October 11, 2022
One of the most common types of fraud committed against state and federal government – and one that is frequently prosecuted by enforcement agencies – is that of Medicaid and Medicare fraud. There are a number of state and federal statutes that create civil and criminal penalties for engaging in health care fraud, but two whistleblower statutes – the federal False Claims Act (FCA) and California False Claims Act (CFCA) – are of particular relevance to those private individuals who have knowledge of health care fraud being perpetrated against the government by their employers or others in the industry.
Both the FCA and the CFCA allow private individuals to pursue whistleblower claims against doctors, hospitals, pharmaceutical companies, and other health care organizations that defraud the government by obtaining Medicare and Medicaid reimbursements to which they are not entitled. The civil penalties for such violations are steep, and the FCA and CFCA reward whistleblowers who pursue successful whistleblower lawsuits by providing them with between 15-30% of the total financial recovery in federal lawsuits and between 15%-50% of the total financial recovery in California state lawsuits.
Many individuals however are concerned about the negative consequences of pursuing a whistleblower lawsuit, namely that they will be fired from their jobs for coming forward or suffer other types of discrimination on the job, particularly where the employer is the potential defendant in the FCA lawsuit.
However, both state and federal law provide protections against retaliation for false claims whistleblowers, and employees who may already have been wrongly terminated can pursue additional legal action against said employers. That said, bringing a whistleblower claim is a complex and delicate process, and would-be whistleblowers are strongly encouraged to work with experienced whistleblower counsel in doing so.
Common Types of Fraud in Healthcare
Although it is impossible to pinpoint how much healthcare fraud occurs each year, it is often estimated that tens of billions of dollars in fraudulent reimbursements occur each year through the federal Medicare and Medicaid programs. Such types of fraudulent activity can take the following forms, among others:
- Billing for goods or services that were never provided
- Billing for goods or services that were not necessary
- Upcoding to obtain higher reimbursements for services
- Falsifying the costs of goods or services
- Billing for services that were not authorized, including “off label” use of medications
- Promoting the “off label” use of medications
- Billing for services provided by unauthorized providers
- Billing for services provided to unauthorized beneficiaries
Who Could Be a Healthcare Fraud Whistleblower?
There is no special requirement to bring a health care whistleblower fraud claim pursuant to either the FCA or CFCA. What matters is whether a potential plaintiff has access to sufficient information of fraud to pursue such a claim (note that plaintiffs typically work with experienced counsel to help assemble and assess potential evidence, and, through the litigation process, more such evidence can be obtained).
Oftentimes, the person bringing a health care fraud claim is an insider at the business engaged in the health care fraud, but even an outsider and/or industry observer who comes into knowledge of fraud occurring can bring an FCA suit even if he or she has no connection to the business. Many times, it is doctors, nurses, health care executives, and even administrative staff who have knowledge of fraud who act as successful FCA plaintiffs, obtaining significant financial reward for themselves in the process.
Notably, even if a person participated in the fraud himself, that person may still be eligible to pursue a claim, although that person’s participation may affect the financial reward obtained.
Can an Employer Retaliate Against a Healthcare Whistleblower?
Again, both the FCA and the CFCA include robust anti-retaliation provisions to protect workers who come forward with claims of fraud via a whistleblower lawsuit. Such provisions protect workers not just from being fired for coming forward with a whistleblower claim, but also protect workers from being demoted, harassed, threatened, suspended or otherwise discriminated against in the workplace.
Pursuant to the FCA, if an employee is subjected to such retaliatory behavior as a result of pursuing a whistleblower claim, then the employee can pursue legal action against the employer for reinstatement in the same position, twice the amount of back pay they were denied plus interest, compensation for any special damages they suffered as a result of the discrimination, and attorney’s fees.
Working With an Attorney in Pursuing Your FCA or CFCA Claim
Despite these protections, it is nevertheless critically important to work with experienced whistleblower plaintiff’s counsel in developing, asserting and litigating your claim, both to increase your chances for a successful lawsuit and significant financial reward as well as to protect your rights, interests, livelihood, and reputation while you go through the often lengthy process of pursuing your FCA or CFCA claim.
If you believe you have evidence that could form the basis of a whistleblower lawsuit based on health care fraud perpetrated against the federal or California government, contact our office today to speak with an attorney in a 100% confidential environment regarding the pursuit of your claim.
