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whistle  A whistleblower is a person who reports fraud, corruption or other wrongdoing, usually, but not always, at their place of work.  Most states have laws that protect whistleblowers and prohibit employers from firing, demoting or retaliating against whistleblowers.

When a whistleblower sees fraud committed against the government, he or she has the opportunity to become a qui tam whistleblower under the False Claims Act, which is a federal law that encourages whistleblowers to report fraud and thereby receive a reward for their efforts.

We often get the question, “How do I become a whistleblower?”

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A study done by the National Contract Management Association revealed that in 2014, at close to three billion dollars, the Department of Defense accounted for two-thirds of the nation’s corporate contract spending.  This vast amount of money, however, provides ample incentive for dishonest contractors to bilk the government and taxpayers, and potentially put the lives of U.S. military members at risk.  One defense against these unscrupulous fraudsters is the False Claims Act.

During the Civil War, dishonest contractors sold the Union Army decrepit horses, faulty weapons, and rancid food. In response, Congress passed the False Claims Act on March 2, 1863. Abraham Lincoln was President when the False Claims Act was passed and it is sometimes referred to as the “Lincoln Law.”

The False Claims Act permits private individuals to bring lawsuits on behalf of the government for the fraudulent conduct.  The qui tam provision of the False Claims Act provides that the whistleblower who brings the action may share in any recovery by the government.

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On November 8, 2016, the United States Attorney’s Office for the Southern District Florida announced the conviction and sentencing of two defendants in a Medicare Part D fraud case.

What is Medicare Part D?

As most people know, Medicare is a federally funded program that provides free or below-cost healthcare benefits to certain individuals, primarily the elderly, blind, and disabled.  Medicare offers different types of benefits through program “parts.” Part D of Medicare, known as the Medicare Part D program, subsidizes the costs of prescription drugs for Medicare beneficiaries in the United States.

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Each year, Medicare beneficiaries can make changes to their Medicare health plans and prescription drug coverage between October 15 and December 7, during the Medicare Open Enrollment Period.  Unfortunately for consumers, this period is also open season for Medicare scammers.

Here are some common ploys that Medicare scammers use to try and take advantage of seniors and ways to outsmart them:

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Book Review: Grisham’s “The Whistler” by Florida Business Attorney Adam Rabin

downloadThe hype is upon us with the release of John Grisham’s new legal thriller, “The Whistler.”   While it feels like yesterday when I was a law student and could not stop turning the pages of “The Firm,” I am particularly excited for Grisham’s new release in a different way.  First, this Grisham novel is set in Florida.  Second, Grisham focuses on one of my firm’s areas of practice: whistleblower law.  Here is how Amazon has summarized the book:

This book may be the “most electrifying novel of the year, a high-stakes thrill ride through the darkest corners of the Sunshine State.”  The book speaks to how our judges are expected to be honest and wise and that their integrity and impartiality are the keys to our judicial system.  The judicial system, however, is shaken when a judge takes a bribe.

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On August 30, 2016, the Treasury Inspector General for Tax Administration issued a report following an audit of the IRS Whistleblower Program. The audit was conducted to determine whether whistleblower claims are being appropriately and timely processed for investigation and examination.   The report confirms much of what lawyers who practice in this area already know.

First, the report confirmed that the program has the potential for great success.  From fiscal year 2011 through 2016, the IRS collected more than $2 billion of unpaid taxes based on information reported by whistleblowers.   While this sounds like a great success, lawyers who practice in this area, such as McCabe Rabin, P.A., believe this is just the tip of the iceberg.

The report also confirmed a number of problems with the IRS whistleblower program, most notably, the IRS’s failure to contact whistleblowers to clarify allegations and the IRS’s failure to have proper supervision and oversight to make sure that whistleblower claims are timely processed and referred for examination.  The report makes 10 specific recommendations for improving the manner in which the IRS receives, processes, and handles IRS whistleblower complaints.

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How do you know if you have a Qui Tam Case?

Under the False Claims Act, persons who know about fraud against the federal government can receive a reward for reporting that fraud and helping the Government recover money from the wrongdoer.    We receive many calls from potential whistleblowers who wish to report serious fraud against Government.  Unfortunately, we cannot take every case where fraud exists.   Here is a list of sample questions to help you determine whether you might have a potential False Claims Act qui tam case.

  1. Does your employer do business with the federal or state government?  This would include Government vendors or contractors as well as healthcare companies that receive payment from Medicare or Medicaid.
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If you are considering blowing-the-whistle on government fraud, you are probably wondering what happens once you file a qui tam lawsuit under the False Claims Act. The False Claims Act, 31 U.S.C. § 3729 et seq., contains a very detailed process for bringing a whistleblower case.

Steps involved in a qui tam case

Before the qui tam complaint is filed, the whistleblower (also called the “relator”) must make a “pre-filing disclosure” to the government through his or her attorney.  The pre-filing disclosure contains substantially all of the evidence that is known to the relator about the fraud.  The pre-filing disclosure is not filed with any court and is not available to the defendant.

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Deadly Healthcare Fraud in Florida and Beyond

Do you think Medicare and Medicaid fraud is a victim-less crime? Think again.  Many times, health care fraud only causes monetary damages to the government and taxpayers.  Depending on the type of fraud, however, it can also result in injuries to or even the death of Medicaid and Medicare beneficiaries.  Unscrupulous fraudsters who fail to provide adequate care required by Medicare and Medicaid, not only scam the government and taxpayers, they put innocent lives in jeopardy.

Take for example a recent criminal healthcare fraud case in Maryland against Alpha Diagnostics, LLC, a portable diagnostic services provider of x-rays, ultrasounds, and cardiologic tests.  According to the Department of Justice, the testimony and evidence presented at trial showed Alpha defrauded Medicare and Medicaid by falsely representing that the tests had been interpreted by licensed radiologists, when in fact, the tests had only been reviewed by non-physician employees of Alpha.  In furtherance of the fraud, Alpha employees allegedly created fictitious reports purportedly created by an actual licensed physician to which they would forge the licensed physician’s signature.

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In America today, many hospitals are owned and controlled by massive corporations that operate large chains of hospitals throughout the country.  As a result, your local hospital may not be locally owned or controlled.  Instead, it might be more akin to a McDonald’s restaurant, owned and controlled by some large corporation with a faraway headquarters.

Although this type of “chain” ownership can often lead to efficiency, it can also lead to serious problems.  More and more often, the day-to-day decisions of running hospitals are made by business people who work in the corporate suites, not doctors and nurses who actually deliver care to patients.

Many times, these decisions are made to drive profits rather than to serve the best interests of the patients.  Many times these decisions can also lead to Medicare and Medicaid fraud.