If you're worried that a whistleblower is planning to bring a case against your practice, you may be able to pre-empt him by acting first -- but it's not a sure thing, says an expert.
This week, Part B News looks at options to consider when you think a U.S. Attorney is builidng a case against you, and the pros and cons of going to them before they go to you. One benefit of coming forward, says Chris Brewer, an attorney with Poyner Spruill LLP in Raleigh, N.C., if a whistleblower takes the same issue to the U.S. Attorney, "they’re not the first to disclose — you are — so they may be barred from proceeding with a qui tam case and get the money.”
Note, though, that Brewer says "may." In a follow-up conversation, he explains:
"The public disclosure bar and original source exception are among the most complex and often litigated or disputed legal issues in FCA [False Claims Act]/qui tam cases," says Brewer. "Some courts have held that the provider going to the government and disclosing wrongful billing conduct was a public disclosure, even if the government did not put the alleged information in the public arena in some way, like a complaint or hearing, etc." But other courts have said that "more of a public disclosure is required" for the provider's admission to pre-empt the whistleblower.
Other tacks the U.S. Attorney might take to dispute your pre-emption:
- They may argue that their information was different, broader or more specific than the earlier provider disclosure.
- They may argue that the earlier disclosure was about Medicaid claims and not Medicare, for example.
What's the best course? If you think you're right, make your best case and hold fast -- it may come down to a cotest of wills. "Just the additional hurdle and fight may discourage some [qui tam] relators or their attorneys from attempting the case," says Brewer.