Do you know about illegal billing or fraud at (1) your work, (2) by one of your family’s medical providers, or (3) through any other interactions that you have where someone or some company receives government funding?
Then, you might have a False Claims Act, 31 U.S.C. §§ 3729 – 3733 (“FCA”) case (also known as a qui tam) if the billing involves federal money, a state False Claims Act case if the case involves state funds, or both if there is joint funding like Medicaid. You should certainly investigate whether you should report it to the proper authorities. Fraud and illegal billing are wrong, costs taxpayers a lot of money each year, and if it is happening at your work, you could be on the wrong side of a government investigation. Plus, if you report the fraud, you can receive a finders’ fee or share of whatever the government recovers.
Here are five tips to remember when you know about illegal billing or fraud:
1) Get an Experienced Attorney
You will need an attorney who practices in the False Claims Act (FCA) or whistleblower law. In fact, depending on what you are reporting, you must have an attorney. As the United States Court of Appeals for the Second Circuit explains when filing an FCA case, “we conclude that they [individuals] are not entitled to proceed pro se [a fancy way of saying without an attorney].”[1]
Do your research on who to meet with and possibly hire. Properly filing and prosecuting FCA matters, or other whistleblower programs, is complicated work that is full of pitfalls. As Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” An attorney who has not worked on an FCA matter before is likely to be unclear about the process and will inevitably fall into the FCA’s pitfalls. Getting an experienced lawyer should alleviate this concern.
2) The Seal and Your Secret Agent Status
All FCA matters are filed under seal until the court unseals them, often at the Government’s request. Do not go to the press or try to negotiate with a defendant prior to or at any time while the case is sealed. Violating the seal can tip off the defendant and greatly undermine the Government’s ability to investigate the case. “The mere possibility that the Government might be harmed by disclosure is, in fact, the point of the [the seal] requirement.”[2] A guaranteed way to demonstrate to law enforcement officials that you cannot be trusted is to violate the seal by talking to anyone. This puts those officials at a disadvantage and in an adverse position to you.
3) File Your Non-FCA Claims with the FCA Complaint
If you have any other claims against the defendant, such as you are an employee who was fired wrongfully, file your personal claims in the underlying FCA matter so they stay under seal. You want to avoid having a concurrent proceeding where the defendant has the opportunity to ask you questions, whether in a deposition or otherwise, that could reveal your FCA case while it is under seal. Simple questions from a defendant’s attorney, such as “list all court filings you have participated in,” can lead to huge complications because you have to answer the question but not reveal that an FCA matter has been filed under seal. In sum, if you have weak, personal claims but strong whistleblower claims, you may want to forget the personal claims altogether.
4) Gather Appropriate Documentation
The Government will want evidence of the fraud and will not just take your word for it. If you have normal access, especially within your normal duties if you are an employee, make copies or take pictures of documents that support that the fraud is occurring. Do not, however, go through and copy a server or documents outside of your normal work duties. Also, you should never give your attorney something that the company attorney wrote as that information could be attorney-client privileged information.
If possible, get documents that show detailed and specific examples of false submissions to the government such as billing statements or patient records. This will make the government interested in your case and stop it from getting dismissed.
5) The Dr. Evil One Million Dollar Rule
In Mike Myers’ 1997 comedy, Austin Powers: International Man of Mystery, the villain, Dr. Evil, states that “we hold the world ransom for . . . ONE MILLION DOLLARS!” To which his henchman states, “Don’t you think we should ask for more than a million dollars? A million dollars isn’t exactly a lot of money these days”[3] ― completely true. But one million dollars should generally be the rule of thumb for going forward on whistleblower cases. Practically speaking, these cases take significant time and effort, and while there is no written U.S. Justice Department policy, it has been our experience that the Government is generally not interested in using its limited resources to pursue FCA matters worth less than one million dollars.
Now, you should be well prepared to get a meeting with an attorney to see if you have a case. Good luck.
[1] United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2nd Cir. 2008).
[2] United States ex rel. Summers v. LHC Group, Inc., 623 F.3d 287, 297-298 (6th Cir. 2010) (emphasis in original)
[3] See Memorable quotes for Austin Powers: International Man of Mystery, http://www.imdb.com/title/tt0118655/quotes (visited Nov. 5, 2024).
