While most healthcare employers follow the law, some do not and instead engage in fraudulent campaigns against the state or federal government to wrongfully obtain funds they are not entitled to receive. Employees who come forward to report their employers for engaging in healthcare fraud help to save taxpayer money by assisting with the government’s investigation and prosecution of their employers. The False Claims Act protects whistleblowers who report Medicare and Medicaid fraud and provides incentives to them when their reports lead to the recovery of ill-gotten funds. Whistleblowing in healthcare helps the government to recover millions of dollars every year. The whistleblower attorneys at Swartz Swidler help people file whistleblower claims and protect them from retaliation.
What Is Medicare Fraud?
Fraud amounting to whistleblower Medicare fraud happens when an organization engages in a scheme to request reimbursements from Medicare that it is not entitled to receive, pays kickbacks to get Medicare patients, engages in self-dealing, or fails to return funds to the government that the organization improperly received. Medicaid fraud involves the same types of conduct targeted at state Medicaid programs. If you believe your employer is routinely overbilling Medicare or Medicaid for services it provided or for services that were never provided, you should talk to a Medicare whistleblower attorney about your next steps. Reporting your employer’s healthcare fraud can help to protect the integrity of the healthcare system, the welfare of patients, and taxpayer money.
Common forms of Medicare fraud include the following:
- Submitting bills for services that were never provided
- Engaging in self-dealing
- Paying kickbacks for referrals of Medicare patients
- Billing for unnecessary items or services
- Upcoding
- Accreditation fraud
- Pharmaceutical fraud
The Social Security Act established the Medicare program and is a federal healthcare program for disabled people, people with end-stage renal disease, and those who are 65 or older.
Several other federal healthcare programs might also be impacted by fraud, including the Federal Employee Health Benefits Program, CHAMPVA, Tricare, Triwest, and others. All of these programs fall under the False Claims Act and its whistleblower provisions.
A sizeable percentage of the federal budget is set aside for healthcare programs, including Medicare. Unfortunately, around 10% of the annual amount is lost to fraud, amounting to billions of dollars each year that should be provided to care for elderly and disabled citizens. Because of this, most False Claims Act lawsuits involve healthcare fraud. In the fiscal year 2022, the U.S. Department of Justice reports that False Claims Act settlements amounted to $2.2 billion, with $1.7 billion involving healthcare fraud. More than $1.9 billion of the $2.2 billion recovered by the government came from whistleblower claims. Since the False Claims Act was strengthened by Congress in 1986, the government has recovered more than $72 billion under this law. If you have insider information that the healthcare organization you work for is engaging in healthcare fraud, you might have grounds to file a claim and should speak to a Medicare fraud lawyer at Swartz Swidler about your rights.
Incentives for Whistleblowers Who File Successful Medicare Fraud Claims
The False Claims Act allows whistleblowers to file lawsuits on behalf of the government against organizations that engage in Medicare fraud. To provide an incentive for people to come forward, the government offers rewards for those whose information leads to successful recoveries. However, few people who decide to blow the whistle do so because of the incentives. Instead, they want to take action after witnessing extensive fraud committed by their employers because of the immorality of their conduct. No matter what your motivation for considering a whistleblower lawsuit is, you might receive a reward if your claim is successful. In some cases, this reward can be significant. Medicare fraud falls under the False Claims Act while Medicaid fraud falls under similar state laws. Under the False Claims Act, there are qui tam provisions that entitle a whistleblower to a portion of the taxpayer funds the government recovers. This percentage is called the relator’s share. The percentage you might recover as a whistleblower who reports Medicare fraud will depend on whether the government intervenes in your case. The percentage will be determined through negotiations or litigation with the government.
When the Government Intervenes in a Whistleblower’s Qui Tam Lawsuit
If you decide to pursue a whistleblower claim against your employer, your attorney will file a complaint under seal with the federal court and serve copies on the U.S. Attorney’s Office. Either the U.S. Attorney’s Office or the U.S. Attorney’s Office will investigate your claim. The employer will not receive a copy of your complaint and won’t be told that you filed it. The government’s investigation can take several years as it works to gather information from relevant agencies, conduct interviews, gather evidence, serve subpoenas, and build its case.
Once the investigation is completed, the government will then decide whether to intervene in your case. If it intervenes, this means that it will take over the responsibility for litigating your claim against your employer. In most cases, this will mean that the government negotiates a settlement with the defendant. However, some companies try to fight the claim in court instead. If the government intervenes and recovers a settlement or judgment, the whistleblower will receive a percentage of the total amount recovered, which will range from 15% to 25%. If the case goes to trial, the damages will be tripled, and monetary penalties will also be assessed against the employer. All of these amounts will be subject to the percentage to which the relator is entitled. Your private attorney will negotiate with the government to determine your share and might engage in litigation if necessary.
What Happens if the Government Decides Not to Intervene?
The government will notify you if it decides not to intervene in your case following its investigation. You will then have the option to step into the government’s shoes and litigate the case without the help of the government. You shouldn’t decide whether to go forward with your lawsuit when the government declines intervention without talking to an experienced Medicare whistleblower lawyer. These types of claims can be exceedingly complex, expensive, and lengthy and shouldn’t be handled without legal assistance.
If you and your attorney successfully recover money after litigating a Medicare fraud case that the government declined to intervene in, you will receive a higher share of the total recovered amount that will range from 25% to 30% of the total recovery. This is because of the risks that are associated with litigating claims under the False Claims Act. In most cases, however, it is still beneficial to whistleblowers to have the government intervene because the resolution will likely be faster and larger, and the government will bear the high costs of litigating the case.
How the Relator’s Share Percentage Is Determined
Once a case is negotiated or litigated, the U.S. Attorney’s Office and the U.S. Department of Justice will follow specific guidelines to decide the percentage share to offer the relator. If the government intervened, it will typically start at 15% and then consider the following relevant factors when deciding whether to increase the percentage:
- Whether you participated in the fraud scheme
- How long it took you to come forward with the information
- Whether you attempted to stop the fraud
- Whether you made an internal report about the fraud
- If the fraud scheme also involved a safety issue
- How extensive the fraud scheme was
- The assistance that you and your attorney provided during the investigation and litigation processes
- Whether the government was aware of the fraud before you reported it
- Whether the case went to trial
- The size of the recovery
- The impact that filing the action had on you
Regardless of the factors considered by the Department of Justice when determining the relator’s share, your attorney can negotiate to obtain a higher share for you. The factors might be applied by different U.S. Attorney’s Offices differently, which means that deciding where to file your claim can also be important. Your attorney can help you make this decision and negotiate to try to recover a higher percentage for you. The relator’s share was expressly increased by Congress when it strengthened the False Claims Act, which means that it should be negotiable and challengeable in court if the government relies on an irrelevant factor to offer a lower percentage.
Factors That Might Lead to a Lower Whistleblower Reward
If the court finds that you initiated and planned the violation of the False Claims Act, it can reduce your percentage of the recovery to less than 15%. The court must consider the role you played in advancing the case and any circumstances surrounding your employer’s violation of the law. However, this law is not meant to incentivize people to plan fraud schemes to turn around and blow the whistle for the purpose of collecting a reward. It is also not intended to serve as a golden parachute if you are an executive who was fired after engaging in misconduct at your former company for years. If the basis of your claim was public knowledge, the court could lower your percentage down to 0%. This rarely occurs because the government typically won’t accept a whistleblower complaint when the information provided is not unique. This means that the government doesn’t reward people who try to be the first to file a case by racing to the court after they saw a report on the internet or in the news.
Can You Get a Reward Without Filing a Lawsuit?
Many whistleblowers consult attorneys after they have already filed internal complaints about the fraud occurring at their companies. They might have already spoken to the government or called a hotline. They might later learn that they could have received compensation once they have consulted an attorney. While it might seem unfair, you must file a qui tam lawsuit before the government files its own. Even if you worked closely with the government for years during its investigation and risked your career, you won’t be entitled to a reward if you didn’t file a lawsuit or start an administrative action before the government settles the claim without filing a case or before someone else filed a lawsuit. If you wait to talk to a Medicare whistleblower lawyer until after you learn that the government recovered a substantial False Claims settlement based on your information, the attorney will not be able to help you recover payment for the help you provided. If you are already assisting the government, you should reach out to Swartz Swidler immediately to learn about your rights. Even if you didn’t want to profit from blowing the whistle, you should be rewarded for your efforts if your actions help the government to recover money.
How a Whistleblower Lawyer Can Help
When you are dealing with the government and reporting Medicare fraud, you likely believe your contributions are more valuable than the government might. It is critical for you to speak with an experienced Medicare fraud lawyer to understand your rights and protect them. An attorney can assess the information you have and help you determine whether you should move forward with a claim or whether it might be best to avoid doing so. Because of the cost of litigating qui tam actions and the risks involved, a lawyer might tell you that pursuing a claim is not worthwhile when the amounts involved are not substantial.
If the attorney agrees to accept representation and believes you have a valid claim, they will help you determine whether the benefits of pursuing the action outweigh the potential risks. They can help you throughout the process, including filing the complaint, working with the government during its investigation, and representing you in court if the government declines to intervene. Finally, if the government recovers a settlement or jury verdict based on your information, or you successfully win your lawsuit, your attorney can negotiate the highest possible percentage for your share of the money recovered by the government.
Contact a Medicare Whistleblower Attorney
If you think you have grounds to file a Medicare whistleblower lawsuit, you should talk to our experienced qui tam lawyers. Contact us today to learn more about the process and your legal options by calling us at (856) 685-7420.
