False Claims & Qui Tam
Knowledgeable Attorneys for False Claims & Qui Tam Defense
Under the False Claims Act, private citizens can compel federal inquiries into health care providers’ billing practices through the initiation of qui tam lawsuits. Also known as whistleblower claims, these legal proceedings are designed to aid in the government’s fight against fraud involving Medicare, Medicaid, Tricare, and other benefit programs. Unfortunately, it does not take much to initiate a qui tam lawsuit, and the ensuing investigations can lead to costs, business interruptions, and civil or criminal penalties for unsuspecting providers.
For service providers and companies in all sectors of the health care industry, qui tam lawsuits under the False Claims Act (FCA) present significant risks for sudden and unexpected exposure to federal inquiries and the potential for civil or criminal penalties. While the FCA’s qui tam provisions are intended to encourage members of the public to report known instances of fraud under government contracts and involving benefit programs such as Medicare, Medicaid, and Tricare, the ease of filing and the financial incentives for whistleblowers (also known as “relators”) has had unfortunate consequences. These include innocent providers often finding themselves being named as potential targets for investigation by the Department of Justice (DOJ), or the Department of Health and Human Services’ (HHS) Office of Inspector General (OIG).
For whistleblowers, the incentives to file qui tam lawsuits can be substantial. For health care providers facing qui tam litigation, the consequences can be devastating. This imbalance has resulted in numerous instances where individuals claiming to be whistleblowers have filed qui tam actions hoping for a payout, while lacking adequate evidence to support criminal charges or civil enforcement under the False Claims Act. Indeed, many FCA investigations are the result of disgruntled former employees seeking retribution against their former employers. Since the filing requirements for qui tam lawsuits are fairly minimal, filing a lawsuit is often seen as an effective way to exact a toll on a former employer.
Despite these factors, health care providers need to take all qui tam lawsuits and False Claims Act investigations extremely seriously. A qui tam lawsuit is not something to be ignored, no matter how baseless the relator’s claims may seem. The federal government has an obligation to investigate relator claims that have a sufficient suggestion of merit, and even unintentional violations of the FCA can lead to civil enforcement, civil monetary penalties, and the potential for exclusion from Medicare and other health care benefit programs.
Qui Tam Litigation Attorneys Representing Health Care Providers Nationwide
With decades of combined experience as DOJ attorneys and health care fraud defense lawyers, the attorneys at Oberheiden, P.C., offer unparalleled representation for providers facing qui tam investigations and lawsuits under the False Claims Act. With our firm’s focus on health care fraud defense, we are capable of helping clients with the goal to defeat whistleblower claims and resolve qui tam lawsuits without civil or criminal liability. We have significant experience dealing with both the technical requirements of the False Claims Act and the substantive provisions of the nation’s health care laws, and we take an exhaustive approach to identifying all potential bases to challenge whistleblower allegations.
Common Allegations in Qui Tam Litigation Under the False Claims Act
The False Claims Act prohibits health care providers from submitting “false and fraudulent claims” for federal program reimbursement. Under the FCA, providers can face both civil and criminal penalties, with proof of intent being required in order to establish criminal culpability. Some of the most-common allegations in qui tam lawsuits that have the potential to lead to civil or criminal prosecution include:
- Billing for services that were not performed or for equipment or supplies that were never ordered (commonly referred to as “phantom billing”)
- Billing for services, equipment, or supplies that were not medically necessary
- Double billing, upcoding, and other forms of coding fraud
- Falsifying patient records or billing records
- Offering or accepting kickbacks, referral fees, bribes, or other unlawful forms of compensation or remuneration
- Providing physician certifications for medically-unnecessary services or supplies
- Providing physician certifications that are forged or fraudulent
When facing a qui tam lawsuit, it is important to engage with the government attorneys who are involved in the case as quickly as possible. This early intervention is critical, as convincing prosecutors not to take the case is the best and most certain way to avoid civil or criminal penalties. While relators can still pursue their claims if federal prosecutors choose not to intervene, the chances of a qui tam lawsuit being successful are significantly reduced when government attorneys have assessed the allegations and determined that there is not sufficient evidence to establish a violation of the FCA.
Another key strategy in qui tam litigation is to aggressively attack the relator’s credibility. As we mentioned above, relators are often former employees or other individuals who have a personal interest in doing harm to the health care provider accused of federal health care law violations. If we can show that the impetus for the lawsuit is a desire to harm your company and not the discovery of evidence of false claims, this will often convince the prosecuting attorneys that the case should not move forward.
Qui Tam Litigation Under the False Claims Act: FAQs
Q: Do I need to hire a law firm to represent me during my FCA investigation?
Yes. A qui tam lawsuit is a formal legal proceeding that starts with the relator filing a complaint in federal district court. Government attorneys (who will most likely have significant experience in cases involving health care fraud) will review the complaint, and they will determine if the relator’s allegations warrant an investigation. If they determine that an investigation is warranted, you will need your legal representation to deal with the investigators and prosecutors on your behalf (in addition to responding to the complaint in court). You will also need your defense team to help you execute a strategy for avoiding the potential for financial liability, program exclusion, incarceration, and other penalties.
When you engage the health care fraud defense team at Oberheiden, P.C., for your qui tam case, we will:
- contact the prosecutor’s office in order to gain a clearer understanding of the allegations against you.
- determine whether your case is civil or criminal in nature.
- help you understand your potential exposure in light of the relator’s allegations and the nature of your case.
- provide you with the information and tools you need to avoid mistakes that could harm your defense.
- assess all available defenses in order to develop a coordinated and comprehensive defense strategy.
- seek to resolve your case as quickly and favorably as possible.
Q: What are some potential defenses to alleged billing violations under the False Claims Act?
While the FCA includes broad prohibitions designed to protect government benefit programs such as Medicare, Medicaid, and Tricare, there are still numerous potential defenses to both civil and criminal liability. These defenses can be summarized as:
- Lack of criminal intent Even if someone within your business or practice submitted an improper claim for reimbursement, if the government cannot prove criminal intent, it cannot establish criminal responsibility. In order to mitigate any potential exposure, we will seek to demonstrate that, even if you may have submitted a false or fraudulent claim, your submission does not warrant federal prosecution.
- Evidentiary defenses If the government cannot prove all elements of an FCA violation, then you do not deserve to face charges. By poking holes in the government’s case and challenging the relator’s credibility, we can seek to convince the government that it does not have sufficient evidence to establish a violation of the law.
- Statutory defenses The False Claims Act includes a variety of safe harbor provisions and exceptions that can insulate providers from civil or criminal liability. Oftentimes, these key provisions of the FCA can go overlooked during qui tam investigations, and our attorneys will seek to ensure that you are not unfairly prosecuted under the law.
- Constitutional defenses As the target of a federal investigation, you have rights under the U.S. Constitution. If federal investigators or prosecutors have violated your Constitutional rights, our attorneys’ strategy would be to use their violation to exclude evidence from your case with the goal to prevent charges from being filed.
Q: What should I look for when choosing an attorney for my qui tam case?
When seeking legal representation for qui tam litigation, it is critical to choose a law firm with attorneys who have specific and substantial experience in federal health care fraud defense. Attorneys who practice in federal court but lack specific health care law experience may not be able to efficiently identify issues (such as key safe harbor protections) that are relevant to your case. Furthermore, health care compliance lawyers often will not have the skills and background necessary to effectively communicate and negotiate with federal prosecutors. At Oberheiden, P.C., each of the attorneys on our health care fraud defense team offers their extensive experience in Medicare and other benefit program-related FCA investigations.
Q: How much can whistleblowers collect for referring cases to the OIG or DOJ?
The substantial compensation available to whistleblowers is another driving factor behind a large number of qui tam lawsuits targeting health care providers. Relators can receive between 25 and 30 percent of the amount recovered by the government; and, in many cases, this can amount to tens of millions of dollars. For example, in one recent case, two individuals received an astonishing $59 million whistleblower award as a result of a $785 million Medicare fraud settlement.
Q: What else do I need to know about qui tam lawsuits targeting health care providers?
As a health care provider facing a qui tam lawsuit, the most important thing to know is that acting quickly and aggressively is key to establishing a successful defense. The sooner you can intervene in the case, the sooner you can begin to raise questions about the relator’s motives and begin poking holes in the relator’s allegations. When you schedule an initial consultation at Oberheiden, P.C., our health care fraud defense lawyers will strategize with you to develop an immediate plan of action.
Experienced Legal Representation for Health Care Providers Facing FCA Investigations
When facing a qui tam lawsuit, it is critical to have experienced legal representation on your side. At Oberheiden, P.C., we have represented the following types of entities in False Claims Act investigations with the result that our client faced no civil or criminal liability:
- Durable Medical Equipment (DME) Companies
- Laboratory Groups
- Management Services Organizations (MSOs)
- Physician Syndications
- Other Health Care Service Providers
When your business and your freedom are on the line, you need to feel absolute confidence in your choice of legal representation. To find out how the attorneys at Oberheiden, P.C. can help you; schedule your free initial consultation today.
Contact Oberheiden, P.C., about Your False Claims Act Investigation
Oberheiden, P.C., is a federal law health care fraud defense firm that represents providers across the nation in False Claims Act lawsuits and qui tam litigation. If you would like to speak with one of our attorneys about your case, we encourage you to contact us promptly for a free consultation. To schedule an appointment, call (888) 452-2503 or submit your case online now.