The purpose of this policy is to inform employees, contractors and agents of Tufts University of the provisions of the federal and state (Massachusetts) false claims acts (FCAs), including their right to report violations of federal and state law. This policy also includes general information regarding the University’s efforts to combat fraud, waste and abuse, and to describe the remedies and fines for violations that can result from certain types of fraudulent activities.
This Policy applies to all schools and divisions at Tufts University; Tufts community members and affiliates; representatives, contractors, vendors; and any other third parties that work on behalf of the University.
Tufts University pays special attention to the accuracy of specific types of records, including without limitation, accounting and financial records, tax reports, expense reports, insurance billings, time sheets, effort reports, and other documents and reports submitted to government agencies.
The University engages in specific compliance efforts to detect and prevent fraud, waste and abuse. All employees, representatives, contractors, and agents of the University must immediately report any suspicion of fraud, waste, or abuse in connection with the business of the University to the Office of Audit and Management Advisory Services or to the Office of University Counsel.
For more information on the University’s specific compliance policies, or on how to report any concerns, please contact the Office of University Counsel.
In addition, reports may be made anonymously and confidentially through Ethicspoint, online at https://secure.ethicspoint.com/domain/media/en/gui/7182/index.html or by calling toll-free at 1-866-384-4277.
Detailed Information of the Federal False Claims Act (31 USC §§ 3729-3733)
The federal FCA imposes civil (and in some cases may lead to criminal) penalties on people and entities who knowingly submit a false claim, act in deliberate ignorance of the claim's truth or falsity, act in reckless disregard of its truth or falsity, or conspire to defraud the government by getting a false or fraudulent claim paid. Specific intent to defraud is not required.
The FCA includes an important provision that allows private citizens to initiate a lawsuit on behalf of the federal government and request the government to join in the suit. In return, that citizen may share a percentage of any recovery or settlement. This type of lawsuit is known as a “qui tam,” and the individual initiating the lawsuit (the “relator”) is a whistleblower who brings forth evidence of the alleged improper conduct. The purpose of this qui tam provision is to give a financial incentive for whistleblowers to come forward to help the government identify and avoid paying fraudulent claims.
To prevail under a lawsuit, the relator must be the original source of the information reported to the federal government. Specifically, the relator must have direct and independent knowledge of the false claims activities and voluntarily provide this information to the government. If the matter disclosed is already the subject of a federal investigation, if the healthcare provider or supplier has previously disclosed the problem to a federal agency, or if it has been reported in the news or otherwise publicly disclosed, the relator will generally be barred from obtaining a recovery under the FCA.
A private legal action under the FCA must be brought within six years from the date that the false claim was submitted to the government. Depending upon the circumstances, a government-initiated claim may be brought up to 10 years after the false claim.
The FCA extends to any payment requested of the federal government. The FCA applies to billing and claims sent from the University to any government payor program, including Medicare and Medicaid and federal research sponsors.
It is the policy of the University that an employee, representative, contractor or agent of the University who knowingly submits a false claim will be reported to the authorities. Under the FCA, anyone or any entity that submits a false claim or statement to the government may be fined a civil penalty between $5,500 and $11,000 for each such claim submitted, regardless of the size of the false claim, and the person or entity could be required to pay an additional amount equal to three times the amount of the damages that the government sustains due to the false claim. The person or entity submitting the false claim is also required to pay all legal costs and fees associated with action taken against the false claimant by the government. In addition, another law (42 USC § 1320a-7) requires the government to exclude violators from participating in Medicare, Medicaid, and other federal healthcare programs.
Examples of potential false claims include, but are not limited to: (i) submission of a claim to Medicare for payment for services not rendered, or (ii) falsification of a time and effort report in connection with a claim for reimbursement from government grant.
Whistleblower Protection – Federal Law
The federal FCA protects employees who are discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against by their employer because of their participation or assistance (e.g., testimony, initiation of investigation) in a false claim action.
The Act entitles employees to relief to "make them whole." This may include reinstatement with the same seniority status they would have had but for the discrimination, double back pay, interest on back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees.
Detailed Information of the Federal Program Fraud Civil Remedies Act (32 CFR § 516.68)
Under the Program Fraud Civil Remedies Act (PFCRA), Individuals or entities that commit fraud against the federal government, by false claims or statement, can be given financial penalties in addition to the penalties of the FCA. PFCRA penalties of $5,000 per false claim or statement apply if an individual or entity submits a claim to the federal government that:
- The individual or entity knows (or has reason to know) is false, fictitious, or fraudulent;
- Includes or is supported by written statements containing false, fictitious, or fraudulent information;
- Omits a material fact, without which the statements are false, fictitious, or fraudulent, and the individual submitting the statement has a duty to include the omitted fact; or
- Is for payment of property or services that are not provided as claimed.
If the government pays on a false claim, they are entitled under the PFCRA to double that amount in compensation.
An additional $5,000 penalty also applies if a person or company provides written back-up or materials relating to the claim in which the individual or entity asserts a material fact that is false, fictitious or fraudulent; or omits a fact that the individual had a duty to include, the omission causes the statement to be false, fictitious, or fraudulent. This additional penalty only applies if the statement contains a certification of accuracy, but no intent to defraud the government is required.
Massachusetts False Claims Act (Massachusetts General Laws ch. 12, §5A-5O)
The Commonwealth of Massachusetts has its own FCA, which is very similar to the federal FCA. Under the MA statute, no person may:
- Knowingly make a false or fraudulent claim for payment or approval;
- Knowingly make or use a false record, or a statement material to a false or fraudulent claim, or which includes items or services in violation of other law;
- Conspire to do any of the above
- Have property or money that is to be used by the Commonwealth and knowingly deliver less than all of that property or money;
- With intent to defraud the Commonwealth, make or deliver a document certifying receipt of property to be used by the Commonwealth without completely knowing that the information on the receipt is true;
- Knowingly buy or receive public property from an officer or employee of the Commonwealth who does not have the legal right to sell or pledge such property
- Enter into an agreement, contract or understanding with the Commonwealth knowing that it contains false information;
- Knowingly make or use a false record, or a statement material to an obligation to pay money or property to the Commonwealth, or knowingly conceal, avoid, or decrease an obligation to pay the Commonwealth;
- Benefit from an inadvertent submission of a false claim to, or an overpayment from, the Commonwealth, and who subsequently discovers the falsity of the claim, but fails to disclose the false claim or receipt of overpayment within 60 days after the date of discovery (or the date any corresponding cost report is due, whichever is earlier),
Liability to the Commonwealth for such actions is a civil penalty of not less than $5,500 and not more than $11,000 per violation (as adjusted by inflation), plus three (3) times the amount of damages, including consequential damages such as reimbursement for lost profits, etc., and full reimbursement of all legal fees that the Commonwealth (or a political subdivision thereof) incurs because of the false claim.
A civil action for false claims under the MA statute must be brought within six years of the date that the violation occurred, or within three years after the date when facts material to the right of action are, or reasonably should be, known by the Attorney General’s Office, but in no event more than 10 years after the date on which the violation is committed.
A separate Massachusetts statute (Massachusetts General Laws Ch. 266 § 67B) criminalizes the submission of false claims to the Commonwealth or any of its political subdivisions, providing for punishment by one or more of: a fine of up to $10,000, up to five years in prison, or up to two and a half years in a correctional facility. Massachusetts General Laws Ch. 118E § 40 provides for the same punishment for false statements to secure Medicaid benefits.
Whistleblower Protection – Massachusetts Law
University employees should be aware that they may notify the government themselves if they believe the University does not respond appropriately when given notification of a potential violation. The University is prohibited from taking any adverse action whatsoever against the employee should said person notify the government. Protection is available to employees who report violations of law, participate in government investigations or hearings, or refuse to execute illegal directives.
Any employee who lawfully reports information about false claims or suspected false claims submitted by others, or participates in an investigation, hearing, or inquiry conducted by any government entity or court, or refuses to execute a directive that violates any law or rule adopted by the Commonwealth of Massachusetts cannot be discharged, threatened, or discriminated against. Under the Massachsetts FCA, any employee unlawfully discriminated against for such reporting is entitled to the same relief granted under the federal FCA.
- Office of University Counsel
- Finance Division Office
- Academic Council
- Office of the President
- Thomas S. McGurty, Treasurer
- Mary R. Jeka, Senior Vice President and General Counsel
- Finance Division Office
- Office of University Counsel
The University reserves the right to change this policy from time to time. Proposed changes will normally be developed by those responsible for the policy with appropriate stakeholders. The approval entities have sole authority to approve changes to this policy.
This Policy shall be reviewed periodically and as needed.