How to Report Medicare Fraud Cases

This video features Jason T. Brown, an Employment and Labor Law attorney based in New Jersey.

Whistleblower Attorney Explains Dos and Don’ts

Video Transcript:

Jason Brown:

Act normal, but act. And one of those acts should be consulting with whistleblower counsel who can navigate you through this perilous road, but it could be very economically lucrative if you do this in the right way.

Rob Rosenthal:

If you know someone has been scamming the Medicare system and you want to blow the whistle what's in it for you? Well, we're going to find out right now because that's what we're going to ask the lawyer.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com. My guest is New Jersey-based attorney, Jason Brown. Jason, good to see you again. Thank you for helping us out.

Jason Brown:

Good morning. Always great to see you.

Rob Rosenthal:

So let's just start. Who are we talking about? Usually, who would be committing Medicare fraud? Are we talking about doctors, institutions, individuals? Help me out there.

Jason Brown:

Well, it could be the first two, doctors and institutions. Individuals could be committing Medicare fraud, but are generally not addressed under the False Claims Act, because that's generally a private individual who's scamming the system. What the False Claims Act and the lofty whistleblower awards come from, is when you blow the whistle on systemic Medicare fraud within the context of some sort of entity like a hospital or a pharmaceutical company.

Rob Rosenthal:

And the whistle blowers can get an award. How is that determined?

Jason Brown:

Well, each year hundreds of millions of dollars go to whistleblowers who blow the whistle the right way, and hundreds of millions of headaches go to those that blow the whistle the wrong way. Part of that is determined by, number one, the success of the action. Do you prevail? So it's really important to understand before even commencing an action, whether or not you have a case that's potentially winnable. Also, you look to the other Cs. How candid is the individual blowing the whistle with the government? How long have they let the fraud go on before blowing the whistle? Another C is cooperation. There's long periods of time after blowing the whistle in which you don't hear from the government, but when they want something, they want it right away, and they expect you to be cooperative. And another C is counsel. It's really critical to have an attorney that seamlessly interfaces with the federal government under the False Claims Act, which addresses Medicare fraud. And that's why my firm has had a lot of success in the past regarding cases based upon my background as a former FBI Special Agent and legal advisor.

Rob Rosenthal:

The only thing I know about dealing with the government is it's always complicated, so having somebody who has experience with these kinds of things makes a big difference too, right?

Jason Brown.

Oh yeah, absolutely. We strongly encourage individuals who are contemplating blowing the whistle to consult with a firm that focuses its practice on whistleblower law and protecting whistleblowers, like we do. Even if it's not our firm, it generally is more effective if you have a firm that has a focus of their practice and has individuals who formally work for the federal government, because nothing is easy with the federal government.

Rob Rosenthal:

So we're talking about awards, which is, there's a monetary benefit to somebody blowing the whistle. Is there a percentage? Does it change? How does that work?

Jason Brown:

Well, under the False Claims Act, the percentages can vary. One of the critical factors is whether or not the government intervenes or it doesn't. If the government intervenes, meaning that after the complaint is teed up to them, they decide they will be at the helm of the litigation, then generally a whistleblower is entitled up to 25% of whatever the government recovers. If the government doesn't intervene and a private firm like ours litigates the case, you can go up to 30%, but there's a little bit of a trade-off, because if you look at the numbers and the statistics over the years, generally when the government intervenes the case value averages out to be about 13 million; if it doesn't, the average is about 3 million. So you certainly would rather have 25% of the bigger number than 30% of the smaller number, but a win is a win. So if you teed up right, you still can walk away with a lot of money, because 30% of three million is still nearly a million dollars.

Rob Rosenthal:

Yeah, I was going to say, so we're talking about some pretty big dollar awards here.

Jason Brown:

It can be quite a big award for doing the right thing.

Rob Rosenthal:

Are there some things you can do to maximize the amount of award you can get?

Jason Brown:

Yeah. Certainly you want to blow the whistle early because you're going to be graded on how long you let the fraud go on without you contacting the government. You need to stay on top of the action. What I mean by that is, with the right counsel, even though you don't hear from the government, your attorney should be reaching out for the government affirmatively saying, “Hey, is there anything you need?” Also for the right attorneys that understand how to successfully navigate whistleblower statutes, if you have information about corruption within the context of the company, oftentimes there's more than one cause of action, not just the False Claims Act for Medicare fraud or Medicaid fraud, but you may want to look. In California, for example, they have private insurance fraud statutes. Illinois, private insurance fraud. New York, tax fraud. You also have anti-money laundering statutes, IRS whistleblower, SEC whistleblower, CFTC whistleblower, and a whole bunch of other statutes. So when you have this opportunity and you have the information, you want to maximize your case, you really need to distill the fact pattern and find out all the possible avenues for recovery and take advantage of those.

Rob Rosenthal:

What are some things whistleblowers should do and shouldn't do, Jason, what's your advice?

Jason Brown:

Well, they certainly should not take matters into their own hands. The saying is, “Don't be a cowboy or cowgirl,” because if you don't know how to ride the horse, it's going to buck you, and you're going to lose. Under the False Claims Act itself you're not allowed to file without an attorney because the government doesn't want people making bad law. I always say this, but you should not contact the internal company reporting hotline, as anonymous as it may be. I watched a Simpsons episode the other day where somebody in that universe called the anonymous hotline and Mr. Burn came down a second later and goes, “You're fired.” Similar conduct, although maybe not quite as fast, will generally happen at the company where you have just set the machine in motion to get yourself fired. Also, surprisingly enough, you should not directly report it to the government without speaking with counsel first, because we have plenty of people who reported the matter to the government, the government ran with the matter, and five years later they read in the paper that the government settled the case for $200 million, they want to know where their money is, but they may be entitled to zero because they did not blow the whistle in the right way.

Certain things to do is to try to gather evidence at the direction of an individual, potentially counsel, to make sure your case is preserved, but don't go gathering evidence you're not supposed to normally have access to because that can get you fired. HIPAA is interesting, because there's materials protected by HIPAA, but there's exceptions for Medicare fraud. So you really need skilled advice in navigating that. You should act normal, but act, and one of those acts should be consulting with whistleblower counsel who can navigate you through this perilous road, but it could be very economically lucrative if you do this in the right way.

Rob Rosenthal:

What about retaliation if somebody does blow the whistle, does hopefully go through the proper channels, contact you. Do they need to worry about retaliation?

Jason Brown:

Well, there's always a specter of retaliation that can manifest, but you have to remember in the context of the False Claims Act, cases are filed confidentially under seal where the defendant isn't even aware of it for several years. The law firm that's handling the case should guide you regarding where your parachute is and what your options are when it finally becomes unsealed, and also there's very strident protections under the H portion of the statue that entitles an individual who was retaliated against after the company becomes aware to double damages plus attorney fees and expenses. So really, the law really contemplates that if somebody does anything, the law has got your back in that context, and we do as well. We protect whistleblowers. That's our job. We admire individuals who have the courage to come forth with information, and we want to make sure they're protected at the end of the day.

Rob Rosenthal:

When we started off you mentioned that your first determination is does somebody even have a case. Most people may not even know how to tell whether they have a case or not, so is there any fee for contacting you, finding out, giving your information to even determine if they have a case to pursue?

Jason Brown:

There is no expense at all. We give people free confidential consultations. There are subtle matters that make a case viable versus dead on arrival, versus a $50 thousand case versus a $50 million case, and information that individuals may not even know that they know. For example, with Medicare fraud, inherently, if your hospital or provider is paying kickbacks or finder fees for Medicare patients to be shepherded in their direction, that may be an inherent violation under the law, under the anti-kickback statute that entitles the government to get really big damages; and you would also be entitled to a big share at the end of the day if successful. Also, if the hospital provider then refers patients to something else it owns without disclosing that, that could be something called a Stark Act violation because of self-dealing. So yeah, you really need somebody who knows what they're doing to talk through what your facts are and to find out what, if anything, is actionable at the end of the day.

Rob Rosenthal:

Finally, Jason, I don't know if you can answer this or not, but how big of an issue would you say is Medicare fraud? Is there a lot of that going on? What do you suspect?

Jason Brown:

Each year it seems to be two or three billion dollars that are recaptured through the False Claims Act, but the attorney generals generally estimate that there's 10 times more than that going on, so $30 billion worth of fraud. Now, if we were able to successfully hit that, every single piece of fraud, and you do the math, even 20% of that is, I think, roughly $600 million for whistleblowers each year for doing the right thing.

Rob Rosenthal:

I guess the other thing to keep in mind is that fraud is against the government, and that's our taxpayer dollars that are being defrauded.

Jason Brown:

Yeah, at the end of the day, it ultimately hurts the taxpayer; it hurts everybody. It strains the system and makes quality of care worse because people are doing it for the billing, not for the best patient interest. Everybody is mindful, thinking about a big tax increase that’s about to creep in, and we need to keep costs under control, and this is one way to keep costs under control.

Rob Rosenthal:

I say it every time, Jason, as always, interesting. Very informative talk. Thank you for taking some time to answer questions.

Jason Brown:

As always, thank you for having me.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been New Jersey-based attorney, Jason Brown. Remember, if you want the very best information or you’d like to be able to choose a lawyer that lawyers choose, make sure to go to askthelawyers.com. Thanks for watching, everybody. I'm Rob Rosenthal with AskTheLawyers™.

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