of fraud, abuse, waste, or retaliation.
    4. If the complaint is accepted by the investigator, investigations shall be completed within sixty (60) calendar days unless the investigator provides notice in writing identifying reasonable cause for the investigation deadline to be extended.
    5. Upon completion of the investigation, the investigator shall issue findings to the complaint in a written report.
  2. Alternative Complaint Options
    1. Complainants may also report grievances directly to the Colorado Department of Health Care Policy & Financing:

Phone: 855-375-2500 (for State Relay, call 711)

Email: hcpf_reportproviderfraud@state.co.us

Fax Number: 303-866-4411

Mail: Department of Health Care Policy & Financing

Attn: Program Integrity Section

1570 Grant Street

Denver, CO 80203

    1. Suspected fraud may also be reported directly to the Medicaid Fraud Control Unit at the State of Colorado Attorney General's Office at (720) 508-6696.
    2. Suspected fraud may also be reported to the Office of Inspector General, U.S. Department of Health and Human Services Fraud Hotline at 1-800-447-8477.
  2. Retaliation

As necessary, the District may take reasonable steps to protect the whistleblower from retaliation during and/or after the investigation. All individuals involved in an investigation shall be advised to keep information about the investigation confidential and should be advised of the protections contained in this policy.

  1. Policy Violation Consequences
  1. Any employee or District contractor, who is found to have engaged in any of the prohibitions contained in this policy may be subject to consequences, including disciplinary action and/or termination of services.
  2. The District may also impose consequences against a purported whistleblower who knowingly files a false claim of reprisal, retaliation, or discrimination under this policy including disciplinary action, termination of services, and legal action.
Adopted: February 13, 2023
Legal References: C.R.S. § 24-31-1201 (Colorado False Claims Act)
C.R.S. § 18-5-114 (offering a false instrument for recording)
C.R.S. § 25.5-4-306 (civil actions for false Medicaid claims)
C.R.S. § 25.5-4-305 (false Medicaid claims liability for certain acts)
C.R.S. § 25.5-4-304 (Colorado Medical Assistance Act - Definitions)
31 U.S.C. §§ 3729-3733 (federal False Claims Act ("FCA"))
31 U.S.C. §§ 3801-3812 (administrative remedies for false claims and statements)
Adoption Date: February 13, 2023
Scroll to Top