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Is Your Whistleblower Case a Slam Dunk? Include Specifics (Pt. 2)

Any whistleblower who plans on bringing a False Claims Act (aka Qui Tam) law suit should understand that his or her state also has its own False Claims Act statute. If states (such like California) have similar enough statutes to the federal False Claims Act when it comes to liability, effectiveness, and penalty amount, the specific state gets extra money from any federal law suit reward.  This is an incentive many states are eager to benefit from.  (See Office of Inspector General of the U.S. Department of Health and Human Services:  Therefore, sometimes a Qui Tam law suit will involve both federal and state statutes.

In addition, many of the Qui Tam cases result from health care fraud. Some examples of these are when a provider of health care services such as a doctor or hospital bills for services that were not provided or a higher rate of reimbursement for the services. Some of the health care companies would illegally bill the government for such instances as (1) substandard services, (2) by fraudulently using higher diagnostic codes, or (3) by falsely certifying the medical necessity of medical procedures. Alternatively, these companies would realize that they have credit from their services that they have to pay the government back, but the companies do not reimburse the government within the 60 day time frame.

Importantly, the third element of a false claim, that the defendant whistleblower “knew the claim or statement was false or fraudulent,” has been the focus of many federal court opinions. Knowledge is a requirement for all types of FCA claims and is defined under the FCA as occurring when “a person, with respect to information (1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.” (31 U.S.C.§ 3729) (emphasis added).

Finally, the plaintiff/relator must serve on the government (and not file with the court) a memorandum detailing the facts of the Complaint together with copies of all documents plaintiff believes are relevant to his claims. The government can then investigate the claims and has 60 days to either intervene in the case or decline to do so (or seek an extension). Typically the government will request numerous extensions as it completes its investigation. Therefore, it is crucial that the plaintiff/relator provide the government with as much detail as possible because, as we saw in last week’s federal case decision, the defendant can move to dismiss the case. See for more information about how to contact an employment attorney and bring the strongest case possible.