david-kennedy-412640-unsplash-copy-240x300Nearly every lawsuit or legal action has a statute of limitations. A statute of limitations is the time limit within which the plaintiff, or person filing the lawsuit, can file a claim. Personal injury lawsuits in California have a statute of limitations of two years. Even criminal cases have a statute of limitations, although these will vary depending on the type of crime committed.

When a whistleblower learns of wrongdoing, he or she also has the right to file a lawsuit, although these are different from personal injury or criminal lawsuits, even though criminal charges and damages could result from them. This has many wondering whether or not there is a statute of limitations on qui tam lawsuits. If there is, has that statute already run out?

The Federal False Claims Act

aidan-bartos-313782-copy-300x200People make mistakes in the course of their job every day. When those ‘mistakes’ are intentionally made by a physician or health care billing administrator, though, they are considered fraud. The U.S. Department of Justice (DOJ) has spent the last few years cracking down on health care fraud, with the help of whistleblowers.

Billing and coding errors are the most common violations under the False Claims Act. The following are the most common ways those in the health care industry come to be under investigation by the DOJ.

Inaccurate Billing Codes

samuel-zeller-360588-copy-200x300Those who are under investigation for health care fraud may face years in federal prison if they are found guilty, or they ay face civil charges that result in much less severe penalties. It is up to the discretion of the federal prosecutor to determine if the case will be criminal or civil. If you have come forward to report health care fraud, how do you know whether those you have turned in will face criminal or civil charges?

Types of Health Care Fraud

It can be helpful to understand some of the basic laws surrounding health care fraud. The following are come key laws that, when violated, can be result in serious consequences:

tim-mossholder-588403-unsplash-copy-300x200The partial shutdown of the federal government has been going on for almost five weeks as of the date of this article. Many government programs have been negatively impacted. This is especially pertinent regarding whistleblower (also known as qui tam) actions since the federal government is potentially involved in so many of the steps of prosecuting a successful lawsuit.  Furthermore, the lack of government funding that has resulted from the shutdown may also increase the potential for more fraudulent acts that are the impetus for qui tam actions in the first place.

Federal Courts

The status of the federal court system is important when considering federal qui tam actions. This is because the lawsuits are based on a federal law, the False Claims Act, wherein a whistleblower (known under the law as a relator) brings a lawsuit on behalf of the federal government in cases in which businesses have brought false claims to the government for payment. As such, these lawsuits are almost universally brought in the appropriate federal District Court. In the San Francisco area, the United States District Court for the Northern District of California is the most frequent venue for filing qui tam actions. Luckily, for relators, at least, on January 11, Chief Judge Hamilton issued an order providing for the continuation of operations under the Anti-Deficiency Act (see the Order here). Simply put, this means the Court will continue to accept filings, hear, and decide cases without interruption and handle new and existing cases as necessary. This means that, for the Court, at least, the business of justice will continue unimpeded.

samson-duborg-rankin-91091-unsplash-copy-300x200Many people are familiar with whistleblower lawsuits (often called qui tam actions) brought under the federal False Claims Act (31 USC §3729 et seq.) but many states have their own version of the law, as well. California has its own version and was one of the first states to promulgate a state false claims act.

California’s False Claims Act

The California False Claims Act (CFCA) was first enacted in 1987. Like its federal counterpart, it was put into place to encourage the public to help control fraud against the government. It does this by rewarding whistleblowers for coming forward and helping prosecute actions against companies or individuals who are defrauding the government by sharing any recovery with the complaining individual (who is called a relator). The two laws are quite similar, although there are important differences between them.

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.