By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
At The Health Law Firm, we have represented many clients that were involved in qui tam cases brought because of false claims under the Medicare False Claims Act (FCA). We have defended health facilities and health professionals, but we have also brought whistle blower cases against health facilities and health professionals, representing the whistle blower. If you are thinking about blowing the whistle on any type of fraud or unlawful conduct by your current or former employer, there are important facts that you should know.
Filing a qui tam (whistle blower) case can be complicated, complex, and time consuming. It’s important to seek experienced legal counsel to guide you through the difficult process. It is crucial that a whistle blower’s attorney have a good working relationship with the U.S. Attorney’s Office and the State Attorney’s Office, as well.
Based on years of experience with these types of cases, from both sides, here are some key tips to remember if you are thinking about filing a qui tam or whistle blower suit:
1. You Are Doing the Right Thing. It is important to remember in qui tam cases that you are doing the right thing. Qui tam whistle blowers often save taxpayers millions of dollars and help the government recover stolen funds by coming forward with cases of fraud or unlawful conduct. Additionally, they help to put an end to fraudulent activities and illegal conduct that may harm patients.
2. Choose an Experienced Attorney. Because filing a qui tam suit under the False Claims Act (FCA) can be a difficult and complicated task, choosing an attorney with the proper experience is very important. Litigation of whistle blower cases, either prosecuting them or defending them, is a highly complex, technical area of law and not all attorneys have the experience to make the process easier, let alone be successful.
3. Don’t Drag Your Feet If You Have Evidence of Fraud. Once you have evidence of fraud, you need to act quickly or you may lose your opportunity to receive a monetary award. The FCA limits the time in which a suit can be filed. Generally, a qui tam suit must be filed within six years of the date the fraud was committed. Most qui tam laws, including the FCA also have a “first to file” rule. This means that a qui tam whistle blower must be the first to file a case in order to be eligible to receive an award. Additionally, if the fraud becomes public knowledge or the government discovers the fraud on its own, it is too late for the whistle blower.
4. Whistleblowers Are Legally Protected from Retaliation by the False Claims Act. One concern clients have when filing a qui tam suit, is the effect it might have on their future professional career as well as their personal life.
First, because the case is filed under seal, there is no record of any kind that even shows a case has been filed, much less the name of the person filing it. The U.S. Attorney and its investigators (including the FBI and the OIG Special Agents) will know, but they ain’t telling. It often takes several years before the court will order the case unsealed. Second, the False Claims Act contains a provision that prohibits any type of retaliation against the whistle blower. The act makes it unlawful for any employer to retaliate against you for exercising your rights as a whistle blower. Additionally, if it occurs, you will have a separate right to sue an employer just for the retaliation. I saw a whistle blower case recently which the court dismissed because there wasn’t specific information contained in the complaint about any false claim being submitted. However, because the employer had retaliated against the whistle blower, the court did not dismiss the whistle blower’s claim for wrongful retaliation against the employer. This was a big mistake by the employer.
5. Silence is Golden in Qui Tam Cases. Do not discuss your case with anyone but your lawyer. Do not tell your friends. Do not tell your family. Do not even disclose that you are thinking of filing a lawsuit. Public discussions can be detrimental to your case. Qui tam suits are filed under the “seal” provision of the FCA, which prohibits the disclosure of any aspect of the case to anyone without prior court approval.
6. Most Important, Documentation of Actual False Claims is Required. Recent court cases have strictly emphasized the requirement that you must have documented proof of actual false claims being submitted to the government. Whether these are copies of claims, copies of superbills, copies of explanations of benefits (EOBs), copies of ledgers, copies of book keeping documents or whatever, you must have several actual claims that are false that were submitted for payment. You must be able to specifiy these by patient name, date of service, CPT code billed, amount billed, etc. Internal memos, policies and procedures, billing guidance and instructions, medical record entries, and other documents that show the employer’s intent to defraud the government are useful in showing a conspiracy, or organized scheme to falsely bill. However, you must also have copies of false claims documentation, as well.
Remember: Those who file qui tam cases under the FCA are valuable and important for our nation’s health care system. They help stop health care fraud and help the government recover billions of dollars. They prevent the theft or waste of millions of dollars that could be spent on actual, needed health care. They also help prevent harm that may be caused to patients from receiving substandard treatment, unnecessary procedures and treatments or no treatment. Through qui tam lawsuits, whistle blowers have stopped harmful practices that endanger the health and lives of Medicare, Medicaid, Tricare and VA patients.
For more information, read my prior blog on whistleblowers who report fraud.
Contact an Experienced Health Law Attorney to Assist in Whistle blower/Qui Tam Cases.
If you have knowledge of false claims being filed against Medicare, Medicaid, TRICARE/CHAMPUS or any other type of government program, please contact us, and we will be happy to assist you. Our law firm represents health professionals and health care organizations almost exclusively. Yet, we have been involved in a number of whistle blower/qui tam cases, in which we represent the person who files the claim.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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