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A 5 Step Guide for Medicare Fraud Whistleblowers

July 19, 2023

If you have inside knowledge of systemic Medicare fraud within your health care organization and want to do something about it then here’s some pointers about how to handle it and potentially be eligible for a whistleblower award. This 5-Step Guide to Whistleblowing outlines some core thoughts and steps for consideration about how to protect yourself and potentially maximize your upside while limiting your downside if you choose to blow the whistle. These steps are not in any particular order and the most important step is probably to hire or at least consult with some of the best whistleblower law firms to see if they’re a fit for your case.  

Step 1 – Understand Medicare Fraud

The first and most important step is to understand what Medicare fraud is. Medicare fraud is defined as any deliberate and deceptive activity aimed at systemically defrauding and obtaining Medicare funds. In layman’s terms, it essentially means defrauding the government and thus pocketing our hard-earned tax dollars. Among the most common types of Medicare fraud are:

  • Upcoding: It is the practice of billing for a more expensive healthcare treatment or service than the one provided.
  • Unbundling procedures: Performing a number of grouped procedures at the same time yet billing for them on separate dates to receive more than the initial bundled payment.
  • Kickbacks – Offering an inducement for Medicare patients or in the case of pharmaceutical fraud, paying directly or indirectly for individuals to prescribe a product.
  • Billing for services not provided– When a provider bills Medicare for services that were never provided to a patient it is fraudulent conduct under the False Claims Act. A doctor or a home health aide, for example, may not bill Medicare for a home health visit that never occurred.
  • Improper self-dealing, in which a physician refers patients to other entities owned by the physician without disclosing the physician’s interest in the derivative companies, which is also known as a Stark Law violation.
  •  Phantom billingIt occurs when healthcare providers bill Medicare for services or equipment that were never given to patients.

If you’re not sure if the conduct constitutes Medicare fraud, then its best to consult with a Medicare fraud whistleblower law firm.

Step 2 – Make a Choice

If you’ve determined that there is Medicare fraud transpiring, you need to weigh in your options whether you want to report it or not. The choice is ultimately yours but it’s crucial to understand what happens if you report it or not. If you’re not part of the solution, you may be considered part of the problem and if and when the government starts investigating the matter you may have to pay to hire a lawyer to defend your rights, instead of utilizing a contingency based attorney to advance your rights and the rights of the taxpayers by filing a False Claims Act (FCA lawsuit, the statute that combats Medicare fraud.  Timing is important because of a rule known as the First to File rule in FCA litigation.  If you choose to keep the information to yourself and not report it, and then someone else reports it using a different whistleblower law firm, that person’s case will be the original case if you’re complaining about the same thing and you may go through the whole litigation and not be entitled to any compensation.  

31 U.S.C. § 3730(b)(5) states:

When a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.

This section of the United States Code means that subsequent whistleblowers may be out of luck on already-filed qui tam claims, so filing in a timely manner is critical if you intend to file at all

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Step 3- Consult with and Hire a Whistleblower Law Firm

It’s integral to speak with a whistleblower law firm that focuses their practice on filing False Claims Act litigation as this area of law is complex and has many landmines and a firm that’s been through it before can help guide you through experience not just academia. Look for a firm with a track record of success in protecting whistleblowers. Oftentimes, successful qui tam law firms have former Department of Justice and/or former FBI Special Agents as these cases interface secretly with the DOJ and former staff from there can help guide you through some of their processes.  Please note, in contrast to some of the politicization of the DOJ that you may have read and formed an opinion on in recent years, combatting health care fraud is apolitical and regardless of your opinion of the DOJ, the case must go through them.  From our experience the lawyers fighting health care fraud in the DOJ are dedicated to those principles and their activities do not overlap with some of the higher profile cases in other areas.  

If you’re seeking to work with the best whistleblower law firm for your case, questions to ask are whether the firm has a whistleblower team, and the extent of their experience, responsiveness and whether they’ve ever handled a matter similar to yours and if so, what results can they share, if any. If you are going to invoke the False Claims Act, hiring a False Claims Act law firm is essential, since the law does not permit you to file the matter pro se, meaning without an attorney. Hiring a whistleblower law firm has numerous benefits, the most important of which is that they are there for you and can help steer you away from potential problems. Most law firms operate on a contingency basis, which means they are not paid unless they win your case, which can take some time. 

Step 4 – Report the Fraud through the False Claims Act 

Reporting Medicare fraud is critical to preserving the program’s integrity and preventing future fraud. If you suspect Medicare fraud, you can report it to the appropriate government agencies; however, if you want to be eligible for a whistleblower award under the False Claims Act, you must file your claim with the help of a whistleblower law firm that has experience litigating Medicare fraud cases. 

Step 5 – Try to Maximize the Whistleblower Award if Successful

Right out of the gate there’s certain things you can do to maximize your chance of success and certain things that may immediately derail your case.  Filing the case correctly, which is confidentially under seal is essential and if you mess that up your case may end before it begins.  You need to serve the correct parties and NOT serve the defendant, which is different from most cases in federal court.  During the entirety of the process you will be graded on your candor, your forthrightness, and your responsiveness.  Before filing your qui tam counsel can assist to make sure you lawfully gather the right information that you normally have access to, in order to bolster your case.  Your counsel must be responsive to the government as well, so a firm that’s overly busy and can’t dedicate enough resources to your matter may inadvertently derail your whistleblower reward, as well as the case in chief Under the False Claims Act, whistleblowers who report Medicare fraud may be eligible for whistleblower rewards ranging from 15% to 30% of the total amount recovered. If the government intervenes it is only up to 25%, but that’s deceptive in terms of potential recovery, as the average government intervention is $13 million in contrast to $3 million for a non-intervention, so although you may receive a higher percentage without intervention, you will generally receive a lower dollar amount. 

To be eligible for a whistleblower reward for Medicare fraud, you must have firsthand knowledge of the fraud and be the first to report it to a whistleblower law firm, preferably one with experience in this area and the ability to collaborate seamlessly with the Department of Justice