Government Pays Whistleblowers Millions in False Claims Act Cases When Wellcare Health Plans agreed to pay $137.5 million to settle Medicaid fraud allegations, a former employee who blew the whistle became a wealthy man. Under the qui tam provisions of the federal False Claims Act, former Wellcare financial analyst Sean Hellein will be paid $20.75 million for initiating the lawsuit that led to the government's investigation and settlement. This is just one of many False Claims Act lawsuits that have resulted in large rewards for whistleblowers. Other recent cases include:
The Act contains a qui tam provision that allows a private person to initiate a lawsuit on behalf of the United States government. Qui tam is short for the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which is loosely translated as "he who sues in this matter for the king as well as for himself." Here’s how it works: A private person, known as a “relator,” commences a lawsuit on behalf of the United States government to recover damages caused by the submission of false or fraudulent claims. The qui tam complaint must be filed under seal, which means that all records relating to the case must be kept in a secret docket in the court. Copies of the complaint are given only to the U.S. Department of Justice (DOJ), the local U.S. Attorney, and the assigned Judge. In addition to the complaint, the relator must give the Department of Justice a “disclosure statement” containing all the evidence supporting the allegations in the complaint. The disclosure statement is not filed in any court and is not available to the named defendant. The relator must be represented by a lawyer. The lawyer will assist the relator in pulling together the evidence, preparing the complaint and disclosure statement, and complying with the many procedural and technical requirements. The DOJ must investigate the allegations of false or fraudulent claims. At the conclusion of the investigation, the DOJ must either (a) intervene in the lawsuit and participate as a plaintiff prosecuting the case; (b) decline to intervene; or (c) move to dismiss the complaint either because there is no case or the case conflicts with significant interests of the United States. In practice, the DOJ often settles the lawsuit with the defendant before formally intervening (in which event, the relator will be entitled to a percentage of the settlement) or advises the relator that the government will not intervene (in which case the relator and relator’s counsel must decide whether to pursue the case on their own or dismiss it). Other than money and a desire to do the right thing, why would anyone volunteer to be a whistleblower? Self-preservation is another factor. Anyone who knowingly assists in the submission of false or fraudulent claims to the government is at risk of being prosecuted for a crime along with their employer. For example, when a physician in Texas was arrested recently on Medicare fraud charges, the physician’s billing clerk was also arrested and now faces criminal charges. The billing clerk may wish today that he had become a whistleblower instead of following his employer's lead. If you are aware that false or fraudulent claims have been submitted to the government, then you should consult with an experienced attorney immediately to protect your rights. To schedule a free initial consultation by telephone or in person, call our office today at (917) 652-6504 or click here to communicate with us via email. John Howley, Esq. New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules.
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FBI’s Refusal to Record Witness Interviews Puts the Innocent at Risk Did you know that the FBI refuses to record most witness interviews, relying instead on “summaries” drafted by FBI agents? This creates a terrible risk for innocent people who may find themselves facing felony charges based on an inaccurate or incomplete “summary” of what they supposedly said. Here’s how it works. An FBI agent contacts you and wants to ask you a few questions. You have done nothing wrong, and you don’t want to appear uncooperative, so you agree to talk with him. His questions are fairly straightforward. There is no suggestion that you have done anything wrong. You pay no attention to his colleague who is taking notes. After the interview, the FBI agent who took notes will dictate or type up a “summary” of what you said on a Form FD-302. This will become the “official record” of what you said. A summary is, by definition, an incomplete record. In the process of taking down notes and later drafting a summary from those notes, some details will necessarily be left out. Words and phrases may be taken out of context. Intonation and emphasis will be lost. Precise words may be replaced with paraphrases. The agent will pick and choose those parts of your interview that he thinks are most important. Those choices will be guided by his subjective judgments and biases. If the agent thinks you provided evidence that helps support their case against someone else, human nature tells us that his summary will tend to emphasize the parts of your interview supporting that perspective. Fast forward to many months later. The agent who interviewed you calls again. There is still no suggestion that you have done anything wrong. He just needs you to testify against someone else before a grand jury or at trial. You have no choice. If you do not agree to testify, the U.S. Attorney will subpoena you. The agent and his colleague start to go over your “statement” as recorded on the Form 302. You are surprised. Either the agent who was taking notes did not hear you correctly, or left out important details, or the words that you actually said were taken out of context. When you start clarifying what you actually said or meant, the agents become hostile. They want to know if you were lying when you were interviewed or if you are lying now. Because if you lied during your interview, you may be charged with violating the False Statements Act, 18 USC § 1001, for making a false or fraudulent statement to a federal official. And if you contradict “your” Form 302 “statement” when you testify before a grand jury or in court, you may be charged with perjury. Either way, you could be facing up to five years in prison if you dare to contradict what the agent wrote on the Form 302. All this could be avoided, of course, if the FBI would simply record witness interviews. Then, in the event of a dispute, the judge or jury could listen to the recording and hear for themselves what you actually said. But as of this writing, the FBI’s official policy is to use audio recorders for the purpose of recording witness statements only on a limited, highly selective basis, and only when authorized by the Special Agent in Charge (SAC). What should you do if the FBI or another government investigator calls? Always consult with a lawyer before you say anything. Your lawyer can talk with the investigator or prosecutor in ways that you cannot. Most of all, your lawyer can assess the situation and advise you whether to agree to the interview or to testify only in a more formal proceeding where your statements will be recorded verbatim by a court reporter. Here’s the bottom line: If you are asked to meet with government investigators, served with a subpoena, or facing criminal charges, then you should consult with an experienced attorney immediately. We invite you to contact our office at (917) 652-6504 to discuss your options. Or click here to contact us via email. Initial consultations are free. John Howley, Esq. New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. Data Analytics Drive Government Healthcare Fraud & Diversion Investigations Advanced data analytics by specially-trained government agents have changed the way the federal government investigates and prosecutes healthcare fraud and the diversion of controlled substances. When government agents knock on your door, they may already know more than you know about your own records. Or the government may have made serious mistakes caused by faulty algorithms, corrupted data, or improperly assuming guilt because you have a legitimate relationship with a person or entity that is engaged in fraud without your knowledge and unrelated to anything you have done with them. Traditional healthcare fraud and drug diversion investigations usually begin from the bottom up. An undercover investigation might identify fraud or diversion by an individual physician or pharmacist. Investigators might offer the individual leniency if they identify and provide evidence against other participants in the fraud or diversion. Now the federal government is using advanced data analytics to investigate healthcare fraud and prescription drug diversion from the top down. In a recent diversion case, an analysis of trends in prescription data led the Drug Enforcement Agency (DEA) to investigate and ultimately to suspend the DEA Registration of a regional pharmaceutical distribution center serving 2,500 pharmacies. In a recent fraud case, an analysis of trends in Medicare billing data, bank records, and other computerized records led to the arrest of 91 doctors, nurses and other medical professionals on charges of submitting more than $295 million in fraudulent claims to Medicare. Testifying before a U.S. Senate Committee earlier this month, the Inspector General of the Department of Health and Human Services (HHS) provided an inside look at how HHS and the Department of Justice (DOJ) are mining electronic data to investigate and prosecute fraud, waste, and abuse in federal health care programs. While the Inspector General no doubt held back some of his agency’s trade secrets, he did provide a general overview of the techniques used to uncover health care fraud. The process begins by analyzing Medicare or Medicaid claims for anomalies or suspicious patterns. This might turn up evidence of different health care providers billing for the same or similar services to the same patient. Or it might reveal a higher volume of claims than one would expect given the demographics of the surrounding population. Data analysis might also include “time analysis reports,” in which investigators look at the nature and complexity of services being provided by individual healthcare professionals, the amount of time that should be involved, and the number of patients seen in a give day to determine if the number of claims submitted for that day is realistic. The Inspector General testified that for home health care providers, the data analysts even consider traffic patterns to determine if it is possible for a particular home health care professional to have seen the number of patients for whom claims were submitted. When anomalies or suspicious patterns are identified, investigators start examining other records, such as bank records to identify possible kickbacks or patterns of unusual payments. They review corporate and other business records to identify sham companies and hidden connections between seemingly different entities. All along, the investigators are taking note of names, addresses and other information concerning possible co-conspirators and/or cooperating witnesses. The investigations are conducted by Medicare Fraud Strike Force Teams composed of both “on the ground” law enforcement personnel and program experts from the Center for Medicare & Medicaid Services (CMS), Special Agents who have received advanced training in investigative technology and data analysis, and other knowledgeable professionals who are able to collect and analyze large data sets and other electronic evidence. The ease of sharing electronic data facilitates cooperation among government agencies. The recent Medicare investigation resulting in 91 arrests was conducted jointly by investigators, data analysts, and law enforcement personnel from HHS, DOJ, several different U.S. Attorney’s Offices, the Postal Service, the Department of Homeland Security, the Social Security Administration, the Department of Transportation, and even the Railroad Retirement Board. The government’s reliance on data analytics raises new and difficult challenges for individuals and companies under investigation – especially if you are innocent or less culpable than the government contends. Government agents may conclude that you are guilty based on a faulty data analysis. Trying to convince them otherwise on your own would be a mistake. If you are facing a government investigation, a civil action or criminal charges, then you should consult with an experienced attorney immediately. We invite you to contact our office at (917) 652-6504 to discuss your options. Or click here to contact us by email. John Howley, Esq. New York, New York The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact our law offices and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. I practice law and offer legal services only in jurisdictions where I am properly authorized to do so. I do not seek to represent anyone in any jurisdiction where this web site does not comply with applicable laws and bar rules. |
John Howley, Esq.
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