Leading Criminal Defense Attorneys Providing Whistleblower Protection in Health Care Fraud Cases

As an employee or independent contractor in the health care field, you know that health care is big business in the United States today.  However, you may not know that health care fraud is also big business.  The federal government is always looking for health care companies and individuals who are not playing by the rules and violating the Stark law, the anti-kickback statute, or committing Medicare or Medicaid fraud.  What happens, then, when you become aware that someone at your workplace is committing health care fraud?  And what if it’s not just one person, but the company as a whole?

At Oberheiden, P.C., former federal prosecutors help clients that discovered health care fraud. Through our years of experience as government prosecutors and civil trial lawyers, we recommend that people in this situation consider implementing some or all of the following five steps:

1. Be Sure of Your Allegations

Health care is a complicated field with books full of laws and regulations, both on the state and the federal level, that may or may not apply to the situation that appears to be fraudulent to you.  Of course, you have personal expertise in your field, so we are not implying that you don’t know what health care fraud is or whether someone is violating the law.  We do recognize, though, that appearances can be deceiving.  Before you panic, take the time to do a little bit of investigation into your suspicions.  Be sure that you see what you think you see.

2. Document Everything

If you are certain that what you are seeing is fraud, document your suspicions at the time and keep copies of any documents, emails, or text messages that reflect the fraud.  Assume that at some point, the wrongdoer will decide that they need to cover their tracks and will delete or hide these documents and communications.  Also, the person or the company may at some point come after you, accuse you of making things up, or even claim that you were the person committing the fraud, and not them.  Moreover, if you should need to proceed to legal action, these items and your contemporaneous notes on the matters in question, including how you discovered the fraud, any conversations about the fraud, and anything that occurred after your discovery, will be important items to show your lawyer, and possibly the government, to support your claims.

3. Talk to Your Supervisor or Another Person in Charge

If the fraud is confined to one person or a few people at the company, and you do not believe that their actions reflect the values or position of the company as a whole, you may choose to report the health care fraud that is being committed to either your supervisor, someone in the human resources department, the company’s compliance officer, or other members of the leadership team at the company.  However, expect that they may not believe you or may not care about the fraud, as hard as that may be to believe.  It is very likely that the people committing the fraud are among the highest earners in the company.  Health care fraud is very lucrative, and some companies simply prefer to turn a blind eye to the illegal activities.  This attitude is especially common if the fraud is being committed by marketers who are independent contractors.  Many companies assume that if kickbacks are being paid by non-employees, they can take a “don’t ask, don’t tell” approach and ignore the fact that the earnings are the result of illegal activity.  You should request a meeting with the person to whom you have decided to report the situation and bring your notes and documentation to that meeting.  Provide copies of these documents if you are comfortable doing so, but keep the originals in a safe place in case the meeting does not go well.

4. Consider Resigning Your Position

If you are not comfortable reporting your discovery to a person at the company, if the health care fraud pervades the company as a whole, or if your meeting in which you reported the fraud did not go well, you should consider whether or not it makes sense to stay at the company.  You may be in danger of termination if the perpetrators of the fraud discover that you know about their wrongdoings and even that you may have reported it to the company.  Moreover, depending on your position at the company, you may be in danger of being liable for the fraud yourself.  For example, executives of health care companies may be found individually either civilly or criminally responsible for the actions of company employees or independent contractors.  This liability is especially likely to attach if the government can show that you actually knew or should have known of the fraud.  Even non-executive employees can be caught in the web.  For example, if you submit bills to Medicare on behalf of the company, the government may charge you with fraudulent billing even if you did not know that the underlying claims were false.

5. Talk to a Lawyer About Becoming a Whistleblower

Finally, you should consider becoming a whistleblower and reporting your findings to the government.  Under the False Claims Act, any person or company who knowingly presents a false claim to the government or causes a false claim to be paid by the government is subject to liability including three times the amounts of the claims presented or paid and a fine of up to $11,000 for each individual false claim. Such claims can be reported anonymously, the lawsuits are initially filed under seal, and it is illegal for your employer to retaliate against you in the terms or conditions of your employment due to whistleblower activity.  However, you should contact an attorney as soon as possible to protect your rights before you go to the government.  If you are an original source of information about a false claims act violation, you could be the “relator” in a qui tam action, which you bring on behalf of the government.  As a relator, you are entitled to personally receive a share – commonly 15 to 25 percent – of any recovery obtained from the defendant in such cases.

Don’t Get Yourself in Trouble: Share Your Story with Former Prosecutors Today

If you believe your company, or one or more persons at your company, is committing health care fraud, you need to talk to an attorney as soon as possible to protect yourself from liability.  At Oberheiden, P.C., our attorneys are experienced in representing whistleblowers in False Claims Act cases and in advising those who have become aware of illegal activity at their workplace.  All initial consultations are free and confidential. Contact one of our attorneys today.