False Claims Act, 31 U.S.C. §§ 3729-3733 Liability under the False Claims Act, also referred to as the “Whistleblower” or Qui tam statute, occurs where a health care provider
(1) knowingly presents (or causes to be presented) a false or fraudulent claim for payment
(2) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim
(3) conspires with others to commit a violation of the False Claims Act or
(4) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the Federal Government. Violations of the Anti-Kickback Statute can also constitute a “false claim” under the Act.
The penalties under the False Claims Act include treble damages, plus an additional penalty of $5,500 to $11,000 per claim.
False Claims Act cases involving health care fraud are initially referred to the Civil Division of the United States Attorney’s Office. Depending on various factors, including the nature and amount of the alleged fraud, the Civil Division can take over the handling of the case on behalf of the “relator:” the person(s) who filed the case in the first instance.
More ominously for the small health care practitioner or provider sued under the False Claims Act is that the Civil Division will forward the matter to the OIG and Criminal Division of the U.S. Attorney’s Office for investigation and evaluation of whether the criminal health care fraud laws have been violated.
In other words, what started out as a lawsuit under a civil statute can turn into a criminal prosecution!
Competent and experienced legal representation is crucial in preventing a False Claims Act civil matter from evolving into a criminal prosecution.
If the United States Attorney elects not to adopt the case, the relator, or person who filed it, can still pursue the claim in court. Relators have a financial incentive to pursue a claim under the False Claims Act because they can receive up to 30% of the award.
If counsel is successful in convincing the Criminal Division prosecutor not to file criminal charges, his/her next step is to convince the Civil Division attorney not to pursue the False Claims Act claim or negotiate a resolution of the claim to the satisfaction of the client.
Mark Greenberg is experienced in negotiating favorable resolution of False Claims Act matters on behalf of his clients.