What Should I Do If I Think I Have a Case?
Filing a whistleblower complaint can seem daunting. You may be unsure whether you have enough evidence, and if you do, you might not know how to begin the process. You might even worry about potential retaliation. Since whistleblower cases can last for years, you might also debate whether your claim is worth pursuing.
A whistleblower attorney can offer direction. While you're legally required to have an attorney to pursue certain cases, an initial consultation can help determine if you have a strong claim. Here are the steps you can take to become a whistleblower.
1. Determine if You Have a Whistleblower Case
You may have a case if the evidence suggests actual fraud against the government. This fraud involves knowingly presenting false or manipulated payment claims to receive higher reimbursements or illegally avoiding payment obligations. These false claims must be made deliberately or with reckless disregard for the truth. Honest billing mistakes don't count as fraud.
Fraud examples include:
- Double-billing or charging the government twice for the same service.
- Adjusting patient conditions on paper so Medicare pays more.
- Performing medically unnecessary services to bill government programs.
The qui tam provision of the False Claims Act lets individuals file lawsuits on behalf of the government. These individuals are often employees, former employees, or contractors who encountered the fraud through work. To file a case, you must be the original source, meaning you must have independent knowledge of the fraud or materially add to publicly disclosed allegations.
2. Document What You Know
Gather all fraud evidence. Evidence can include:
- Screenshots of digital communications: These screenshots can include internal emails or text messages where companies have directed or acknowledged the fraud.
- Billings and claims records: Receipts could show manipulation or upcoding records. Upcoding is a fraudulent tactic in healthcare where a provider inflates service costs to receive higher Medicare or Medicaid reimbursements.
- Audit trail or compliance reports: An audit trail can show whether a company has ignored its own policies, which contributed to the fraud.
- Government contracts: Government contracts can indicate discrepancies between a company's promised and delivered services.
Your evidence strength influences the outcome. The documentation must connect the fraudulent act to the government's money. Only preserve and collect documents you are authorized to access.
3. Consult a Whistleblower Attorney Before You File
The processes involved in a whistleblower lawsuit aren't always straightforward. Consulting an attorney can help you prepare adequately before filing a case. An attorney can help determine the strength of your case and what other evidence you may need. The qui tam filing process also requires an attorney, since you're filing on behalf of the U.S. government, not yourself.
Critical mistakes, such as mishandling classified documents, can affect your winning chances. Incorrectly reporting internally also risks retaliation. With an attorney, you're protected by the attorney-client privilege, which protects confidential communications.
4. File a Qui Tam Complaint Under Seal
The False Claims Act requires you to file before a judge in a federal district court. You file the claim in the name of the U.S. government, not your own name. This claim will remain under seal for at least 60 days, keeping it confidential. This seal protects your whistleblower identity.
You must provide the government with a copy of this sealed complaint and a written disclosure of your evidence. The government will use these documents to investigate during the 60-day period, which could be extended if necessary.
You must file the claim within six years after the fraud or within three years after a responsible government official knew or should have known about the fraud, whichever is later. You can no longer file a claim past 10 years since the fraud occurred.
5. Wait on the Government to Decide Whether to Intervene
The government will decide whether to intervene or pursue the case after 60 days, or after any extension. Different factors can affect the government's decision, including:
- The strength of the evidence.
- The connection of the claim to government payments.
- The size of potential recovery.
- If the case is worth the use of government resources.
Once the government intervenes, it takes the responsibility of prosecuting the case. Otherwise, you have the right to take action and litigate the case on the government's behalf. You'll need to keep working with your attorney.
If the government takes the case, they'll serve the defendant or the company in question. The company will be informed of the lawsuit and will identify you as the whistleblower.
6. Negotiate Resolutions and Your Whistleblower Reward
If the government intervenes and wins the case, you can receive about 15%-25% of the proceeds. The government can settle even if you object, as long as the settlement is fair and reasonable. If the government does not intervene and you pursue the case on your own, you can get 25%-30% of the proceeds. You'll be negotiating the resolution with your attorney.
The company in question would be liable for three times the government's damages, plus civil penalties per false claim. Civil penalties cost $13,946-$27,894. You can also recover attorney's fees, reasonable expenses, and other costs for filing.
- Reasonable expenses: These out-of-pocket expenses can include payments for expert witnesses, investigations, and document reviews.
- Other case costs: These costs can cover filing fees, deposition transcripts, and other expenses that come with the case.
These expenses are paid for by the company in question. Losing the case means shouldering all of the costs. If you want to dismiss a case, the court and the Attorney General must give written consent. This consent is necessary since you filed on behalf of the government.
7. Remember Your Retaliation Protections
Some people worry about the potential retaliation that could happen after you file a whistleblower complaint. The False Claims Act has antiretaliation provisions meant to protect you from retaliation against lawful acts you perform to pursue the claim. These acts include investigating, initiating, testifying, or assisting in the filing of the case. Although employers cannot legally discharge, demote, threaten, suspend, harass, or discriminate against you, retaliation could occur.
You have three years to file a complaint against any retaliation activity. The clock starts the day the retaliatory act occurred. Causation can make it easier to prove retaliation, which means your employer must know you've filed a lawsuit. However, retaliatory acts can be proven even if they occurred during the first 60 days, which is the period when a case remains sealed.
Frequently Asked Questions
People asking how to file a whistleblower case also typically ask the following questions:
How long does a whistleblower case take?
Whistleblower cases could take years, depending on the case complexity and whether the government intervenes. For instance, the KBR Iraq War case, which led to a $108.75 million settlement, took over a decade. The lawsuit against IPC The Hospitalist Company was filed in 2009 and was settled only in 2017. Consider that, at a minimum, the government has 60 days to review evidence before deciding whether it would pursue a case.
Can I file anonymously?
You can file anonymously, but only until the seal has been lifted. Once the government, or you, serve the defendant, the company will identify you as the whistleblower. Working with an attorney and the antiretaliation provisions can help offer protection.
What if I'm not sure I have enough evidence?
If you're not sure whether you have enough evidence, an attorney who specializes in whistleblower cases can help. They will inform you of any additional steps to take. Even if the government decides not to pursue a case, you can still proceed with litigation.
Why Trust Goldberg Kohn
At Goldberg Kohn, we've been representing whistleblowers who discover fraud against the government for over 50 years. We're equipped with the experience to handle serious cases, even if you plan to go against large, established companies. We've litigated and won cases that the government has denied. Because whistleblower cases are our focus, you can trust that we can guide you throughout the whole process.
Take the Next Step With a Whistleblower Attorney From Goldberg Kohn
Don't navigate your situation alone. Our free, confidential case review can help clear any uncertainty about your case. We don't charge fees unless we win. We'll help you fight fraud against the government, while protecting your rights along the way. Schedule a consultation today to get started.
