If you believe your employer is committing fraud, your first question will probably be: What should I do now? There is no one right answer to that question, but there are certainly steps that you can and should take in order to protect yourself and advance your interests as you decide what to do.
First, and most importantly, reach out to an experienced attorney sooner rather than later. That attorney can advise you on your rights and on the best ways to bring your information to the government, and will also advise you on important practical issues, such as whether and to what extent you can copy and remove records from your employer’s office. An attorney can give you objective, confidential advice about whether your claim is really worth pursuing. A good lawyer will talk through the professional consequences that might come with blowing the whistle and will not pressure you to take any particular action. The truth is very few lawyers have the requisite experience to represent whistleblowers, so do your homework but don’t delay in contacting an attorney.
To be a successful whistleblower, you should immediately begin thinking like an investigator or a prosecutor. Ask yourself this simple question, “How would I prove my case to an objective, and maybe even skeptical, juror?” Often clients come to us adamant that their employer is committing fraud, but when pushed for details they can’t provide nearly enough specifics to justify filing a case. Successful whistleblowers gather specific evidence that demonstrates and establishes the fraud. For example, if you believe your employer is upcoding, then you need specific examples involving specific patients (or lab samples or other tests) that demonstrate the essence of your claims. “What about HIPAA?” you might ask. Fortunately, Congress is one step ahead of you, and has expressly carved out an exemption from the privacy rules that allow a whistleblower to share otherwise confidential patient information with a lawyer if there is a good faith basis to believe Medicare or Medicaid fraud is occurring.
Our clients have brought us evidence ranging from medical charts to recorded conversations with supervisors. Gathering this evidence though can be tricky. There are numerous pitfalls that would be whistleblowers must avoid. Documents reflecting the advice of the company’s lawyers, for example, raise all kinds of privilege issues. Thus, the most prudent course of action is to begin working with an experienced whistleblower attorney as soon as possible to navigate these complicated waters. Since the False Claims Act requires a whistleblower to file a case with a lawyer rather than pro se (i.e. on your own), there is no good reason to delay interviewing potential lawyers to handle your case.
It will also be helpful if you start making your own notes about the fraud or other misconduct you are observing. The more details the better. Government investigations can take a very long time, and important events and conversations that are clear to you today may become hazy over time. So if you see or hear something that you think is important, make sure to write it down and to save those notes. If you can’t make a copy or snap a picture of an important document, write down what it says, why it’s important and where that document is saved on a computer or in a filing cabinet. Memories fade and so take notes that you will understand many months or years later.
There is no obligation under the False Claims Act that you report the fraud internally. Yet some of our clients feel that they should give their employer the opportunity to do the right thing. In many instances, you can report suspected fraud anonymously via an internal hotline. Additionally, individuals with evidence of Medicare or Medicaid fraud can file a complaint with the Office of the Inspector General for the Department of Health and Human Services. See https://oig.hhs.gov/fraud/report-fraud/index.asp. Of course, the fact that particular options exist does not mean that they will all be good options for you. Fear of retaliation or other legitimate concerns can make these decisions difficult. With the risk of repeating ourselves, get to an experienced lawyer immediately to talk through these issues because you need objective advice before taking any actions that could have such serious personal consequences.
In summary, once you’re convinced that a person or entity is committing fraud against the United States, you should do three things. First, gather as much specific evidence demonstrating the fraud as possible. Second, decide if you should report your suspicions internally. Third, retain an experienced lawyer as soon as possible to guide you with all of the above. We’ll have more on how to find the right lawyer for your case in next week’s post.
To learn more about our Whistleblower & Qui Tam practice, click here. This is the second in our six part series on the ins and outs of exposing fraud against the government. Be on the lookout for next week’s edition discussing choosing the right attorney to represent you.