Washington D.C. False Claims Act & Qui Tam Defense
Sophisticated Strategies To Protect Business Owners Against OIG, HHS, and FBI Whistleblower Cases
Washington D.C. attorney Dr. Nick Oberheiden has represented many clients — individuals and companies alike — in False Claims Act cases involving allegations of Medicare Fraud, Medicaid Fraud, illegal kickbacks, health care fraud, pharmaceutical fraud, Stark Law violations, violations of critical environmental regulations involving the EPA, and a variety of other matters.
Nick has avoided criminal charges in 100% of his clients’ whistleblower cases and he enjoys a reputation as go-to defense attorney when it comes to convincing the government not to intervene into plaintiff’s case. Nick is also among the very few attorneys that successfully convinced a United States District Court Judge to dismiss a federal whistleblower fraud case against his client, even though his client was the alleged ringleader of the fraud scheme and all co-defendants in the case were ordered to remain.
If your business is under investigation or if you received correspondence from state or federal authorities such as the Office of Inspector General, the Department of Health and Human Services, the Department of Justice, or the U.S. Attorney’s Office — you should call Nick on his cell phone at 866-Hire-Nick or contact him online to see what defense strategy he would pursue to protect the integrity of your business.
How Does a False Claims Act Investigation Work?
Parties. Plaintiffs (referred to as relators) file whistleblower cases on behalf of the United States claiming that the defendants defrauded and damaged the government. The False Claims Act incentivizes private citizens to report fraud by offering financial rewards in case of success.
Statutes. Whistleblower complaints are brought under the False Claims Act, 31 U.S.C. Section 3730(b). In a health care whistleblower case, for example, relators will typically claim that defendants violated Medicare law or Medicaid rules, the Anti-Kickback Statute at 42 U.S.C. Section 1320a-7(b)(2), or federal Stark Law at 42 U.S.C. Sect. 1395nn. In many instances the alleged covered conduct includes allegations of billing fraud or illegal business relationships.
Agencies Involved. Various agencies oversee (health care) whistleblower cases. Among them are the Office of Inspector General (OIG), the United States Department of Health and Human Services (HHS), agents and case investigators, an Assistant United States Attorney (AUSA) from the local U.S. Attorney’s Office, as well as a representative from the Civil Division of the Commercial Litigation Branch at the United States Department of Justice at the Washington D.C. headquarters.
Dismissal, Settlement or Trial. Depending on the merits of the case and the achievements of the defense team, many whistleblower cases end up being dismissed as meritless. Alternatively, if the government sees merits and intervenes (i.e. enters the case and supports plaintiffs’ theory), the case may result in a settlement with the Justice Department releasing the defendants from monetary claims under the False Claims Act (31 U.S.C. 3729-3733), the Civil Monetary Penalties Law (42 U.S.C. 1320a-7a), the Program Fraud Civil Remedies Act (31 U.S.C. 3801-3812), the Stark Law (42 U.S.C. 1395nn(g)(3)(4)) and other statutes. If settlement fails, the case will go to trial.
10 Things You Should Know About False Claims Act Cases Involving Washington D.C. OIG-HHS
How Do I Know If the Investigation is Civil or Criminal?
One of the most anxious questions every client has in a whistleblower case is to find out whether the allegations are civil or possibly criminal in nature. The answer to that question is not always obvious when the client initially approaches an attorney with a CID or other government subpoena suggesting that the business is under false claims act investigation. However, skilled attorneys will already gain a first impression when analyzing the subpoena and when learning about the circumstances, the history, and the operations of the company. To either get confirmation or to inquire further, the attorney must then enter a line of communications with the case agent and the prosecutor and, while discussing first steps of a resolution, must also inquire about whether there is a so-called parallel criminal proceeding.
What Is a Civil Investigative Demand (CID)?
When the government receives a complaint alleging violations of the false claims act and related statutes, the government has an obligation to investigate the matter. The government can do so in a number of ways (and to different levels of intensity) such as witness interviewing and issuing a so-called Civil Investigative Demand (CID). A CID is a government subpoena issued by the Department of Justice or the Attorney General’s office that requests the recipients to produce specified documents or to appear for an interview at a designated place. CIDs are critical tools for the government to determine if the allegations in the complaint have any merits.
We Received a Subpoena from the Dpt. of Health and Human Services: What Now?
Just like a CID, purpose of a subpoena from the Department of Health and Human Services, Office of Inspector General is to gather documents and information that will assist the Justice Department to determine whether the government should intervene and support plaintiffs’ complaint or not. If your business received any government correspondence such as an OIG-HHS subpoena, you should immediately reach out to attorneys with a proven record of handling these types of complicated cases to make sure that your rights are protected and that the case will not escalate into a criminal case due to poor handling of the subpoena.
Our Business Received Notice from the Department of Justice in Washington D.C. (but We Don't Operate in D.C.): Any Significance?
Nick Oberheiden has argued and defended whistleblower cases locally at the US attorney‘s office as well as before the Department of Health and Human Services and the Office of Inspector General’s and the Department of Justice’s headquarters in Washington DC. Because every whistleblower case is supervised by DC-based government attorneys, there is no per se special significance if your business receives a subpoena straight out of the District of Columbia rather than from a local branch of the Department of Justice.
What Is the Significance of an Expert in FCA Cases?
Experts can make a decisive difference when it comes to case resolutions in FCA matters. After all, the government is trying to establish that you “should have known” that what you did was wrong. Attorney Nick Oberheiden has used experts in a number of whistleblower cases to show that his client’s conduct was perfectly within the norm and within the accepted standard of the client’s industry. With it, Nick will introduce case law to the government’s case that essentially says that when two experts (here: the government expert and the defense expert reasonably and in good faith) disagree, then there can be no fraud. Very powerful legal conclusion!
What Are the Determining Factors for the Government to Intervene or Decline a Qui Tam Case?
The government will consider a number of factors for its decision to intervene or not intervene into a whistleblower case. In general, the government will assess whether the complaint itself is convincing and substantiates the fraud allegations or whether the complaint is a mere Wikipedia-like or assembly-line-style summary of what fraud is all about. Additionally, the government has the tools of subpoenas and interviews of the plaintiffs and potential witnesses to gain insights into the merits of the case. Because the government’s intervention decision can have a big impact on the case, you should make sure your attorneys have the experience to convince the prosecutors not to intervene against your interests.
What Is the Purpose of an Internal Investigation in a Fraud Defense Case?
At its core, any whistleblower case will claim some form of fraud and misconduct within an organization or between different entities. Purpose of an internal investigation is to self-audit the company to explore compliance gaps and mismanagement to signal to the government the importance of compliance and the owners’ intent to do things right. However, internal compliance audits are tricky in a number of ways and should never be handled by inexperienced attorneys as those audits involve highly complex legal questions (partially based on U.S. Supreme Court case law and partially based on a thorough understanding of the attorney-client relationship and its exceptions) that most attorneys will never be expected to address during their careers.
What Questions Should I Ask Before Hiring Someone in a False Claims Act Lawsuit?
Lawyers with true experience will appreciate clients asking tough questions before committing to hiring that lawyer. Every client facing federal investigation such as a false claims act case must understand the severity of dealing with federal law-enforcement and the exposure a client may have in case of a bad defense strategy. Here are sample questions. Ask how many qui tam and whistleblower cases the lawyer has handled, and with what success; ask how often the lawyer avoided criminal charges in False Claims Act investigations; ask what he or she would do in your case and decide whether that sounds right and trustworthy to you.
Can We Switch Attorneys?
Yes, often times businesses, when they receive notice of an investigation, hand over the case to an in-house counsel or trusted outside corporate counsel. After a relatively short period of time, clients may realize that the matter is too specialized and start looking for attorneys with specific experience in defending whistleblower allegations. If you or your business is at a point of doubt or simply wants to obtain a second opinion, feel free to call Nick on his cell phone (866-Hire-Nick) for free and confidential assessment to find out what he would do differently to achieve your goals.
How Much Would It Cost for Nick to Defend Our FCA Case?
Answering the question about legal fees in the abstract is very difficult without knowing more about your business, the fraud allegations, and the stage of the investigation. In general, FCA defense cases can run costly due to the potential exposure and the length it may take to settle or try the case. Clients of Nick Oberheiden should always expect Nick to work with your business’ or personal financial situation.