A Quick Guide for Whistleblowers: The False claims act

The FCA only covers fraud against the federal government.  Typical FCA cases involve:

  ·      Healthcare Fraud  

            Common Example: A home healthcare provider, hospital chain, nursing home facility, physical therapist, dental office, etc. that double or triple bills Medicare or Medicaid. Healthcare fraud can be committed in a variety of ways, including:  

using incorrect CPT codes to arbitrarily inflate billing;  

• providing care to 3 patients at the same time in a 1-hour session but pretending you did 3 separate sessions and then fraudulently billing Medicaid for 3 hours (this is called “triple billing”); 
• providing medically unnecessary care; 
• inflating minutes and/or implementing a company policy instructing your nurses and care providers to “round up” their time instead of billing actual time;  
• entering “fake time,” meaning not providing a service at all but billing for it.  

·      Military Procurement Fraud   

          Common Example: A private company that contracts with the federal government to build a certain type and quality of military equipment but then intentionally cuts corners and does not build what was promised, without telling the government or receiving permission to modify the terms of the deal.   

·      Research or Grant Fraud 

         Common Example: A college or university researcher who misrepresents the nature of his or her research or his or her background or qualifications in order to obtain a National Science Foundation (NSF) grant under false pretenses.

A “relator” is just another word for whistleblower—a person who gets paid for exposing fraud. Pronounce the word as it is spelled, making sure to enunciate the long “a.” A common mispronunciation is saying “realtor.” Think about FCA relators as people who relay information about fraud to the government. 

Yes. You can (and most likely will) get fired for complaining about fraud or trying to stop it. However, if the fraud involved is fraud against the government—for example, fraud against Medicaid—your complaints or efforts to try and stop the fraud are “protected activity” under the False Claims Act. These provisions are designed to protect whistleblowers from retaliation by their employer for trying to stop the fraud taking place. Keep in mind, however, that your employer will always have a different story. Even if you complained about the fraud and got fired, your employer will likely have a “file” on you evidencing what they call your “misconduct,” and will use that as a pretext to justify your termination. Successful retaliation cases are possible but each case is highly fact-dependent. The best thing to do is to document everything and seek a confidential consultation before you quit or get fired so that a lawyer can assess the strengths and weaknesses of your case.

Filings are entirely confidential. FCA whistleblowers, aka "relators", initially file their case "under seal," meaning the documents accusing your employer of fraud are filed privately with the Court and served only on the federal government. This means the employer does not know that the whistleblower has filed a lawsuit until the documents are "unsealed," which usually happens about a year or more later. 

The government has to decide whether it wants to (1) intervene in your case, or (2) decline intervention. If the government intervenes in your FCA case, the government will use its own government lawyers to handle the bulk of the litigation. Having the weight of the U.S. government and its resources behind you is a significant advantage for relators.

If the government declines to intervene in your case, you can still pursue it yourself but your own lawyer would have a tremendous amount of work to do--typically hundreds or even thousands of hours of attorney time--and will incur a significant financial risk should you lose at trial. For this reason, many firms will not pursue claims that are declined by the government.

Call a whistleblower attorney who can give you an honest assessment of the strengths and weaknesses of your case. Because of the tremendous risks involved, a proper and thorough FCA assessment up front is critical. 

Yes. Two people can file the same lawsuit together as whistleblowers and will then split the recovery, assuming the lawsuit is successful. The issue with talking to other people at work about the fraud you have discovered is that there is nothing stopping one of your coworkers from quietly finding their own lawyer and filing their own lawsuit separately, before you file. If that happens, your coworker would be the first-to-file instead of you.