A qui tam action is a lawsuit filed by a whistleblower under the False Claims Act, 31 USC § 3729, who has knowledge of past or present fraud committed against the government. In 2019, the Department of Justice received more than $3 billion in settlements and judgments involving false claims against the federal government. Of this amount, $2.6 billion involved healthcare matters, usually false claims made with Medicare and Medicaid programs.
Qui tam actions in healthcare
Healthcare fraud takes many forms, but the most common types are fraudulent billing, upcoding, misrepresentation of credentials, anti-kickback, and self-referral cases.
In fraudulent billing, a provider will bill the government for services it did not provide or for unnecessary medical tests or procedures. For example, a physician may order for an MRI when an x-ray would have been sufficient. Or a dermatologist could falsify its documents to show that a patient had a Medicare-covered condition that would allow reimbursement from Medicare, when, in fact, the patient’s condition was not covered.
In upcoding, the healthcare provider submits a code requiring a higher amount of reimbursement from Medicare or Medicaid, claiming that a more complex service was provided than what was actually performed. For example, a psychiatrist would “upcode” and bill the government for 60-minute sessions, when in fact, only 15-minute check-up sessions were provided.
In misrepresentation of credentials, the provider would misrepresent the credentials of the person providing the service. In the sample case of the psychiatrist above, the 15-minute check-up would have been conducted not by the psychiatrist but a non-licensed individual, yet billed as if the psychiatrist conducted the session.
Anti-kickback and self-referral cases involve violations of the Anti-Kickback statute and Stark law. Generally, a provider is prohibited from billing the government for referrals made by covered medical professionals, such as physicians, whom the provider has a financial relationship with. For example, if the hospital has an agreement with the doctor that for every referral of a MRI, x-ray or other test, the doctor makes a percentage from that referral, the hospital cannot bill Medicare or Medicaid for that service. If the hospital bills the government for a service that was a violation of the anti-kickback statute or Stark law, it is considered a false claim and the amount received should be refunded.
Qui tam action process
When you have personal knowledge of false claims or fraud made by these medical providers, you can initiate a qui tam action. Usually, those who have personal knowledge of false claims are employees of medical providers. Under 31 USC § 3730, a private person may file a qui tam action for violation of the False Claims Act in the name of the government. This complaint is not yet served upon the defendant, but only served on the government. It is filed in camera and remains under seal for 60 days (or any period of extension), giving the government time to review the complaint and the evidence supporting the complaint and to see whether the government will intervene in the action or not.
If the complaint is successful and the government recovers an amount based on the qui tam complaint, the private-person complainant can receive between 15% to 30% of the amount recovered, depending on whether the government intervened or not. These qui tam provisions give an incentive to whistleblowers to report instances of fraud, despite the risk of losing employment.
Qui tam lawyer
One of the most important things about filing a qui tam action is getting a qui tam lawyer. When filing a complaint, you need to make sure your documentation is strong enough to support your claim. This is important so the government will be convinced that your claim is strong and will intervene and take over the case. This will also save you on legal fees once the government intervenes. So before your claim becomes public and is served upon the defendant, you need to make sure that your documentation is strong and complete, because once the complaint is served upon the defendant, you will not have access to the defendant’s records anymore, even if you continue to be the defendant’s employee.
Qui tam lawsuits are complex and require specialized knowledge. If you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.