False Claims Act Litigation

What Is Qui Tam Litigation?

A qui tam or whistleblower action under the Federal False Claims Act or similar state statutes allows individuals known as “relators” to act as “private attorney generals” and sue a company or person who has defrauded the government. If the government feels the whistleblower’s claim has merit, it will opt to intervene and take over the lawsuit as its own. However, because of resource constraints or other reasons the government may decline to intervene in qui tam litigation and the relator may pursue the case on his own.

An abbreviation of the Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur” or “[he] who sues for the king and for himself,” qui tam’s financial incentives for the relator encourages reporting of fraud that would otherwise go undetected and unaddressed by the government. Qui tam recoveries against healthcare providers can be over one hundred million dollars. The financial reward for the relator is usually 15%-25% of the money recovered but the total amount ultimately depends on how much work the relator put into the litigation and on if and when the government intervenes.

Qui tam litigation has enabled the federal government to recover billions of taxpayer dollars lost due to fraudulent activities. Nowhere have qui tam cases been more necessary – or generated more publicity – than in the healthcare industry, specifically against Medicaid and Medicare providers. According to a 2016 audit prepared by the Government Accountability Office, ten percent ($16 billion) of total Medicare Advantage payments were classified as improper. When combined with overpayments by Medicare the total reaches $60 billion. Below are some of the common violations that will generate a qui tam case against a Medicare or Medicaid provider:

Phantom Billing

Phantom billing occurs when a provider submits claims for services never provided.

Billing for Unnecessary Procedures

This occurs when a physician orders and bills for unnecessary medical tests and procedures. Both the ordering physician and the facility or practitioner that provides the goods or services may violate the False Claims Act. For example, an MRI is ordered when only an x-ray is needed. The False Claims Act violation may involve kickbacks to the ordering physician that violate other federal laws.

Upcoding

Upcoding is a type of fraud where healthcare providers submit codes for more complex, time-consuming, and expensive procedures than were actually performed.

Kickbacks

The Anti-Kickback Statute passed by Congress in 1987 provides criminal penalties for rewarding (money, trips, meals, gifts) a physician for referral decisions involving services or treatments covered by Medicare or Medicaid. Claims have been brought under the False Claims Act using kickback violations because a claim is immediately “false” — even if performed properly — since it violates the AKS.

The Stark Law

The Stark Law is a healthcare fraud and abuse law that prohibits self-referral by the physician of a Medicare or Medicaid patient. A physician cannot refer a patient to receive “designated health services” from entities with which the physician or an immediate family member has a financial relationship.

How RPC Can Help with Qui Tam Cases

RPC has assisted parties in healthcare-related qui tam litigation and is available to work with relators and healthcare providers. In recent cases, RPC provided:

• Expert analysis for relators in the Citizens Medical Center’s qui tam case and the civil case that preceded it.
• Expert analysis for relators in the Fulp / McAllen Medical Center qui tam case involving improper delegation by a surgeon and improper payments by an implant distributor.
• Expert analysis for relators in a qui tam case involving failure to make timely refunds of overpayments by a large physician group
• Expert analysis for relators in a qui tam case involving billing for unnecessary services by a medical device company

In these cases, RPC provided various types of analysis needed to establish the violation and damages:

• Organization and analysis of large claims data bases
• Analysis of individual medical and billing records
• Economic analysis of healthcare markets
• Determination of fair market value for services

If you would like to discuss how our resources and experience with qui tam litigation can help your clients, please contact us at no obligation, 512-371-8000 or info@rpcconsulting.com.