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Do Whistleblower Protection Laws Apply to All Industries?

Unraveling what Whistleblower Protection Laws mean for you.

whistleblower protection lawWhistleblower Protection Laws aren’t as simple as one body of legislation. Federally, over 20 laws address reporting crimes and other wrongdoings. Each state has its own laws governing retaliation and the like. Professional associations have their own methods for managing complaints within their respective industries. Outcomes depend on the types of information you are sharing. They also depend on the role you play in the offending organization. Finally, they depend on whether or not you use the appropriate methods for calling attention to the problem.

What Is Whistleblowing?

The broadest definition of whistleblowing is reporting on criminal or otherwise immoral conduct by a company, organization or individual. Many states narrow the term to mean employees – perhaps limited to those employed by the government – who are reporting on criminal activity committed by their employer. Where you live and work, the type of work you do and the offenses you’re reporting on will all determine whether you’re covered under Whistleblower Protection Law.

Speaking out about wrongdoings in the workplace is a bold move regardless of what legal protections are in place. The government understands workers make sacrifices to bring attention to problems. Whistleblowers might face social isolation, threats, financial stress and other consequences, not to mention the guilt of turning friends and associates into the authorities for actions which could have noble intentions.

Take Medical Insurance Fraud

Medical insurance fraud is a good example. An assistant in a dental office might notice additional billing for services no one has rendered. The dentist explains the fees cover co-pays for parents who can’t afford them. It sounds legitimate enough, but experience shows a dentist who will fudge copays will eventually put patient care at risk to increase profits. It’s a slippery slope.

Under whistleblower laws, it’s possible the assistant could go to the authorities with fraudulent billing complaints or sue the dentist through a qui tam case. When individuals bring suits against those who defraud the government, they not only put a stop to waste, they have the opportunity to collect a healthy portion of judgments and settlements. The provision is part of one of the oldest laws on whistleblowing, the False Claims Act, otherwise known as Lincoln’s Law.

Every industry has some protection afforded to whistleblowers, even national security and the military. In fact, the Whistleblower Protection Act Former President Ronald Reagan signed into effect in 1989 had concern for federal employees at the forefront. However, whistleblowers in every industry have protection available when turning employers in for various infractions.

Examples of Whistleblowers Across Industries

  • Linda Tripp – White House staffer during the Clinton Administration who went public with the President’s extramarital affair with young intern Monica Lewinsky
  • Frank Serpico – New York police officer who came forward with complaints about corruption within the department
  • Karen Silkwood – A chemical technician who worked for Kerr-McGee Cimarron Fuel Fabrication Site and raised concerns regarding the company’s handling of plutonium
  • Jeffrey Wigand – A tobacco company executive who admitted the industry knew their products were addictive
  • Mark Whitacre – An executive for a commodities trading company, informed the FBI of company price-fixing
  • Sherron Watkins – Enron Corp. executive who exposed the oil companies’ fraudulent practices

Pros and Cons of Being a Whistleblower

In many cases, whistleblowers receive a portion of settlements or court judgments against the companies they expose. In other situations, they’re the subjects of books, movies or awards. While fame and fortune don’t always follow, blowing the whistle on important matters can result in major financial gains. It can also lead to jail time.

In 2010, an Army soldier named Bradley Manning released over 750,000 classified documents online through WikiLeaks to support claims of misconduct by U.S. forces. Manning wound up facing a potential death sentence, ultimately sentenced to 35 years at Fort Leavenworth.

Similarly, government contractor Edward Snowden faces espionage charges for releasing classified documents of the National Security Agency. He remains a wanted man on American soil. However, Snowden has escaped prosecution and is currently living in Russia under the protection of asylum.

Making the Right Decision Requires Qualified Legal Representation

Whistleblower protection laws don’t protect every employee in every situation. The confines of your position and the type of information you share has a big impact on the final outcome. Breaking certain legal agreements, national security protocols and other requirements of your job can land you in hot water. However, performed within the confines of the law, blowing the lid off wrongdoing is a smart and brave way to better the world. It’s essential for potential whistle-blowers to seek legal counsel before they come forward.

Click to find out more about Whistleblower Protection Law by contacting Bothwell Law Group online.

How Whistleblower Laws Can Prevent Bad Stewardship of Taxpayer Dollars

Put whistleblower laws to work for the common man.

whistleblower lawsWhistleblower laws make it easy for people to come forward when they know trouble is afoot. They also encourage people to bust corruption wide open by offering them protection from retaliation — and the chance to receive a small fortune.

How the False Claims Act Encourages People to Do the Right Thing

Telling the truth isn’t always easy, especially when lies seem to have good intentions behind them. Many instances of fraud look like someone has done something to help out the little guy, but the bigger picture shows a different story.

Take Medicaid insurance fraud, for example. Policies in states like Iowa are changing to drastically limit the amount of dental work state insurance will cover in a year. Why?  Because so many dental offices have figured out ways to bilk the system tens of thousands of dollars per patient. They’ve performed unnecessary work, lied about services and even put people in danger to make an extra few dollars. Now, children will suffer without the dental care they need because of greed. These kinds of crimes count!

It takes a brave soul to say something, but if you face the risks you may reap the benefits. Consider the hospital employee who turned the company in for falsifying grant applications. The facility didn’t house nearly many as beds as they’d claimed. The result was a $12.9 million settlement, of which $3.3 million went to the whistleblower.

Filing Suit ‘For the People’

The False Claims Act makes it possible for individuals to sue corporations, groups, and individuals for defrauding the government. Individuals wage these “qui tam” lawsuits on behalf of the nation.

The law sweetens the deal by allowing the filer to take home a portion of the winnings. While this isn’t the only reason whistleblowers come forward, it fuels motivation in many cases.

As the law is currently written, whistleblowers can share in up to 30 percent of a settlement, based on triple the damages involved in a case. See the wrong thing at the right time, and your conscience could make you a lot of money.

Unfortunately, whistleblowing doesn’t come without risk. Laws and industry policies offer various forms of protection, but they do not apply to everyone in every situation. State laws might also limit the reach of federal practices, so it’s important to seek legal counsel before coming forward with damaging information.

Whistleblower policy often protects against the following:

  • Termination and demotion
  • Hostility and threats
  • Severe schedule changes or expectations

Changes to the False Claims Act Through the Years

While perfectly suited to deal with the problems of the modern day, the False Claims Act arose out of the corruption of the Civil War. The greed of the day horrified leaders. Contractors promised to provide troops with quality food, clothing, and supplies only to fail to deliver. These bad business deals, fueled with government funds, sometimes left Union Army troops starving and stranded.

President Abraham Lincoln, initially signed the False Claims Act in 1863, making it clear early on that the United States would not let corruption take hold. It cleaned up the country’s track record … for a while.

Unfortunately, the country forgot those lessons as the years rolled on. During the 1940s, Congress gutted the False Claims Act, removing all incentive for people to report fraud affecting government funds. It wasn’t until the Reagan Administration that people began to take this duty seriously. Today, there are significant protections for those looking to help the little guy.

The False Claims Act is just one way to fight corruption at the government level and secure tax dollars for those with good intentions. However, the country has 22 federal laws giving protection to whistleblowers of various kinds. States have their own standards. Associations and licensing boards offer their own incentives as well.

Using Whistleblower Laws to Your Advantage

Throughout the last 100 years, whistleblowers have uncovered serious risks to government funding and to the people. Karen Silkwood gave her life to the cause when a mysterious auto accident prevented her from testifying against her employer. Critics of his decision to speak out on police corruption shot Frank Serpico. He narrowly survived. Edward Snowden is currently living abroad pending extradition to the U.S. on espionage charges for sharing classified documents with the press.

Protection laws do not offer ultimate protection or keep you safe from all legal repercussions. It’s important to discuss your situation with a legal representative before you speak out.

Contact skilled whistleblower laws attorneys at Bothwell Law Group by calling 770.643.1606 today.

Are Protections for Whistleblowers Enough to Make It Worth It?

Protections for whistleblowers are essential for the False Claims Act to work correctly.

Protections for WhistleblowersWithout adequate protections for whistleblowers, fewer individuals will come forward to report fraud. The act of blowing the whistle is a stressful and challenging decision. Most potential whistleblowers know they might face backlash for bringing the fraud to light. Congress understands these risks. So, there are several provisions in the Claims Act to provide protections for those who serve as whistleblowers.

Confidentiality of the Whistleblower

The best protection for a whistleblower is to stay unknown. This is somewhat easy to do early in the whistleblowing process. An anonymous email or phone call to the right government regulating agency may be enough to stop the fraud and catch those responsible. But in most situations, that’s not enough. The phone call or email may be enough to start an investigation. But it’s probably not enough to result in prosecution of the responsible parties.

To make the most of the whistleblowing, a qui tam lawsuit may be necessary. This is a unique civil lawsuit where a whistleblower (called a relator), sues the responsible party on behalf of the federal government. To begin a qui tam lawsuit, the relator will file the civil complaint “under seal.” That is a legal term for “in secret.” After filing the complaint, the relator will notify only the government about the qui tam action. The government will then investigate the case and determine if it will join the relator in the qui tam action.

During this investigation period, which can last many months, the identity of the whistleblower will remain hidden. That means the whistleblower will be relatively safe. But as the case proceeds through court, the responsible party will likely discover who the whistleblower is.

Rewarding the Whistleblower

One possible way to protect the whistleblower is to provide a financial reward for blowing the whistle. The chance for a potentially sizeable reward can provide financial protection in case the whistleblower loses his or her job or is unable to find continued employment. This reward is only possible if the whistleblower brings a qui tam action. Or, if there is a specific whistleblowing law that allows for the reward.

In most cases, the reward will only be possible in a qui tam action brought under the False Claims Act. This means the whistleblower can expect an award that is equal to 20 to 25 percent of the total amount of money recovered by the government. In some situations, the whistleblower will receive less. For example, when they have relatively little involvement in gathering additional evidence of the fraud or they actually took part in it. But in some cases, they can receive more, such as 30 percent of the total amount of money recovered. This is possible when the whistleblower receives little, if any, help from the government during the qui tam lawsuit.

False Claims Act Anti-Retaliation Provisions

Finally, there are the anti-retaliation provisions in the False Claims Act. These prohibit an employer from retaliating against a whistleblowing employee. The retaliation can take many forms, including firing and employee discipline. If the whistleblower can prove retaliation, they can potentially receive double the amount of actual damages (such as lost wages) plus reinstatement and attorney’s fees.

To prove retaliation, the whistleblower must establish three things: that the employee participated in whistleblowing activities, the employer knew who the whistleblowing employee was and the employer discriminated against the employee because he or she was a whistleblower. This last requirement is often the hardest to prove. An employer who really wants to retaliate against the employee will often make up some other explanation for the firing.

For example, the employer will say they fired the employee because he or she was late to work or had other unrelated disciplinary issues. The employer will also try to hide the fact that it knew who the whistleblower was. Remember, the employer cannot be liable for retaliation if it didn’t know the identity of the whistleblower. It’s impossible for an employer to retaliate against a whistleblower if it didn’t realize the whistleblower engaged in whistleblowing activities. All this means that whistleblowers sometimes have a difficult battle proving that the employer violated the False Claims Act’s anti-retaliation provisions.

Is It Enough?

That’s a loaded question and one that is impossible to answer without more information. Whether protections for whistleblowers are adequate will depend on where the retaliation may come from, if a qui tam reward is possible and the chances that reporting fraud will result in an investigation or court case. To get a better understanding of the risks of whistleblowing, an individual should consult with an attorney who does work on whistleblower cases.

Want to Find Out More about Protections for Whistleblowers Stay Safe?

Contact the skilled protection for whistleblowers attorneys at Bothwell Law Group by clicking or calling 770.643.1606 today.

How to Effectively and Securely Be an Education Fraud Whistleblower

If you’re trying to decide if you want to be an education fraud whistleblower, you will have questions about how to do it right.

education fraud whistleblowerDeciding to become an education fraud whistleblower is a huge decision. By taking the step to report fraudulent activity, an individual exposes himself or herself to retaliation from those who gained from the fraud. Additionally, the process can take a lot of time and require tremendous effort. Calling in an anonymous tip might be easy, but being a whistleblower can involve a lot more than that. Court appearances, answering questions and gathering documents are all things a potential whistleblower might have to do.

This sounds daunting, and it can be. But to be an effective whistleblower while also staying as secure as possible, there are two primary things a person should do.

Keep a Secret

When it comes to staying secure as a whistleblower, secrecy is vital. A principal, school board or dean can’t retaliate if they don’t know who to retaliate against. It’s easy to understand how avoiding confrontation is a lot easier than winning a confrontation.

So why is avoiding retaliation such a big deal? It’s because it can lead to a lot of professional and personal problems. At the bare minimum, retaliation will probably consist of coworkers and supervisors doing everything they can to make a whistleblower’s work life miserable. It might consist of shunning them from teacher’s lounge conversations about the latest episode of a popular television show. Or maybe someone will spit in the whistleblower’s lunch. Those things sound awful, but they are only the minor retaliatory measures that could occur.

More serious retaliation can consist of physical violence, threats, firings, and blacklisting. Losing a job might not be so bad for some whistleblowers. They might not want to continue working for an organization engaging in fraud, especially one that should help children. So getting fired isn’t that big of a deal for those who plan on resigning anyway.

But the worst professional consequence is probably going to involve blacklisting. When this happens, it’s challenging to find a job in the same field or industry. At the very least, the whistleblower should expect to have to move across several counties or states to find another, similar job.

Then there are the threats and potential for physical violence. This is the worst type of retaliation, although it’s usually relatively rare. Considering how bad this retaliation can be, a prospective whistleblower may wonder how to best stay secret. This starts by speaking with an attorney.

Lawyer Up

The best way to stay secure when serving as a whistleblower is to get the advice of someone who has a lot of knowledge about it. One way to find this person is to consult with an attorney that works in the whistleblower legal field. Whistleblowing is a unique area of law, so it’s common to find attorneys that focus much of their time and energy on only whistleblowing legal cases.

A whistleblower attorney can provide advice on how to become a whistleblower as safely and securely as possible. They will give tips on how to report fraud anonymously and what expectations of secrecy a whistleblower can expect. For instance, if a whistleblower reports fraud and an investigation takes place which results in civil or criminal legal proceedings, then a whistleblower’s identity will come out. The only question is when.

Staying secret forever is very hard to do. One way a whistleblower attorney can help is by making the process as effective as possible. It will be easier for a whistleblower to handle retaliation if they know they will get a financial reward (through a qui tam action) or that blowing the whistle will lead to positive changes.

Professional Advice Is a Must

To achieve either one of these goals, a whistleblower will probably need professional legal advice. For example, to bring a qui tam action, the law actually requires the whistleblower to hire an attorney. This is because, in a qui tam action, the whistleblower is bringing a lawsuit against the person or organization committing the fraud on behalf of the government. Therefore, the consequences of the qui tam action fall on the government (at least in theory), not the whistleblower.

Even if the whistleblower doesn’t care about money or bringing a lawsuit, an attorney is helpful because they can make the act of whistleblowing as worthwhile as possible. They can advise the whistleblower on how to safely and legally gather evidence so the people involved in the fraud can face the consequences in court. The last thing a whistleblower wants to do is expose themselves to retaliation by reporting the scam. They may then have the responsible parties find a way to escape liability because the whistleblower improperly obtained evidence. Or worse, the whistleblower wants to avoid accidentally tipping off the guilty parties in a way that allows them to destroy valuable evidence.

Still Want to Be an Education Fraud Whistleblower?

Learn more about becoming an education fraud whistleblower by contacting our team at Bothwell Law Group online now.

How PricewaterhouseCoopers Learned the Importance of Whistleblowing, the Hard Way

Whistleblowing can reveal tons of problems and mistakes, so it’s no wonder so many companies don’t like it.

whistleblowingWhistleblowing is a thankless activity. It involves calling attention to problems within an organization, with many of these problems consisting of illegal behavior. This results in the whistleblower creating many enemies. To make matters worse, it’s usually hard to find someone who will appreciate the whistleblowing.

In many instances, it’s the general public or society as a whole who benefits from the whistleblowing. So while serving as a whistleblower will help others, it’s hard for anyone else to recognize the sacrifice and work a whistleblower must provide. Despite all these challenges, blowing the whistle on improper behavior is still a good thing. A recent example involving PricewaterhouseCoopers demonstrates this.

What PricewaterhouseCoopers Does

PricewaterhouseCoopers (PwC) is a large, well-known company that provides professional services to business and organizations all over the world. It’s most famous for its auditing services, where its accountants and auditors review the financial books and procedures of other companies.

The Problem with Auditing

The auditing profession is a reputable and necessary one. Most companies don’t have the time and money to look over their own financial statements to ensure accuracy and compliance with relevant laws, rules and regulations. But most importantly, companies need an independent set of eyes to look things over. It’s hard for investors and outside officials to trust the financial statements of a company if the company itself prepares and reviews the information. After all, it’s in the company’s best interest to hide the flaws and exaggerate the positives.

That’s where companies like PwC come in. They provide their accounting and auditing expertise so it can assure others that a company’s “books” are truthful and in compliance with specific accounting standards. The problem is that PwC doesn’t always provide an honest and unbiased review of a company’s financial statements.

This is because PwC gets paid by the very company it audits. No company being auditing wants to receive a bad review! The last thing the Chief Financial Officer of a company wants to hear is that its accounting department is “cooking the books” or otherwise engaging in improper bookkeeping. Unfortunately, this happens more often than any company would like to admit.

Not only is this embarrassing, but it can result in large amounts of money to make reparations, or even lead to lost income. Imagine a defense contractor winning a multi-billion dollar contract with the United States government. Then its auditing company (such as PwC) discovers that the bid to win the contract was artificially low due to hiding research and development costs. This is a serious problem because it could jeopardize billions of dollars in revenue.

In a perfect world, the defense contractor would be happy the auditing company found the truth, admit its mistake to the federal government and take its chances. But what sometimes happens is that the defense contractor tries to hide the facts. How does it do this? By pressuring the auditing company.

How Do Clients Put Pressure on PwC?

Like other auditing companies, PwC charges a fee for the services it provides to its clients. But when these services reveal bad news that annoys, angers or upsets the client, there is pressure on PwC to ignore or sugarcoat the unpleasant information. There is this pressure because PwC wants repeat business.

It’s unlikely the client will refuse to pay for the audit that uncovers terrible information. But when the client needs another review, they’re probably going to want to find an auditing company that is willing to either look the other way or gloss over any problems it sees. The auditing industry is extremely competitive with a lot of money at stake. So it’s easy to understand why a company like PwC would want to provide dishonest audits. And thanks to a whistleblower, we now know that this actually happened.

The PwC Whistleblower

Mauro Botta (Mr. Botta) was an employee at PwC for many years. During his time there, he alleges that he found evidence PwC provided misleading bookkeeping and auditing services to its clients. At first, he was honest and brought attention to the problems with PwC’s clients. Mr. Botta claims that PwC responded in at least one instance by taking him off the project at the client’s request. Mr. Botta then went to the Securities and Exchange Commission (SEC) to blow the whistle on what happened to him and what went on at PwC. Soon after, PwC fired Mr. Botta and blacklisted him. Other accounting and auditing companies did the same.

PwC’s Lesson

In May 2018, Mr. Botta began a lawsuit against PwC. He alleges retaliation for blowing the whistle on the “fraudulent” and “deceptive” behavior at PwC. Mr. Botta relies on various state and federal laws, including the California Whistleblower Protection Act and Sarbanes-Oxley. Assuming Mr. Botta’s allegations are true, PwC is learning that it should not only do the right thing when auditing clients, but not retaliate against a whistleblower.

Are You a Whistleblower or Fear Retaliation for Whistleblowing?

Contact the skilled whistleblowing attorneys at Bothwell Law Group by clicking or calling 770.643.1606 today.

Can I Trust in the Whistleblower Protection Policy If I’m Going to Report Medicare Kickbacks?

A good whistleblower protection policy helps make it possible to discover fraud.

whistleblower protection policyWithout a good whistleblower protection policy, it’s a lot harder for the federal government to find people willing to help discover and prosecute fraud. Yes, there are financial incentives to encourage people to step forward and stop the fraud. However, these monetary rewards aren’t always enough.

What’s Stopping a Potential Whistleblower?

It’s not easy to be a whistleblower under the False Claims Act. Theoretically, an individual can serve as a whistleblower by sending an anonymous email. Or they can make a telephone call that brings the fraud to the attention of the federal government. But to prosecute the people responsible, the whistleblower almost always has to provide more information, including their identity.

A whistleblower revealing who they are can pose a serious problem. That’s because it can subject them to revenge or retaliation by anyone who might commit fraud against the federal government. One way to persuade potential whistleblowers to step forward is to provide them with a financial reward. But sometimes that’s not enough.

Why Isn’t a Monetary Reward Enough for Whistleblowers?

Even when a whistleblower (the technical term is a “relator” in a qui tam legal action) cooperates to the best of his or her ability, that doesn’t guarantee a sizable financial reward. The federal government might believe that the whistleblower didn’t do everything he or she could. Or maybe the whistleblower gets a financial reward, but it is much less than expected.

For example, let’s say a court believes the relator took part in the fraud. They might lower the financial reward to only 10 percent of the amount recovered. This is much lower than the 30 percent that is sometimes possible.

Another way the relator gets less money is if the federal government isn’t able to recover as much money as planned. Perhaps the fraudster stole $100 million. But for whatever reason, the relator could only convince the court that the fraudster took $10 million. Even if the relator receives the highest percentage reward possible of about 30 percent, $3 million is a lot less than $30 million.

Therefore, to further convince potential whistleblowers to step forward, there are special protections set in place by the False Claims Act.

False Claims Act Protection #1: Secrecy

The easiest way to avoid revenge from coworkers or bosses is to keep them from ever knowing who the whistleblower is. When first blowing the whistle, the whistleblower can usually keep their identity a secret. They can report the fraud anonymously. Eventually, they have to reveal who they are to the federal government. However, the government is usually pretty good about keeping the whistleblower’s identity a secret.

Things get a bit riskier if the whistleblower decides they want a financial reward.

This requires them to begin a qui tam action and serve as a relator. During the initial stages of litigation, the whistleblower is safe. This is because the complaint in a qui tam is “under seal.” That’s just a fancy legal term for keeping it secret. It also means the fraudster does not find out about the qui tam action until later on in the case. If the fraudster doesn’t know someone tipped off the federal government, it’s hard for them to retaliate.

The purpose of this secrecy is to allow the government time to investigate the alleged fraud.

The secrecy period lasts for at least 60 days. But it will often last longer because the federal government needs more time to investigate the scam. And it’s pretty easy for the government to ask and obtain an extension.

But eventually, the investigation ends and the court removes the “under seal” case status. The fraudster is now likely to discover who the whistleblower is. They might retaliate against them. But sometimes, the fraudster can figure out ahead of time who the whistleblower is. Luckily, there are special anti-retaliation protections in place.

False Claims Act Protection #2: Prohibition on Retaliation

It is illegal for an employer to harass, bully, fire, threaten or otherwise retaliate against a whistleblower. If the employer retaliates, then they may have to reinstate the whistleblower and pay damages. They include back pay, attorney’s fees and interest.

This sounds great, and it is, in theory. But the reality is not as great because it’s not always easy to prove retaliation. A clever employer can disguise a retaliatory firing. They can make up performance-related reason that has nothing to do with whistleblowing.

Another problem is that even if the employee wins his or her retaliation case, do they really want to go back to the same job? The monetary damages they receive are usually not enough to make it worth the hassle or aggravation of retaliation.

Despite its drawbacks, the anti-retaliation provisions of the False Claims Act are better than nothing. They can alleviate some of the pain of being a whistleblower or prevent retaliation from taking place.

Are You Thinking About Being a Whistleblower?

Contact our skilled whistleblower protection policy attorneys at Bothwell Law Group by calling 770.643.1606 today.

What Can I Expect to See from Healthcare Whistleblower Claims?

Whistleblower claims in the healthcare setting are unique. Here’s what you need to know.

whistleblower claimsGiven the size and importance of the healthcare industry, it’s no wonder that it has its fair share of whistleblower claims. Medical services cost a lot of money and many people need them. In fact, it’s almost a certainty that you and everyone you know will utilize healthcare services at some point in your lifetime. With so many people needing in healthcare and the massive amount of money involved, it’s inevitable that fraud will take place.

Here is a list of some of the things you can expect to see in healthcare fraud claims:

Lots of Money at Issue

Healthcare makes up a huge part of the United States economy. In fact, the Centers for Disease Control and Prevention estimates that healthcare amounts to $3 trillion of the United States economy. A lot of money changes hands with all the government programs, insurance companies, medical providers and healthcare companies involved. All of this means that a healthcare whistleblower should expect to see a lot of money at stake. This is good in that it can mean a larger qui tam reward. But it’s bad in that it means guilty parties will spend more time and effort fighting allegations of fraud.

Kickbacks

A kickback is a special payment one party makes to another as compensation for an improper benefit. One reason for kickbacks in the American healthcare industry is how insurance companies work. For many patients, they cannot receive specific medical care unless they first get a referral from another medical professional. For instance, if you want to see a neurologist, you may have to first see your primary care physician, who will then provide you a referral to see the neurologist.

In a perfect world, your primary care physician will refer you to a neurologist who will do the best job possible in treating the medical issue involving your brain. But with kickbacks, a sleazy neurologist may provide payments to primary care physicians to send patients their way even though the patients should be going to someone else. The payments the neurologist provides the primary care physician would be a kickback.

Upcoding

In the medical world, special codes exist to refer to specific procedures, tests and services. So instead of the bill spelling out the exact procedure, a special code takes its place. This can streamline billing. But it can also provide an opportunity for fraud. Fraud can occur when someone in the medical billing department uses a code for a more expensive medical procedure or service. Upcoding is simply a way for a healthcare provider to charge a higher price for a given service.

Unbundling

Like many other things you purchase, medical services can come cheaper if you buy them as a part of a package deal. So a hospital might charge $200 for an X-ray and $600 to set a broken bone. Billed separately, the total is $800. But by bundling these procedures that often occur together, the hospital might only charge $700. Unbundling occurs when the hospital separates the two services and charges the hypothetical $800 instead of the $700.

Fake Patients

Some doctors, hospitals and clinics get really bold in their fraud attempts. Sometimes they will simply make up a patient and bill the government or insurance company for medical care that did not take place because the patient didn’t exist. A slight variation of this fraud technique is to have a real patient, but bill the insurance company or government for nonexistent medical care. For example, a patient might have gone to the emergency room for a really bad headache and received only an MRI. But the hospital not only bills the insurance company for an MRI but a CT scan as well.

Unnecessary Medical Procedures

Unnecessary medical procedures are widespread in healthcare fraud because they are hard to prove, let alone detect. An unnecessary medical procedure is exactly what it sounds like. But discovering it is difficult because it’s hard to know if something is unnecessary. Using the previous example, a patient complaining of a headache may have a migraine where one dose of a certain medication will make everything just fine. Despite knowing this, the doctor orders an MRI scan, “just to be safe.”

In this hypothetical, it’s hard to know if the MRI scan was unnecessary. Even if someone reviewing the medical records believes something is unnecessary, it may be impossible to prove. The only way to prove it will be for the doctor who requested the MRI to admit they ordered a medically unnecessary test. And the chances a doctor will admit to something like that is practically zero.

Want to Discover More about Fraud in the Healthcare Industry?

As you can see, there are a lot of things you could potentially encounter as a healthcare whistleblower. Click to find out more about whistleblower claims by contacting our team at Bothwell Law Group online.

How the Department of Justice Determines the Validity of Whistleblower Cases

Determining if whistleblower cases have merit is an important job of the Department of Justice.

whistleblower casesIn all whistleblower cases (also known as qui tam actions), the Department of Justice has a decision to make. Even though a private citizen brings the qui tam action and not the United States government, the DOJ will have the option of joining the case and pursuing a financial recovery from the alleged defrauder. In many situations, the DOJ joins, but sometimes it doesn’t. When it doesn’t, the private citizen (called a relator), can usually continue to pursue the qui tam action independently.

The Department of Justice may take steps to dismiss the relator’s case and stop the qui tam action from continuing. But what exactly makes the Department of Justice conclude that a qui tam action isn’t valid? And what would make the DOJ believe the qui tam action should end as soon as possible?

Legal Arguments or Facts Are Frivolous

What if the Department of Justice concludes the legal or factual basis for the qui tam lawsuit is frivolous? Then they will conclude it is a meritless case. At the very least, the DOJ will decline to intervene. In some instances, they may actually try to end the qui tam action. For example, imagine if a relator believed that former President Obama wasn’t legally the President of the United States and therefore, all his actions were violations of the False Claims Act. In this situation, the DOJ would not join the relator’s case and would likely try to dismiss it.

The Qui Tam Action Overlaps with Another Investigation

Federal law is clear in that a relator may not bring a qui tam action regarding a particular fraud if there is already a qui tam action pending concerning that specific fraud. But what happens if a qui tam action concern facts and fraudulent activity that the Department of Justice or United States government is only investigating? In this situation, the DOJ will question the usefulness of the qui tam action and will probably either decline to intervene or try to dismiss the case.

The Whistleblower Case Jeopardizes National Security

The False Claims Act commonly involves defense contractors that produce products and provide services for the United States military. If a qui tam action threatens the military’s ability to continue obtaining a certain weapon or technology, the Department of Justice may choose not to help the relator.

The Relator’s Case Complicates the Department of Justice’s Goals

If a qui tam action has the potential to complicate the Department of Justice’s legal mission, it may view the relator’s case as lacking merit. For example, if the relator’s case has the potential to create case law that makes it harder for the DOJ to win another case, then the Department of Justice may try to dismiss the relator’s qui tam case or at the very least, not join it. This sounds contradictory, but a bit of background can help clear things up.

In the United States, the “law” is more than just statutes written in a book. It also includes court decisions (commonly referred to as case law). It interprets that law and provides further details as to what the law means. A federal statute might say “employment discrimination on the basis of race is illegal.” Does that prohibit racial discrimination of a job applicant who is not yet an employee? When a court case answers that question, it creates case law.

When it comes to racial discrimination, federal law exists not just in the statute, but that particular court decision. Therefore, understanding the law involves not just reading statutes, but court decisions as well.

Should a court come down with a decision that explains the law in a way that the Department of Justice doesn’t like, it will do what it can to prevent that from happening. If a relator brings a qui tam case that creates case law that goes against the DOJ’s mission, then it may take the position that the relator’s case lacks merit.

The False Claims Act Lawsuit Involves Classified Information

If the qui tam action involves the disclosure of classified information, the Department of Justice will probably try to prevent the exposure. In this situation, the Department of Justice may decline to intervene. Or they may take steps to make the relator lose his or her case.

Not Sure If You Have a Valid Qui Tam Case?

Contact our team of skilled whistleblower case attorneys at Bothwell Law Group by calling 770.643.1606 today.

Is There Protection for Whistleblowers in Public Education Cases?

Protection for whistleblowers in public education cases is necessary to identify fraud in a variety of contexts, including public education.

Protection for Whistleblowers in Public Education CasesThe public education system is big and powerful, so if someone wants to identify fraud, special protection for whistleblowers in public education cases are necessary. Without these protections, a potential whistleblower may stay silent, even with the chance of getting a financial reward. What is the potential reward and what kind of protections are possible for whistleblowers?

The False Claims Act

The False Claims Act is a federal law that fights fraud against the federal government by primarily implementing monetary fines on individuals and organizations that commit fraud. This law is an old one, originating around the time of the American Civil War. Despite the government’s eagerness to catch those who defraud it, successfully finding and prosecuting the fraudsters is very difficult. Therefore, most cases brought under the False Claims Act rely on inside help.

Fraud Isn’t Always Obvious

Fraud is hard to detect. The government relies on whistleblowers to provide information needed to recover money improperly taken through fraud. However, acting as a whistleblower takes a lot of work and is very risky. This is because the whistleblower likely faces retaliation for “tattling” on the company or individual committing fraud.

One way to encourage whistleblowers to come forward is to provide a reward. Specifically, the False Claims Act has a qui tam provision. It says a whistleblower can bring a lawsuit on behalf of the United States government against the party committing the fraud. The whistleblower can receive a financial reward based on the amount recovered by the government. Depending on the facts of the case, the whistleblower (technically referred to as a “relator”) can receive between 15 and 30 percent of the amount of money recovered. Despite this potential financial reward, an individual still needs other reassurances before stepping forward. The False Claims Act has two primary methods of protecting the whistleblower from retaliation.

Protection Method #1: Secrecy

The best way to protect a whistleblower is to prevent his or her identity from becoming public knowledge. When a whistleblower brings a qui tam lawsuit, the lawsuit is “under seal.” Unlike most lawsuits filed in court, which are available for public viewing, a lawsuit under seal is secret. This secrecy is necessary to protect the identity of the whistleblower. It gives the government time to investigate the alleged fraud and decide if they will join the whistleblower in the lawsuit against the alleged defrauder. Without this secrecy, the whistleblower is at increased risk of retaliation. But also, the alleged defrauder would have time to potentially cover up its alleged wrongdoing or escape with stolen money to a country outside the jurisdiction of the United States.

Getting Outed

Unfortunately, this secrecy ends. Officially, it only lasts for 60 days, but an extension to lengthen this secrecy period is possible. Getting the extension is very common. But even with an extension, the whistleblower’s identity will eventually become known because a public trial will have to take place. Besides that, many defrauders on trial under the False Claims Act will eventually connect the dots and figure out who the whistleblower is.

But even if none of that happens, the whistleblower will often lose their secrecy protection when they collect their reward. At that point, the whistleblower might not mind too much. But they could have worries beyond retaliation, such as the safety of themselves or their family.

Protection Method #2: Retaliation Prohibited

If the whistleblower is an employee, once the employer figures out who the whistleblower is, retaliation is likely. The whistleblower faces the potential for firing, demotion, harassment, and bullying. The False Claims Act prohibits all of these and other related retaliatory activities against the whistleblower.

If the whistleblower can prove that they are the victim of retaliation, they can potentially get their job back. Plus, they can get twice the back pay, special damages, attorney’s fees and interest. Unfortunately, even if the employee wins a whistleblower retaliation case, these damages are often insufficient. The whistleblower will probably become blacklisted in their chosen field. For example, a teacher who blows the whistle on a principal or school district will have trouble finding another job as a teacher, especially in the same school district. Even though the whistleblower acts honorably, many people don’t want to hire someone who has a reputation as a snitch. That teacher will have to find another career or move to another geographical location. Otherwise, they will continue work in a school where almost everyone is giving them dirty looks or otherwise trying to make life as miserable as possible. 

Thinking about Becoming a Whistleblower?

It’s not fair, but it is a reality the whistleblower must prepare to face. Click to find out more about protection for whistleblowers by contacting our qualified legal team at Bothwell Law Group online.

The Truth About Protection of Whistleblowers in Hospice Kickback Cases

The protection of whistleblowers is very important in False Claims Act legal actions.

protection of whistleblowersWhen fraud against the federal government occurs, the protection of whistleblowers becomes critical. This is because about 80% of False Claims Act fraud cases originate from a whistleblower. Why so many? Much of the fraud is well hidden and therefore unknown to the federal government. However, someone on the “inside” usually knows about it. In situations where the federal government is aware of fraud, it may not have the evidence to prove it. Again, those on the “inside” can usually find the evidence.

Whistleblowers are important to a federal government’s False Claims Act action against the violator. Therefore, it’s easy to see how the whistleblower could be the victim of retaliation, especially in cases involving kickbacks and hospice care providers. Luckily, there are special protections. Yet, they don’t always work as well as a whistleblower might hope.

Whistleblower Protections: Qui Tam Actions Begin in Secret

The False Claims Act contains various provisions that provide protections for a whistleblower. The first line of defense is the secrecy of a qui tam action when it begins.

A qui tam action is a lawsuit brought by the whistleblower (also called a relator) where the whistleblower sues the violator (often the whistleblower’s employer) on behalf of the federal government. Any of the stolen money the whistleblower can recover goes to the federal government, less a certain percentage as a reward to the whistleblower. This percentage ranges between 10 and 30 percent.

When a qui tam action begins, the whistleblower must file the complaint “under seal.” This means the whistleblower files the complaint in secret. Only the federal government and the court know about the lawsuit. One reason for this secrecy is to protect the identity of the whistleblower while the government investigates the basis of the qui tam action and assesses whether it will take over the case.

Secrecy Has Limits

This secrecy doesn’t last forever. It only lasts for 60 days, although an extension is possible if the government wants additional time to investigate the fraud. Even then, once the case proceeds to trial, things change. It’s very likely the defendant in the qui tam action will be able to figure out who the whistleblower is because the whistleblower will likely be a key federal government witness in the case.

But in many cases, the defendant discovers the whistleblower’s identity before the qui tam action ever gets to trial. Once the federal government begins investigating the alleged fraud, the defendant will know something is up. They’ll realize the investigation probably began with the help of an inside person. Perhaps the whistleblower previously warned the defendant about the fraud. Or maybe they’re the only person with access to information that the federal government now knows. The defendant can often put two and two together. When this occurs, the whistleblower can assume he or she will endure some form of retaliation. Luckily, the False Claims Act has anti-retaliation provisions that make this retaliation illegal.

Whistleblower Protections: Anti-Retaliation Provisions

The False Claims Acts makes it unlawful for an employer to retaliate against a whistleblower. This retaliation can take the form of discrimination, harassment, threats, demotion, firing and pay cuts.

If a whistleblower can prove retaliation, they can get their job back plus double back pay, special damages, interest and attorney’s fees. On paper this is great. But the reality doesn’t work as well, and there are several reasons for this.

First, it’s not always easy to prove retaliation.

An employer might fire the whistleblower. If the whistleblower has a history of poor performance, the employer can make the plausible argument that the firing has nothing to do with retaliation. This may not be true. But it creates enough doubt as to the reason of the whistleblower’s firing to prevent a court from concluding the employer is guilty of unlawful retaliation.

Second, let’s say the whistleblower can prove illegal retaliation.

The potential relief often isn’t worth the consequences. For example, is a whistleblower who suffers retaliation really going to want to still work at the same employer that just tried to fire him or her? What if the whistleblower wants to continue working for the employer. Can the whistleblower expect fair treatment, as if nothing happened? The answer to both these questions is usually “no.”

But working somewhere else is not always possible because now the whistleblower has a reputation for being “untrustworthy.” Even though the whistleblower did the right thing, they may face challenges. Few companies want to hire someone they know has a reputation for going behind the employer’s back and reporting something to the federal government.

The harsh reality is that the False Claims Act’s anti-retaliation provision helps. It can reduce the pain or harm a whistleblower endures. But it rarely provides for the perfect protection of whistleblowers, especially in the hospice care industry.

Thinking about Becoming a Whistleblower?

Contact the Bothwell Law Group by calling 770.643.1606 today. Let our firm’s skilled attorneys explain the protection of whistleblowers so you can make a wise choice.

What Are Whistleblower Laws and How Can They Affect Ordinary Citizens?

Have you ever wondered, what are whistleblower laws?

What Are Whistleblower LawsMany individuals ask the question: What are whistleblower laws? Many might think it’s a law that deals with whistleblowers and they would be correct. There’s one thing about the law that many people do not know. It has to do with the reward system, which can make a huge difference for many ordinary people.

Background of the Whistleblower Law

The False Claims Act, also referred to as the whistleblower law or qui tam law, is a federal law to fight attempts to defraud the federal government. It was created during Civil War times. The False Claims Act originally went after dishonest businesses that tried to cheat the government when it sold wartime goods and supplies to the Union Army.

Today, the False Claims Act still targets businesses that sell goods to the United States military. But it also goes after fraudsters in many other industries, such as healthcare and construction.

With respect to ordinary citizens, the False Claims Act is special because of its qui tam, or whistleblower provision.

What Is the Qui Tam Provision?

The qui tam portion of the False Claims Act provides a reward to individuals who serve as whistleblowers for the federal government. This reward ranges from as little as 10% to as high as 30% of the money the government can recover from the violator.

But why is the federal government willing to give up almost a third of the money that it rightfully deserves? Because it’s very hard for the government to detect fraud and get enough evidence to prosecute it.

Estimates say that more than three-quarters of all lawsuits under the False Claims Act are the result of a whistleblower. This goes to show how important whistleblowers are. They help the federal government detect, stop and prosecute fraud. Therefore, the reasoning for giving the reward is that it’s better to get 70 cents on the dollar than zero cents on the dollar. The federal government understands that the best way to go after a fraudster is to find someone to help who has special access to the fraudulent activity.

The qui tam provision also means that sometimes those involved in the fraud end up being the whistleblower. It might seem unfair that one of the guilty people should get a reward for their crimes. But unfortunately, those involved in the fraud often serve as the best whistleblowers. That’s because they are extremely familiar with the fraud and can provide the best evidence. Also, the amount of the reward can be lower for those who committed fraud themselves or otherwise participated in it. This is often the reason why a qui tam reward will “only” be 10%, instead of the more usual 20% or 25%.

How the Qui Tam Provision Affects Regular People

The whistleblower provision under the False Claims Act most notably affects the ordinary citizen in two ways. One is positive and one is negative.

First, there is the reward. In large False Claims Act cases, there can be tens of millions of dollars at stake. So when everything is over, the whistleblower (also called a relator) can receive a seven figure reward. But this large reward requires a lot of work and time. It involves helping the federal government investigate the fraud and actually recover the stolen money. With a few million dollars, it’s easy to understand how the whistleblower’s life can change. Doing the right thing and bringing criminals to justice is a strong motivator. But it’s understandable that simply doing the “right thing” is not enough to persuade someone to risk his or her job and professional future to report fraudulent activity.

Second, there are serious negative consequences for blowing the whistle. There’s no way around the fact that in most situations, the whistleblower is at risk of professional harm. As a result of reporting the fraud and assisting the federal government by providing evidence of the fraud and information on how to recover the stolen money, a whistleblower can expect retaliation.

This retaliation is illegal under the False Claims Act, but it doesn’t mean it never happens. It can also be hard to successfully make a retaliation claim against an employer that takes subtle revenge against an employee. For example, it’s difficult to prove that a former employer blackballed the whistleblowing employee, resulting in the whistleblower having to change careers.

However, despite the difficulty in prosecuting retaliation, the penalties may prevent an employer from retaliating against the whistleblower. It may also minimize the retaliatory conduct the whistleblower must face.

Need More Information?

If you’re wondering about what is the whistleblower law, contact the skilled attorneys at Bothwell Law Group by calling 770.643.1606 today.

Common Responses to Defense Contract Fraud Whistleblower Cases

whistleblower cases

whistleblower casesIn recent years, there has been an increase in whistleblower cases filed by the Department of Defense. This is in part a result of a heavier reliance on private security companies and contractors. The result has been an increase of defense contract fraud. When a contractor or company employed by the department of defense is engaging in illegal, fraudulent, or dangerous activities, their actions qualify as defense contract fraud.

Examples of Defense Contract Fraud

One example of such behavior could include billing the Department of Defense for services never performed. Furthermore, mismanaging government funds, or abusing their power as a government contractor also qualify. All of these actions, along with any illegal or unsafe activities, deserve punishment. However, the inspector general of the Department of Defense cannot have eyes everywhere. Because of this, they rely heavily on military members, government employees, and defense intelligence employees to report any evidence of misconduct by defense contractors.

Corrupt contractors may succeed in making a profit off of their illegal activities. However, the government prosecutes defense contract fraud harshly. Whistleblower cases can have various results, in some cases they end in a settlement while in others, a judge passes judgement.

Common Results of Defense Contract Fraud Whistleblower Cases

Below are some results of whistleblower cases associated with defense contract fraud:

  • The defendant responsible for illegal use of government funds will plead guilty before the case goes to court. In a guilty plea, there is agreement on a settlement. These settlements are usually large. They represent of the amount of money the government lost as a result of their illegal activity. Whistleblowers involved in these cases are eligible for fifteen to 25 percent of recovered funds.
  • The defendant will maintain their innocence and a lawsuit against them goes to court. If there is a guilty verdict, the defendant could pay damages well above the amount of money they stole. Any whistleblowers involved in the case are eligible for fifteen to 25 percent of the recovered funds.
  • The defendant will maintain their innocence and a lawsuit against them goes to court. If there is an innocent verdict, they will not have to pay any damages to the United States government. If a whistleblower was involved in the case, they will not be offered any type of reward for their actions.

Any whistleblower case resulting in repayment of illegally obtained government funds is a success. However, in order to succeed, whistleblowers need adequate evidence of fraud and a talented defense contract fraud lawyer. When you hire the right lawyer, they can help you gather evidence. This will increase your chances of winning your lawsuit.

Find out what you need to know about whistleblower cases by calling 770.643.1606 to connect with our team at Bothwell Law Group.