There is no guarantee that any qui tam case will be successful. But even
in a successful case, results can be a very long time in coming. It is not
unusual for a settlement to be reached only after years of investigating on
the part of the government.
Although each case will be different, the outline below shows the steps
that a typical health care qui tam case will go through from the time the
whistleblower discovers the fraud up until the government decides whether to
intervene. If the case is not settled at that time, then several additional
years of litigation and appeals can be expected.
Qui Tam Procedure Outline for a Health Care Case
Relator finds out about ongoing fraud.
- Relator assesses the magnitude of fraud.
- Gather as much documentary evidence as possible
- Do not steal documents
- Create records of how documents were obtained if risk that
confidentiality/theft of documents will be an issue
- Create a journal documenting meetings, relevant statements, etc.
Consider raising concerns with employer in order to come under
the False Claims Act whistleblower protection, Section 3730(h) and/or other
applicable whistleblower protection provisions. Discuss with lawyer.
Consider raising concerns with employer in order to ensure that
relator’s perception of fraud is correct (there may be a valid
explanation/rationale for the suspect procedures.) Discuss with lawyer.
Relator should not discuss the matter in public or disseminate
information about the matter in order to avoid public disclosure issues
and/or a preemptive qui tam action by a co-worker or others.
- Contact a lawyer:
- Lawyer should instruct client on applicable law so that client will be
sensitive to events when they occur.
- Lawyer should direct client on additional steps necessary for a
- Lawyer should instruct client on likely consequences to reputation,
ability to obtain employment, likelihood of success, possibility of
lawsuits against client for defamation, tortious interference, etc.
- Before taking case, lawyer should assess:
- Degree of knowledge by potential relator.
- Amount and nature of relator’s documentary evidence.
- Relator’s determination and ability to stomach case/see it to
completion, as evidenced by:
- Amount of documentary evidence
- Nature and frequency of complaints by relator to employer
- Trustworthiness and reliability of relator
- Relator’s motives
- Likely weight that government will assign to relator’s story
- Relator’s position in the corporate hierarchy
- False Claims Act law.
- Intermediary letters
- Advisory opinions
- Clarity of rules
- Case law
- Any other materials
- Extent of fraud: national corporation vs. local entity.
- Existence of a national or regional initiative; similar pending cases
- Check with TAF/TAFNET
- Call HCFA
- Review periodicals/journals
- Surf the net
- Other counsel
- Position of local U.S. attorney’s office regarding case
- Telephone conference
- Personal interviews/meetings
- Lawyer prepares complaint
- Determine federal causes of action available.
- False Claims Act
- Stark legislation
- Omnibus Protection Act (nursing homes)
- Anti-kickback statutes
- Determine existence of analogous state law
- Lawyer prepares disclosure statement, usually containing
- Confidentiality/Privilege statement/issues
- Legal background/specific laws violated
- Factual background
- Include percentage of Medicare/Medicaid revenues
- Emphasize liability of corporate entities vs. individual defendants
Notify government to protect "original source" exemption.
- Determine local federal district court’s seal procedures and file
complaint under seal:
- Educate clerk of court about secrecy of action.
- Go to judge’s chambers and obtain seal order
- Judge will place all documents to be filed in a sealed envelope, which
lawyer is to file with the clerk. Reemphasize again secrecy requirement.
Ask clerk to deposit envelope in vault in your presence.
- Lawyer must have originals or copies of everything before envelope
- Disclosure statement does NOT get filed in court.
Lawyer or law firm employee delivers disclosure statement to local
U.S. attorney’s office together with copies of documents filed with the
After case number and judge assigned to case, serve copies of
disclosure statement on DOJ, as well as copies of documents filed with
Provide copies of everything to relator with letter outlining
what will likely happen in the future.
- During sixty day initial seal period:
- Government communication unlikely during first sixty days
- At end of sixty-days, Government will likely ask for six-month
extension of seal.
- At end of sixty-days, Government will likely ask for meeting with
relator and relator’s counsel.
- Government likely review of case during seal:
- DOJ reviews
- DOJ will take lead only if national matters.
- DOJ will submit the case to the Department of Health and Human
Services ("HHS"), Office of the Inspector General
("OIG") for its review.
- OIG will assign review of the case to a unit in charge of area in
- Other government actors involved in review are local United States
Attorney’s office, FBI, and HHS.
- Government’s decision to intervene or to decline intervention made
at end of six-month extended period, unless seal renewed once again.
- If Government ultimately declines to intervene:
- Investigate through FOIA whether government is pursing matter through
alternative administrative avenues.
- Monitor alternative procedures
- Claim reward if there is administrative recovery, pursuant to False
Claims Act, Section 3729(c)(5).
- Relator and lawyer need to discuss future of case.
- Private Prosecution
- Drop case