jonathan-perez-409943-copy-300x200Recently, the Supreme Court requested that the Department of Justice (DOJ) file a brief regarding a qui tam or whistleblower lawsuit brought under the False Claims Act (FCA) as regards a clarification of what, in fact, constitutes a “material” misrepresentation under the law. The response from the DOJ is controversial, to say the least.

False Claims Act

The False Claims Act allows private citizens to bring lawsuits against companies for defrauding the federal government. In such a suit, known as a qui tam, or whistleblower action, the person who brings the suit is known as a relator and the government is given the opportunity to prosecute the suit on behalf of the relator, decline to prosecute the action and allow the relator to continue on his or her own, or dismiss the action entirely. One of the requirements of the law and one which is frequently at issue in lawsuits is that of materiality. The Court has said that, in order to be considered as illegal under the FCA, ”a misrepresentation about compliance with a statutory, regulatory or contractual requirement must be material to the Government’s payment decision in order to be actionable.” The law itself defines “material” as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”

joakim-honkasalo-587350-unsplash-copy-300x223Federal law allows for whistleblowers to file lawsuits against individuals or companies that are defrauding the government. A lawsuit of this nature is called a whistleblower or a qui tam lawsuit. These lawsuits are often complex legal matters and specific steps must be taken to help ensure their success.

What is a Qui Tam Lawsuit?

The Federal False Claims Act (31 U.S. Code §3729) is a federal law that allows individuals to file a lawsuit in federal court to expose cases of fraud against the government. The person who files the lawsuit is known under the law as a relator. The law provides that a relator can file a suit and, if successful, the relator can receive up to 30% of the amount that the government recovers.  While it sounds simple on its face, it is a complex process.

max-bender-262783-unsplash-copy-300x199On December 21, 2018, the Department of Justice released its statistics for Fiscal Year 2018 for actions taken under the Federal False Claims Act. The news release listed several notable cases and provided daunting statistics regarding the scope of fraud committed against the government in our country.

Federal False Claims Act

The Federal False Claims Act is a law that allows the government to go after both companies and individuals who file false invoices or claims in order to get paid by the government for services or products. The law also allows “relators” to recover from those who defraud the government as an incentive to citizens to help the government curb fraud and abuse in government programs.  Relators can receive up to 30% of the recovered proceeds through “qui tam” lawsuits.

igor-ovsyannykov-252342-unsplash-copy-300x200The Occupational Safety and Health Act was passed in 1970 and created the Occupational Safety and Health Administration (OSHA) to protect employees from dangerous working conditions and to standardize workplace safety. Over the years, it has been amended many times and now includes provisions that protect employees from retaliation from their employers when they either report injuries under the OSHA reporting requirements or if they file a complaint against their employer for a violation of OSHA standards. Many states have a state version of OSHA and, in the case of California, have state laws that prohibit retaliation against whistleblowers, as well.

What Conduct is Prohibited by Federal OSHA Whistleblower Laws?

Simply put, an employee is protected from “adverse actions” if they avail themselves of the rights guaranteed by OSHA. Adverse actions can include:

jonathan-perez-409943-copy-300x200Every day we hear shocking news about the opioid epidemic, from the number of deaths from overdoses to the sheer amount of distribution arrests to the amount of money government is spending to combat the problem. One of the areas that the public may not know about, however, is how much of the problem is being created by dishonest health care professionals across the country through fraud and illegal practices.

The Opioid Epidemic

We are bombarded with statistics about the enormity of scope of opioid use in our country. For example, in FY2016, the Centers for Disease Control and Prevention (CDC) estimated that 42,249 Americans died from opioid overdose in our country.  The Substance Abuse and Mental Health and Services Administration (SAMSHA) estimates that 11.8 million Americans over the age of 12 have abused prescription opioids and heroin in the last year. The federal Department of Health and Human Services announced in September of this year that they have awarded over $1 billion in grants to “help combat the crisis ravaging our country.” Obviously, the problem is incredibly dangerous, incredibly real, and at the forefront of discussion in the US.  What is not as obvious is what role healthcare fraud plays in fueling this problem.

jonathan-perez-409943-copy-300x200A doctor was arrested on December 13, 2018 for improperly distributing opioids to his patients and billing Medicare for the drugs. The doctor now faces 45 federal charges relating to healthcare fraud for not only prescribing illicit drugs to patients but requiring those with insurance to accept injections so that he could bill additional costs to public health programs like Medicare. While this is an extreme example of pharmaceutical fraud, there are numerous smaller incidents of pharmaceutical fraud that take place every day. If you believe your employer or healthcare provider is engaging in pharmaceutical fraud or any type of healthcare fraud, contact the qui tam attorneys at Willoughby Brod immediately to report the fraud.

What is Pharmaceutical Fraud?

Pharmaceutical fraud involves illegal actions that pharmaceutical companies engage in that violate the False Claims Act (FCA) or California False Claims Act (CFCA) and result in false claims to insurers and Medicare/Medicaid.

daniel-frank-201417-copy-300x200One mistake that many Medicare recipients make is assuming that all their basic medical needs are covered under Medicare. In fact, there are a lot of commonly needed medical services that Medicare does not pay for. By becoming informed about the coverage gaps in your Medicare policy, you are not only preventing yourself from any surprises when you receive your healthcare bill, you are also increasing your ability to detect any fraudulent billing schemes from your healthcare provider or anyone else who tries to tell you that services not covered by Medicare are actually covered. If you do detect any violations by your healthcare provider or employer relating to Medicare billing, contact the whistleblower attorneys at Willoughby Brod immediately.

Dental Care

Even though every individual requires regular dental cleanings, and many Medicare recipients find themselves requiring dentures, Medicare does not pay for these basic dental needs. The only dental care that Medicare may pay for is dental care required while hospitalized as a result of an emergency.

kyle-glenn-629501-unsplash-1-copy-300x200As a whistleblower who has filed a qui tam case, your goal is to convince the government to prosecute your case. However, this is usually not an easy task. In fact, there are many situations in which the government may choose to dismiss your False Claims Act (“FCA”) claim, and the Department of Justice (“DOJ”) has outlined seven circumstances under which your qui tam claim may be dismissed. If you believe you have a strong qui tam claim, contact the qui tam attorneys at Willoughby Brod today to learn more about the strength of your case and your options moving forward.

False Claims Act

Section 3730(c)(2)(A) of the False Claims Act provides the following: “The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.”

jonathan-perez-409943-copy-300x200During this final week of Medicare open enrollment, you may receive multiple calls each day regarding your Medicare coverage. Many of these calls may be scams, and unless you know exactly what to watch out for, these scams can be difficult to spot. Make sure you follow the guidelines below and report any Medicare fraud you detect to the proper agencies. If you believe your employer or healthcare provider is the one committing the fraud, contact the qui tam attorneys at Willoughby Brod to learn how you can report the fraud and receive an award for your tip.

Four Tips for Avoiding Medicare Scams

  1. Do not give out your Medicare number to anyone other than your doctor or someone who should have it.

chris-greenhow-662446-unsplash-copy-300x225While whistleblowers sometimes get a bad rap as “snitches,”the opposite in fact is true. By revealing their employers’ illegal actions, whistleblowers help society in ways that only whistleblowers can. If you have any doubts about whether you should blow the whistle on your employer’s illegal actions, contact the whistleblower attorneys at Willoughby Brod today to learn more about the ways in which whistleblowers help society and the ways in which you can contribute to that cause.

  1. Whistleblowers help citizens save money.

From 1986-2016, recoveries made from whistleblower cases under the False Claims Act alone totaled over $28 billion. That is $28 billion that could have ended up in the hands of fraudsters rather than back in citizens’ pockets. By blowing the whistle on fraudulent acts, whistleblowers not only protect those who are directly harmed by the fraud but also send a message to fraudsters that the actions they wish to engage in are unacceptable and will not go undetected.