Medicare Fraud Whistleblower Tips Every False Claims Act Whistleblower Needs to Know - Brown, LLC

Medicare Fraud Whistleblower Tips Every False Claims Act Whistleblower Needs to Know

July 25, 2023

Identify the False Claim

In a Medicare fraud case, it is critical to identify the actual “false claim” or claims that are being submitted and have been paid by the government. In order to bring a Medicare fraud case under the False Claims Act it’s almost self-evident, but some people accidentally ignore articulating the actual payment by the government and/or the billing to the government, which could be fatal to the case, especially in certain circuits. The false claims refer to providing the government with inaccurate or misleading information in order to receive payment, however inadvertent sporadic inaccuracy is not necessarily remedied under the False Claims Act, instead they look to systemic intentional defrauding that in aggregate is generally at least several hundred thousand dollars. Billing for services not rendered, inflating costs, or misrepresenting the medical necessity of procedures are some examples of Medicare fraud, but the fraud can be extensive especially if it involves pharmaceutical fraud in which the government pays for a product that doesn’t comply with CGMP, or falsification of an NDA (new drug application). Surprisingly, some of the bigger cases involve kickbacks where the provider or drug manufacturer provides an incentive to prescribe or obtain patients and the false claim then is the actual process of the kickback under the Anti-Kickback Statute (AKS), if Medicare funds are implicated.

Don’t Interview Witnesses Yourself – Don’t Be a Cowboy or Cowgirl

Someone who represents themselves in the law has a fool for a client and actually under the False Claims Act it’s specifically prohibited to file a case by oneself.  Similarly, it is best to avoid conducting interviews with potential witnesses on your own when building a case, because you may be viewed as the wrongdoer and wind up in HR purgatory. If the investigation is not handled properly then you run the risk of allowing the defendant to cover it up, or worse, blame it all on you.  Also, the False Claims Act contains a provision known as the “first to file” rule, which states that the first person to file a case based on the same information has rights to the whistleblower award if any, so if others are tipped off that you’re thinking of filing a case then they may try to retain the best whistleblower lawyer to file their claim ahead of you. Before conducting an investigation, consult an experienced whistleblower law firm to protect your rights and guide you about what investigation, if any, you can lawfully conduct. They can also advise you on the best ways to gather evidence while maintaining the credibility of your claim.

Consider the Magnitude of the Fraud – Money Matters

While every case of Medicare fraud deserves attention, government resources are limited. Agencies responsible for investigating fraud prioritize larger cases where the financial impact is significant. Typically, cases involving fraud exceeding $5 million are more likely to gain the attention and resources needed for a successful investigation and under DOJ guidelines will trigger Main Justice’s involvement, in contrast to just being handled by the regional United States Attorney’s Office. However, this does not mean that smaller cases should be dismissed. Regardless of the scale of the fraud, it is crucial to consult with a whistleblower firm to understand your rights and explore potential avenues for action. They can help assess the viability of your case and provide guidance on the best course of action.  While money matters, other considerations may also come into play, for example the government’s priorities in combating PPP Loan Fraud or if the Medicare fraud implicates actual patient harm or potential harm there’s a chance of government involvement even if there’s a lower dollar amount.  

Have Realistic Expectations Regarding Results and Timing

When pursuing a whistleblower case, it is critical to have realistic expectations. While fraud against the government is pervasive the government only intervenes in a small percentage of reported cases. Even if the government takes action and obtains a settlement or judgment, your financial reward as a whistleblower will typically be a percentage of the total amount recovered from 15% to 25%. This whistleblower reward percentage is intended to encourage people to come forward and expose fraud. If the government does not intervene then the whistleblower award percentage escalates to 20%-30%, however, on average the settlement amount is lower.

Consulting with a whistleblower attorney can provide you with a realistic assessment of the potential damages and whistleblower award to which you may be entitled. It is critical to recognize that whistleblower litigation is frequently a lengthy process that requires patience and perseverance. Prepare for possible delays and setbacks and know it’s a long road that’s often stealthy and with the government when they want something they want it right away, but if you need something, you can expect to wait. While the government is investigating Medicare fraud, they may be tight lipped as there’s potential criminal implications as well, which is another thing to review with your whistleblower counsel.

Seek Professional Advice from a Whistleblower Attorney

It can be difficult to navigate the complex legal landscape of whistleblower cases. Compliance with the False Claims Act’s pre-filing requirements, as well as filing the case under seal, are critical steps in protecting your rights and increasing the likelihood of a successful outcome. Failure to correctly follow these procedures may jeopardize your ability to recover compensation and land you in trouble. Furthermore, even after you have filed your case, there are numerous legal considerations and strategic decisions that can have a significant impact on the outcome of your case. You can benefit from the expertise and experience of a law firm that specializes in whistleblower cases. Look for whistleblower lawyers that are well-versed in the laws, regulations, and procedures involved in these cases and have a focus of their practice on protecting whistleblowers

They can help maximize your chances of success and provide valuable advice on how to navigate the process as they’ve been through it before

Educate Yourself

In some instances, fraudulent practices may become so incestuous they seem normalized within specific industries, such as healthcare. For example, a medical facility might consistently engage in upcoding procedures, leading others to believe that it is an acceptable practice or that paying for Medicare patients by offering pretext ceremonial positions and titles like “Medical Director” or providing lavish speaking fees and vacations for trivial lectures on pharmaceutical products may constitute an impermissible kickback. However, it is important to note that such actions are unlawful and lead to the taxpayers being ripped off and higher taxes for everyone.  

Educating yourself about the laws and regulations governing your industry is crucial in understanding what constitutes lawful and unlawful practices. By consulting a whistleblower attorney, you can gain valuable insights into industry standards, legal requirements, and what actions may be considered fraudulent. Armed with this knowledge, you can make informed decisions about what steps, if any, to take.

By carefully considering these key points and seeking guidance from experienced whistleblower attorneys, you can navigate the complexities of a Medicare fraud case, protect your rights, and contribute to combating fraud in the healthcare system. Your decision to blow the whistle can make a significant impact in upholding integrity, preserving taxpayer dollars, and ensuring quality healthcare services.