Qui Tam Cases: If You Are Thinking About Blowing the Whistle, Follow These Tips

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At The Health Law Firm, we have represented many clients that were involved in qui tam cases brought because of false claims under the Medicare False Claims Act (FCA).  We have defended health facilities and health professionals, but we have also brought whistle blower cases against health facilities and health professionals, representing the whistle blower.  If you are thinking about blowing the whistle on any type of fraud or unlawful conduct by your current or former employer, there are important facts that you should know.

Filing a qui tam (whistle blower) case can be complicated, complex, and time consuming.  It’s important to seek experienced legal counsel to guide you through the difficult process. It is crucial that a whistle blower’s attorney have a good working relationship with the U.S. Attorney’s Office and the State Attorney’s Office, as well.
Based on years of experience with these types of cases, from both sides, here are some key tips to remember if you are thinking about filing a qui tam or whistle blower suit:

1.     You Are Doing the Right Thing.  It is important to remember in qui tam cases that you are doing the right thing. Qui tam whistle blowers often save taxpayers millions of dollars and help the government recover stolen funds by coming forward with cases of fraud or unlawful conduct.  Additionally, they help to put an end to fraudulent activities and illegal conduct that may harm patients.

2.     Choose an Experienced Attorney.  Because filing a qui tam suit under the False Claims Act (FCA) can be a difficult and complicated task, choosing an attorney with the proper experience is very important. Litigation of whistle blower cases, either prosecuting them or defending them, is a highly complex, technical area of law and not all attorneys have the experience to make the process easier, let alone be successful.

3.     Don’t Drag Your Feet If You Have Evidence of Fraud.  Once you have evidence of fraud, you need to act quickly or you may lose your opportunity to receive a monetary award. The FCA limits the time in which a suit can be filed. Generally, a qui tam suit must be filed within six years of the date the fraud was committed. Most qui tam laws, including the FCA also have a “first to file” rule. This means that a qui tam whistle blower must be the first to file a case in order to be eligible to receive an award.  Additionally, if the fraud becomes public knowledge or the government discovers the fraud on its own, it is too late for the whistle blower.

4.     Whistleblowers Are Legally Protected from Retaliation by the False Claims Act.  One concern clients have when filing a qui tam suit, is the effect it might have on their future professional career as well as their personal life.
First, because the case is filed under seal, there is no record of any kind that even shows a case has been filed, much less the name of the person filing it.  The U.S. Attorney and its investigators (including the FBI and the OIG Special Agents) will know, but they ain’t telling.  It often takes several years before the court will order the case unsealed. Second, the False Claims Act contains a provision that prohibits any type of retaliation against the whistle blower. The act  makes it unlawful for any employer to retaliate against you for exercising your rights as a whistle blower.  Additionally, if it occurs, you will have a separate right to sue an employer just for the retaliation.  I saw a whistle blower case recently which the court dismissed because there wasn’t specific information contained in the complaint about any false claim being submitted.  However, because the employer had retaliated against the whistle blower, the court did not dismiss the whistle blower’s claim for wrongful retaliation against the employer.  This was a big mistake by the employer.

5.     Silence is Golden in Qui Tam Cases. Do not discuss your case with anyone but your lawyer. Do not tell your friends. Do not tell your family. Do not even disclose that you are thinking of filing a lawsuit. Public discussions can be detrimental to your case. Qui tam suits are filed under the “seal” provision of the FCA, which prohibits the disclosure of any aspect of the case to anyone without prior court approval.

6.    Most Important, Documentation of Actual False Claims is Required. Recent court cases have strictly emphasized the requirement that you must have documented proof of actual false claims being submitted to the government.  Whether these are copies of claims, copies of superbills, copies of explanations of benefits (EOBs), copies of ledgers, copies of book keeping documents or whatever, you must have several actual claims that are false that were submitted for payment.  You must be able to specifiy these by patient name, date of service, CPT code billed, amount billed, etc.  Internal memos, policies and procedures, billing guidance and instructions, medical record entries, and other documents that show the employer’s intent to defraud the government are useful in showing a conspiracy, or organized scheme to falsely bill. However, you must also have copies of false claims documentation, as well.

Remember: Those who file qui tam cases under the FCA are valuable and important for our nation’s health care system. They help stop health care fraud and help the government recover billions of dollars. They prevent the theft or waste of millions of dollars that could be spent on actual, needed health care.  They also help prevent harm that may be caused to patients from receiving substandard treatment, unnecessary procedures and treatments or no treatment. Through qui tam lawsuits, whistle blowers have stopped harmful practices that endanger the health and lives of Medicare, Medicaid, Tricare and VA patients.

For more information, read my prior blog on whistleblowers who report fraud.

Contact an Experienced Health Law Attorney to Assist in Whistle blower/Qui Tam Cases.

If you have knowledge of false claims being filed against Medicare, Medicaid, TRICARE/CHAMPUS or any other type of government program, please contact us, and we will be happy to assist you. Our law firm represents health professionals and health care organizations almost exclusively. Yet, we have been involved in a number of whistle blower/qui tam cases, in which we represent the person who files the claim.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: False Claims Act, FCA defense attorney, legal representation for FCA violations, legal representation for Medicare false claims, legal representation for false billing, Medicare fraud defense attorney, legal representation for Medicare fraud, legal representation for Medicare audit, whistle blower attorney, complex health care litigation defense attorney, whistle blower defense attorney, whistle blower defense lawyer, legal representation for whistle blower suits, legal representation for qui tam suits, qui tam relator attorney, qui tam relator lawyer, qui tam relator legal counsel, health care fraud defense attorney, complex health care litigation defense lawyer, legal representation for health care professionals, health law defense attorney, The Health Law Firm attorney reviews, reviews of The Health Law Firm, whistle blower plaintiff attorney, health care professionals defense counsel, health care professional defense lawyer, health care professional defense lawyer, medical professionals defense counsel, medical professionals defense lawyer, medical professional defense lawyer

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.Copyright © 2018 The Health Law Firm. All rights reserved.

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Broward Health Executives Charged for Conspiring to Get Rid of CEO

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 12, 2017, five North Broward Health District executives were hit with criminal charges. A state attorney is alleging violations of Florida’s open government laws for supposedly holding secret meetings at which they decided to terminate the former interim chief executive.

The Broward County State Attorney’s Office served summons on Broward Health’s interim president and CEO Beverly Capasso, current and former board of commissioners members Rocky Rodriguez, Christopher T. Ure and Linda Robison, and general counsel Lynn Barrett. According to court records, a grand jury returned an indictment against them in state circuit court following an investigation.

Broward’s Bad Luck.

The new charges seem to be the latest chapter of a tumultuous past several years for leadership of North Broward Health. The four-count indictment stems from a prior investigation that followed the controversial December 2016 firing of interim CEO Pauline Grant for alleged kickback violations. For more information on this investigation, click here.

Government-in-the-Sunshine Law.

The indictment levies misdemeanor charges for alleged violations of the state’s public meetings law, also known as the Government-in-the-Sunshine Law. According to court documents, the four board members and Barrett conspired in late November and early December 2016 to hold secret meetings. They were conducted via phone in which they discussed a “reportable event” allegedly committed by Grant and decided upon her termination.

The meetings allegedly violated the law because they covered business or official acts of the district but were not publicly noticed. Therefore, they did not meet requirements to be open to the public at all times or give the public a reasonable opportunity to be heard on Grant’s termination, the indictment says.

Knowingly violating the Sunshine Law can result in removal from office and a criminal penalty of up to 60 days in jail and a maximum $500 fine, according to state records.

To read the indictment in full, click here.

To read more on Broward Health’s legal woes, click here to read a prior blog I wrote.

To learn more about how The Health Law Firm can assist you in matters of employment law, click here.

Contact Health Attorneys Experienced in Health Law and Employment Law.

The Health Law Firm represents both employers and employees in the health care industry in defending allegations of employment discrimination and other complaints from employees and patients. We represent employers in unemployment compensation hearings, in defending against EEOC (discrimination) complaints, and in defending litigation involving wage and hour disputes, as well as other types of contract or employment litigation. We also can investigate such allegations and attempt to negotiate settlements where warranted. Our attorneys represent individuals and institutions in litigation, civil or administrative, state or federal.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Hale, Nathan. “Broward Health Execs Charged For Conspiring To Ax CEO.” Law360. (December 12, 2017). Web.

Fleshler, David. “Ousted Broward Health CEO files lawsuit.” Sun Sentinel. (December 20, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: employment issues attorney, employment law defense attorney, employment law attorney, legal representation for health care facilities, legal representation for health care professionals, Legal representation for workplace discrimination, workplace discrimination lawyer, legal representation for employee discrimination, defending litigation involving wage and hour disputes, legal representation for contract law, contract law attorney, legal representation for contract litigation, contract litigation attorney, employment litigation lawyer, legal representation for employment litigation, legal representation for labor relations, legal representation for employee relations, legal representation for conditions of employment, reviews of The Health Law Firm, The Health Law Firm attorney reviews

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

 

Trump Administration Reverses Guidelines for Penalties Against Nursing Homes

George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Trump administration is actively reversing nursing home guidelines previously put in place under President Barack Obama. The current administration is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury.

The change in the Medicare program’s penalty protocols was requested by the nursing home industry. The American Health Care Association (AHCA) has complained that under President Obama, inspectors focused excessively on catching wrongdoing rather than helping nursing homes improve or prevent them.

Serious Violations.

Since 2013, federal records show that nearly 6,500 nursing homes have been cited at least once for a serious violation. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

In 2017, the Centers for Medicare & Medicaid Services (CMS) discouraged its offices from imposing fines, even in the most serious health violations, if the error was a “one-time mistake.”

According to Dr. Kate Goodrich, director of clinical standards and quality at CMS, unnecessary regulation was the main concern that health care providers raised with officials. “Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn’t increase the quality of care they provide,” Goodrich said.

Serious Penalties.

Medicare has various ways of applying penalties. It can impose a specific fine for a particular violation. It can assess a fine for each day that a nursing home was in violation. It can deny payments for new admissions.

The average fine in recent years has been $33,453., but 531 nursing homes amassed combined federal fines above $100,000., records show. In 2016, Congress increased the fines to factor in several years of inflation that had not been accounted for previously.

Dr. David Gifford, AHCA’s senior vice president for quality, said daily fines were intended to prompt quick remedies but were pointless when applied to past errors that had already been fixed by the time inspectors discovered them.

The change in policy aligns with Trump’s promise to reduce bureaucracy, regulation and government intervention in business.

In November 2017, CMS terminated a Florida Nursing from the Medicare program home after 14 patients died during a hurricane.  You can learn more about this incident and CMS sanctions by clicking the link above.

Don’t Wait Until It’s Too Late; Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.

If you receive any notice related to any audit, overpayment or action to terminate you or your company, take immediate action. The attorneys of The Health Law Firm represent healthcare providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.

We also represent physicians, medical groups, pharmacies. health facilities and therapists in notices of termination of Medicare billing privileges, corrective action plans (CAPs), OIG exclusion hearings, Medicaid hearings and applications for removal from the List of Excluded Individuals and Entities (LEIE).

For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.

Sources:

Rau, Jordan. “Trump Administration Relaxes Financial Penalties Against Nursing Homes.” Kaiser Health News (KHN). (December 31, 2017). Web.

“Trump Administration Relaxes Financial Penalties Against Nursing Homes.” The Washington Post. (December 31, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

Appeals Court Affirms Discipline for Doctor Who Sold Prescriptions at Bar

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On December 15, 2017, a physician who sold painkiller prescriptions to patients at a bar and restaurant, had his two-year probation for unprofessional conduct upheld by a Maryland appeals court. The court upheld the decision after it found that the evidence supported the state board’s disciplinary decision.

Unprofessional Conduct Alleged.

The Court of Special Appeals affirmed the ruling by the Maryland State Board of Physicians (Board) to reprimand Dr. Walter Kozachuk and place him on probation for a minimum of two years for unprofessional conduct in the practice of medicine. The Board claimed he would routinely meet with patients at a restaurant and bar and give them prescriptions for painkillers and anti-anxiety drugs in exchange for $100 per prescription. Additionally, on at least one occasion, he allegedly gave a patient a prescription in a parking lot.

The appeals court determined that there was substantial evidence supporting the board’s determination that the doctor’s sale of prescriptions in a non-office setting constituted unprofessional conduct. To read the court’s opinion in full, click here.

How You Can Avoid Legal Issues.

As a physician, you should be proactive in avoiding drug seeking patients and illicit clinic owners or coworkers. With the power of prescribing comes a great responsibility. Don’t find yourself behind bars when it can all be prevented. Here are some tips to learn from the recent pain management clinic raids.

1.    Avoid working for practices or clinics that have reputations as pill mills.

2.    Most physicians subject of investigations, such as the one written about here, are typically the sole physician in the clinic. Join a team setting in a group practice with other full-time physicians.

3.    Document everything. Make sure all medical records meet the requirements of state and federal laws. Verify all patients’ identities and be sensitive to possible false identifications.

4.    Make sure you know about everything going on in your office. Maintain a loyal and trustworthy staff who will report irregular behavior to you as physician. Have a zero tolerance for staff violations.

5.    Do NOT ever allow a lay person or non-physician to control your office. Do not give anyone like this sole access to medical records, billings, bank accounts or scheduling. Make sure that you are the one in control of these, that you have the passwords and access numbers, and that your constantly review these. You will be held accountable for this so you should remain in control.

To read more physician tips on protecting yourself and your license, click here.

Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, pain management doctors, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.  We represent physicians in complaints against their medical licenses.  We also handle appeals of board of medicine cases.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Source:

Kang, Peter. “Md. Court Affirms Discipline For Doc Who Sold Scrips At Bar.” Law360. (December 15, 2017). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.Copyright © 2017 The Health Law Firm. All rights reserved.