Whistleblowers serve the public when they expose fraudulent healthcare billings to Medicare and other government programs. Laws that enable qui tam lawsuits allow whistleblowers to benefit themselves as well as the public. When they prove that the government was defrauded, prevailing whistleblowers are allowed to keep a percentage of the award against the fraudulent biller. Medical billing and coding specialists often provide a vital part of the whistleblower’s proof.
Qui Tam Lawsuits
Qui tam is the short version of a long Latin phrase that might be translated as “suing on behalf of the king as well as himself.” While America is not ruled by a king, qui tam is used in modern American law to refer to a lawsuit brought on behalf of both a whistleblower and the government.
Most qui tam lawsuits are brought under the federal False Claims Act or equivalent state law. The False Claims Act allows individuals who are not government employees to sue government contractors who commit fraud against the government. For the purpose of the False Claim Act, a contractor is someone outside of the government who bills the government for goods or services.
In recent decades, most suits under the False Claims Act have been filed against doctors, clinics, hospitals, and other healthcare providers who deliberately overcharge for services provided (or not provided) to patients receiving Medicare, Medicaid, or other public health benefits. The suit seeks recovery of payments made because of fraudulent billings.
The False Claims Act rewards the person who brings the suit by allowing that person (known as the relator) to keep a percentage of any award or settlement. The U.S. Department of Justice has the option of taking over the case. If it does so, the relator receives a smaller share of the proceeds. However, statistics suggest that the relator is more likely to prevail when the government intervenes.
Medicare Fraud Whistleblowers
False Claims Act lawsuits are typically brought by whistleblowers. In cases involving fraudulent medical billing, relators are often employees of the healthcare provider who decide to blow the whistle on their employer’s fraudulent billing practices. In some cases, relators are patients who realize the government is being billed for services that they never received.
Whistleblowers who bring a False Claims Act lawsuit must file a complaint under seal in federal court. All parties keep the lawsuit confidential while it is pending.
The relator must provide a copy of the lawsuit to the U.S. Attorney in the district where the lawsuit was filed. The government then decides whether it wants to intervene in the case. In addition to improving the likelihood of a favorable outcome, government intervention assures that government bears the cost of bringing the suit. Most relators are willing to take a smaller share of the ultimate proceeds in exchange for having the power of the federal government on their side.
The Justice Department reports that more than 600 qui tam lawsuits have been filed in each of the past several years. The government recovered at least $2 billion, and often more than $4 billion, from whistleblower lawsuits in each of those years. False Claims Act lawsuits are particularly attractive to attorneys because a fee-shifting statute requires the defendant to pay the fees of the prevailing party.
When the relator gives the government a copy of its complaint, he or she must also provide a detailed disclosure statement. The statement must disclose “substantially all material evidence and information” that the relator has gathered in support of the claim.
To comply with the requirement that a disclosure statement should include “substantially all material evidence,” relators will want to gather as much evidence as possible before filing suit. A brief summary of the facts will not comply with the law and will probably not persuade the government to intervene.
Including expert evidence in a disclosure statement enhances the likelihood that the government will decide to pursue the case. An expert’s review of billings assures the government attorneys that solid evidence supports the whistleblower’s claim.
Evidence Provided by Medical Billing Experts
Whistleblowers and their attorneys often retain the services of a medical billing expert well before a False Claims Act lawsuit is filed alleging fraudulent billing in Medicare or Medicaid cases. A medical billing expert can identify billing discrepancies and help whistleblowers establish the existence of fraudulent billing practices.
Medical billing experts decode the charges in medical bills. Healthcare providers are able to conceal fraud because the codes used in medical bills are indecipherable to people who lack experience with medical billing systems. Several different coding systems may appear on medical billings that date back many years, including Common Procedural Terminology (CPT), Healthcare Common Procedural Coding System (HCPCS), Diagnosis Related Groups (DRG), International Classification of Diseases (ICD), and National Drug Codes (NDC)
A medical billing expert can compare codes to the treatment that was actually rendered. Experts identify services that were miscoded. Incorrect coding often induces the government to pay more than the allowable cost for the service or drug that was provided. By building a database, a medical billing expert can itemize fraudulent billings, making it possible to calculate the government’s losses.
A medical billing expert helps relators win cases by telling a story that jurors understand. The expert’s report reveals fraud by piecing together evidence from a history of billings. Billing experts give realtors and their lawyers the ammunition they need to demonstrate a pattern of irregular billing that rules out the likelihood of an innocent mistakes.
The Benefit of Independent Experts
In some cases, the whistleblower in a qui tam lawsuit was responsible for the defendant’s billings and was fired after objecting to fraudulent practices. Relators sometimes attempt to act as their own expert witness when they have knowledge of fraudulent billings.
While whistleblowers who prepared billings have valuable knowledge of their employer’s fraudulent intent, they also have a vested interest in the outcome of the case. A jury might question the credibility of a whistleblower who has a financial stake in the outcome. An independent expert who can confirm the existence of fraudulent billing practices strengthens the relator’s evidence and enhances the likelihood of a favorable outcome.