The qui tam (or “whistleblower”) provisions of the False Claims Act serve an important role in the government’s fight against fraud. Unfortunately, they are often abused. And they can expose health care providers and other businesses to significant civil and criminal penalties.
Under the qui tam provisions of the False Claims Act, private citizens (including disgruntled patients, customers, and former employees) can file lawsuits on behalf of the federal government with only basic allegations and minimal evidence of liability. Once a “whistleblower” meets the minimal requirements to successfully initiate a qui tam lawsuit, the government has an obligation to investigate. Upon concluding its investigation, it must decide whether to intervene in the lawsuit or allow the whistleblower to pursue his or her claim independently.
Qui tam lawsuits are civil in nature. When a whistleblower files a qui tam lawsuit, the goal of the lawsuit is to recover money on behalf of the government. In the context of the federal health care benefit programs (i.e., Medicare, Medicaid, and Tricare), this typically means recovering amounts that were improperly billed by a participating health care provider. If the lawsuit is successful, the government can collect civil assessments and monetary penalties and the whistleblower can receive anywhere from 15 to 30 percent of the total amount recovered.
But, while a qui tam lawsuit may be a civil proceeding, it is also possible for a whistleblower’s allegations to trigger criminal charges. If the government’s investigation reveals evidence of intent to commit fraud or other evidence sufficient to warrant criminal charges, then the target of the lawsuit can also be prosecuted criminally with the potential for fines and long-term imprisonment.
Criminal Fraud Charges under the False Claims Act
The criminal provisions of the False Claims Act (FCA) are found in 18 U.S.C. Section 287:
“Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.”
As outlined by the Office of the United States Attorneys, there are three elements of a criminal violation of the False Claims Act:
“Under 18 U.S.C. § 287, the government must establish that the defendant: 1. made or presented a false, fictitious, or fraudulent claim to a department of the United States; 2. knew such claim was false, fictitious or fraudulent; and 3. did so with the specific intent to violate the law or with a consciousness that what he was doing was wrong.”
In order to prosecute a health care provider or other business for a criminal FCA violation, the government must prove each of these three elements beyond a reasonable doubt. If evidence of any element is lacking, then criminal charges are unwarranted; although, the alleged improper claim (or claims) could still support civil qui tam proceedings.
“Intent” is the key distinguishing factor between civil liability and criminal culpability under the FCA. As a result, when facing whistleblower allegations with the potential to lead to criminal charges, a key defense strategy is often to raise questions about the government’s evidence of intent. With this in mind, some of the ways to avoid criminal charges in FCA investigations include:
- Demonstrating that you were not aware of alleged improper billings submitted by administrative staff members
- Showing that you consistently engaged in good-faith efforts to adhere to a comprehensive Medicare compliance program
- Showing that you were unaware that a third-party provider was subject to exclusion or was not in compliance with the applicable billing regulations
- Demonstrating that an alleged “kickback” arrangement qualifies for safe harbor protection under the Anti-Kickback Statute
Federal Defense Lawyers forQui Tam Lawsuits with a Nationwide Presence
In order to present these types of defenses effectively, it is crucial to engage an experienced defense team as early in your qui tam case as possible. From challenging a whistleblower’s motives to presenting countervailing evidence, there are numerous ways to defeat qui tam allegations. But, doing so requires extensive knowledge of the FCA’s civil and criminal provisions as well as the various other federal statutes that can come into play in federal fraud investigations.
The Criminal Defense Firm’s federal defense team has represented thousands of clients in federal investigations, including numerous investigations triggered by whistleblower allegations under the FCA. Our federal defense team’s experience includes successfully representing clients in:
- More than 1,000 health care fraud investigations
- More than 1,000 grand jury investigations
- More than 500 criminal trials
In the vast majority of cases, not only have we protected our clients against facing criminal charges, but we have protected them against facing fraud charges entirely.
When the federal government is investigating you and your practice or business is on the line, this is the type of experience you need in order to stand a fighting chance. If you are facing a qui tam lawsuit, contact us for a free and confidential case assessment and let us put our decades of federal defense experience to work for you.
Contact The Criminal Defense Firm | Federal Defense Lawyers Representing Clients Nationwide
With 12 office locations around the country, our firm is positioned to take action immediately in defense of health care providers and other clients facing federal fraud allegations under the False Claims Act. We can provide your initial case assessment over the phone; if necessary, we can deploy attorneys on an emergency basis to your location anywhere in the United States.
To speak with a federal defense attorney, please call 214-251-4238 or contact us online. We are available 24/7.
Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.