Fraud in the health care industry is a fact of life. In 2016 alone, the federal government estimated that improper payments by Medicare and Medicaid totaled about $95 billion. And that’s only a single year’s amount for just two of the government’s many health care programs. With an aging population, increased health care spending, the passage of the CARES Act, and the government’s multi-trillion-dollar effort to mitigate the health and economic effects of the COVID-19 pandemic, health care fraud will only increase.
Unfortunately, some of the readers of this article will be in the unenviable position of witnessing or even being asked to participate in billing and treatment frauds. Most will want to do the right thing and report it but will understandably be concerned about the effect on their careers. Rest assured, there are powerful laws in place to address this situation.
The most powerful is the False Claims Act (FCA). This law provides stiff penalties for violators and substantial financial rewards and retaliation safeguards for whistleblowers. The FCA was passed during the Civil War to protect the country from the fraudulent sale of supplies and equipment to the Union Army. The FCA has since evolved to encompass protecting most government dollars, including health care spending programs such as Medicare, Medicaid, Tricare, and others.
The FCA encourages whistleblowers to report fraud by offering them protection against retaliation and a percentage of the money the government recovers from the whistleblower’s information. Under the FCA, the government will pay the whistleblower a reward of 15% to 30% of the total money recovered from the defendants. Given the large scope of many FCA cases, these cases have frequently resulted in multi-million dollar payouts to whistleblowers.
For example, the FCA was recently used in the government’s historic $1.4 billion recovery from Reckitt Benckiser Group, involving the marketing of Reckitt’s opioid addiction treatment drug Suboxone. (Full disclosure: We represented one of the whistleblowers who outed the wrongdoing.) For their efforts, the whistleblowers were awarded over $100 million dollars.
The government understands that retaliation is a legitimate fear employees have when weighing the possibility of taking action. That’s why the FCA has specific anti-retaliation provisions which protect employees from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer” because the employee investigated, reported or sought to stop an employer from engaging in practices which defraud the federal government.
This is a complex area of law, and the decisions people make in the face of illegal behavior—whether to act or not—will have a tremendous impact on one’s career and life. Given the weight and complexity of the dilemma, it is prudent to consult with an attorney who regularly handles these types of cases and has experience working with whistleblowers and government prosecutors before taking action. Many attorneys take these cases on a contingency basis, which means clients don’t pay any fees unless the case is successful.
Our health care system is being tested like never before, and the people who make it up play a critical part in ensuring its effectiveness—now more than ever. Those medical providers can help ensure that the billions of dollars being allocated to this part of our economy will not be squandered by waste and fraud. Right now, every dollar counts. And making sure that those dollars aren’t stolen by fraudsters is not only a civic responsibility, but also a legally protected right. Our health care providers are already heroes—no need to further prove that. This is just one more way for that to manifest itself.
Joseph Gentile is an attorney.
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