Healthcare whistleblowers play an important role in protecting patient safety and uncovering fraud, waste, and abuse under government healthcare programs. While the United States Department of Justice (DOJ) and U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG) routinely target healthcare providers and other entities for Medicare fraud, Medicaid fraud, and other fraudulent practices, they also rely heavily on whistleblowers to expose fraudulent practices.

Current and former employees (and other individuals) can file healthcare whistleblower cases in a wide range of circumstances. In many cases, these whistleblowers will be eligible for rewards, in addition to stringent confidentiality and anti-retaliation protections. Securing these protections and establishing eligibility for financial incentives involves coming forward through the appropriate channels—which often means filing a False Claims Act lawsuit.

“Healthcare fraud is a major issue. Providers and other entities routinely pay millions to settle allegations of improper billings, Stark Law violations, and other fraudulent practices, and whistleblowers play a critical role in helping the federal government hold bad actors accountable.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

The False Claims Act allows current and former employees (and other individuals) to file whistleblower lawsuits to expose fraud, waste, and abuse under Medicare, Medicaid, and other government healthcare programs. In these “qui tam lawsuits,” whistleblowers work with the government to seek recovery of taxpayer money procured through fraudulent billings and other unlawful practices. When whistleblower claims under the False Claims Act are successful, whistleblowers are generally eligible to receive rewards that are calculated based on the amount of money recovered.

What It Means to Serve as a Healthcare Fraud Whistleblower

Serving as a healthcare fraud whistleblower means working with the federal government to expose violations of the law that result in improper payments under federal healthcare programs (i.e., Medicare, Medicaid, and Tricare). As discussed in greater detail below, these violations include unlawful billing practices, paying or receiving illegal remuneration for patient referrals, and a wide range of other practices that result in improper payments through the federal healthcare system.

As a healthcare fraud whistleblower, you will work with the federal government to expose fraud, waste, or abuse. While your level of involvement in the government’s investigation is up to you, the more assistance you provide, the more likely it is that your efforts will be worthwhile. Healthcare fraud whistleblowers can (and should) hire an attorney to represent them, and they can work with their attorney behind the scenes while their attorney works with the government on their behalf.

Initiating a Healthcare Whistleblower Case Under the False Claims Act

As mentioned above, serving as a healthcare whistleblower typically involves initiating a case under the qui tam provisions of the False Claims Act. The False Claims Act is a federal law that prohibits the submission of “false and fraudulent” claims under federal healthcare programs and government contracts.

While the DOJ can (and does) independently pursue investigations and enforcement proceedings under the False Claims Act, whistleblowers can also initiate False Claims Act cases by filing a qui tam lawsuit in federal court. Whistleblowers can file qui tam lawsuits to expose all types of fraudulent schemes involving Medicare Advantage plans, state Medicaid programs (which are federally funded), and other federally funded healthcare services.

Potential Grounds to Initiate a False Claims Act Case

When can (and should) providers, staff members, and other individuals think about coming forward as a healthcare whistleblower? The following are all common grounds for initiating healthcare fraud cases under the False Claims Act:

Billing for Services Provided By Unlicensed Personnel

Medical services provided under federal healthcare programs must be provided by suitably licensed personnel. Improperly billing the Centers for Medicare and Medicaid Services (CMS) or other government payors for services provided by unlicensed personnel constitutes healthcare fraud.

Double Billing

Billing the federal government and other payors for the same services also constitutes healthcare fraud under the False Claims Act. If a provider billed Medicare after an insurance company paid for the services covered under the Medicare billing (or vice versa), the provider can (and should) be held accountable under the False Claims Act.

Durable Medical Equipment (DME) Fraud

Medical device companies and healthcare providers can be held liable for various forms of durable medical equipment (DME) fraud. These include billing for DME that is not medically necessary and paying illegal kickbacks in exchange for recommending a particular company’s equipment to Medicare or Medicaid patients, among others.

Electronic Health Records (EHR) Fraud

Altering or forging patients’ electronic health records (EHR), accepting kickbacks from sales representatives in exchange for using their companies’ EHR platforms, and engaging in other unlawful EHR-related practices also constitute fraud under the False Claims Act. Altering patient records to improperly bill for designated health services may violate various other federal laws as well.

Lack of Medical Necessity

A key aspect of federally funded healthcare is that providers can only bill for patient care that is medically necessary. When providers bill for medically unnecessary procedures, this can provide clear grounds for reimbursement liability (and potentially liability for civil or criminal penalties) under the False Claims Act.

Off-Label Marketing of Prescription Drugs

Medicare only covers off-label medications under limited circumstances. Marketing prescription drugs for uses that lack FDA approval and prescribing drugs for non-qualifying off-label uses can both warrant whistleblower complaints if they result in improper billings under the Medicare program. In these cases, whistleblowers may be able to file complaints against pharmaceutical manufacturers, healthcare providers, and various other entities and individuals.

Offering or Accepting Illegal Payments for Patient Referrals

The Anti-Kickback Statute and Stark Law (also known as the Physician Self-Referral Law) prohibit payment of referral fees and other forms of remuneration out of Medicare and Medicaid-reimbursed funds. Violations of these statutes also generally constitute violations of the False Claims Act. Whether a company has paid kickbacks to an unrelated third party or it has made improper payments or referrals to a parent company, a wholly owned subsidiary, or any other entity in which it holds a financial interest, a whistleblower complaint may be warranted.

Phantom Billing, Upcoding, and Unbundling

Phantom billing, upcoding, and unbundling are all extremely common forms of Medicare and Medicaid fraud. While these can warrant whistleblower complaints on their own, in many cases, these fraudulent billing practices will involve falsifying cost reports, improperly accounting for administrative expenses, and other forms of fraud as well.

Risk-Adjusted Payments Fraud (Risk Adjustment Fraud)

Risk-adjusted payments fraud (also known as risk adjustment fraud) involves using diagnosis billing codes that are not supported by a patient’s actual diagnosis in order to inflate billing rates under the Medicare Advantage program. This is also an extremely common form of billing fraud, and it is yet another form of fraud that whistleblowers can disclose through a qui tam lawsuit.

Other Forms of Medicare and Medicaid Fraud

Along with the forms of fraud discussed above, Medicare and Medicaid fraud can take many other forms as well. Ultimately, if you have any reason to believe that your employer, your former employer, or another entity has improperly billed CMS, it will be worth contacting a law firm to discuss coming forward.

Tricare Fraud and U.S. Department of Labor (DOL) Fraud

Whistleblowers can also expose Tricare fraud and U.S. Department of Labor (DOL) fraud under the False Claims Act. Here too, fraud can take many different forms, and whistleblowers can work with the DOJ to expose and seek accountability for these forms of healthcare fraud as well.

Entities in the Healthcare Industry that Can Be Held Accountable for Fraud

Whistleblowers can initiate False Claims Act cases against all types of entities involved in all segments of the healthcare industry. This includes (but is by no means limited to):

• Clinical laboratories and diagnostic testing facilities
• Durable medical equipment (DME) manufacturers and suppliers
• Home health care providers
• Hospitals and hospices
• Managed care organizations
• Pharmaceutical companies, distributors, and entities that assist with clinical trials
• Skilled nursing facilities
• Specialty offices and centers
• Urgent care clinics
• Other healthcare providers

These entities (among others) can all be held liable for fraud under Medicare, Medicaid, and other federal healthcare programs. If you have reason to believe that any type of entity is directly or indirectly responsible for fraudulent program billings, you should contact a law firm that can help you make an informed decision about whether to initiate a healthcare whistleblower case under the False Claims Act.

Whistleblower Rewards in Healthcare Fraud Cases Under the False Claims Act

When healthcare whistleblowers help the federal government recover funds under the False Claims Act, they may be eligible to receive a reward calculated as a percentage of the government’s recovery. This is true whether the government enters into a settlement agreement to resolve allegations against a defendant or the U.S. Department of Justice secures a judgment in federal court.

Whistleblower rewards under the False Claims Act typically range from 15% to 30% of the amount recovered. The specific percentage in any individual case is determined based on the whistleblower’s level of involvement, among other factors. If you are interested in seeking a whistleblower reward, your law firm should be able to explain the False Claims Act’s compensation provisions in detail.