the first thing for potential whistleblowers to know
If you believe you have information related to an organization committing fraud against the government (i.e., you may be considering being a Whistleblower), the first thing you should know is:
DO NOT DISCUSS IT WITH ANYONE OTHER THAN AN ATTORNEY WHO WORKS WITH WHISTLEBLOWERS.
The False Claims Act (i.e., Whistleblower laws) are notoriously tricky. There is a long list of people who had good intentions, who had good information, and who could have shared in the large financial awards obtained. Why didn’t they get their share? Often, because they didn’t consult with counsel that understood the law, and they discussed the matter when they shouldn’t have.
RULE #1: DON’T DISCUSS IT WITH ANYONE EXCEPT A QUALIFIED ATTORNEY
See the Whistleblower Education & FAQ Page.
What are “WhistleBlowers”?
Whistleblowers are individuals that recognize someone has defrauded the government. The legal term for a Whistleblower is a “Relator.” Relators are typically ordinary citizens who, while doing their job, recognize that the government is being overbilled or defrauded in some way. Relators are protected from retaliation by strict laws from retaliation by their employer should they come forward, and Relators are highly incentivized by having an opportunity to share up to 30% of the Government’s recovery.
Although the government can theoretically be defrauded countless ways, typically whistleblowers work in the healthcare, military contractor, transportation, or other industries where there is government spending. In fact, the healthcare industry is a frequent target of whistleblower lawsuits because of the massive government spending in Medicare and Medicaid, and because there are highly specialized laws regarding healthcare provider’s dealings with Medicare and Medicaid.
Oklahoma State Whistleblower Act
Most Whistleblower lawsuits involve federal law, but there is an Oklahoma state Whistleblower law as well. Title 74, section 840-2.5 of the Oklahoma Code is the Oklahoma “Whistleblower Act,” which was passed as law “to encourage and protect the reporting of wrongful governmental activities and to deter retaliation against state employees for reporting those activities.” Often, however, when a State Government is being defrauded, there are Federal dollars involved as well, which provides the Relator with an initial legal question of which law is the most appropriate, and best for the Relator.
The False Claims Act
On March 2, 1863, the federal government passed the first False Claims Act primarily because President Abraham Lincoln was aggravated over unscrupulous people selling faulty war supplies to the government. History shows that people were selling sickly horses and mules, spoiled food, and faulty guns and ammunition to the government, and President Lincoln wanted them stopped. The law is sometimes referred to as the “Lincoln Law,” however governments have recognized since the 1300’s that these types of laws are necessary because, as Benjamin Franklin said, “There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the Government.”
Whistleblower lawsuits are often called “qui tam” lawsuits. The phrase “qui tam” is a shortened version of the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “he who sues in this matter for the king as well as for himself.”
What it means in practical terms is that the government will pay you if you are an individual who knows of and brings a successful action for recovery under the False Claims Act. As tax-paying individuals, we are all being cheated by every action of fraud on the government, and over hundreds of years governments have learned that stopping government fraud is best accomplished by providing significant incentives for individuals to come forward and sue “for the king as well as for himself.”
The amount of money a Relator can receive from a successful claim can be substantial. Depending on the type of fraud and the specific laws under which a qui tam lawsuit is brought. The Relator can share in the recovery in a range from 10-30%. Depending on what claims and charges are found against the defrauder, penalties can include not only the amount of money actually defrauded, but also penalties ranging from $5,500 to $11,000 per claim or more, plus three times the amount of damages the government suffered. It is, therefore, not uncommon for penalties to be assessed in amounts in the millions, tens of millions, and even hundreds of millions of dollars.
What the Government is Looking For
ui tam claims can result from many situations, but some of the more typical include:
- A healthcare provider (e.g., doctor, hospital, physical therapy, etc.) that sends a claim for payment to the government (e.g., Medicare, Medicaid, or other state or federal program):
- For services that were not performed.
- For services that have been up-coded (patient given treatment X, but coded as the more expensive treatment Y).
- A government contractor:
- Who bills the government for work not actually performed by, for example, padding the payroll with people who were not on the job.
- Who bills the government for work that does not meet the government specifications for the job.
- Who bills under a Time and Materials contract for work performed on a Fixed Cost contract.
- Who provides products to the government that do not meet the government specifications.
- Who certifies the products are Made In America, when in fact they are not.
- A healthcare provider or government contractor that certifies compliance with the law when in fact they are not compliant.
- Bid rigging for government contracts.
Some actions the government pursues are civil in nature (meaning the defrauder must pay a penalty), and other actions are criminal (meaning the defrauder must pay a penalty and/or do time in jail). In healthcare, for example, the “Stark Law” has civil penalties and is targeted to healthcare providers who unlawfully refer business to themselves (See Law Guru article re Health Care Fraud). The “Anti-Kickback Laws” are similar but have a potential to be criminal in nature and deal with the solicitation or receipt of kickbacks for referring business.
What to do if you suspect Government Fraud
The laws governing fraud against the government are some of the most complex and dense in our legal system and are dealt with within the Federal Judicial System. Understanding whether you have a claim and what to do about it are matters which should be considered confidentially with an attorney who understands this complex body of law.
First, consult with an experienced attorney. Second, do not discuss the matter with anyone other than an experienced attorney. Allison Legal has extensive experience in the federal arena and competence in assessing all types of possible qui tam matters.