Under the Federal False Claims Act (FCA), the presentation of a false claim for payment to the federal government can result in significant liability for
providers participating in government-payer
programs such as Medicare or Medicaid.
Liability for false claims submitted to a state’s
Medicaid program can also result in
false claims liability pursuant to state
or federal law.
Liability typically arises one of
two ways: (1) the government itself
brings an FCA action against the
provider; or ( 2) a private individual(s)
brings an FCA action (known as a qui
tam or whistleblower claim) against a
provider on behalf of the government.1 In the
event that the government pursues an FCA
qui tam action brought by a whistleblower, the
individual claimant gets to share between 15%
and 25% of the government’s recovery. 2 Given
the financial incentives to share in the govern-
ment’s recovery, it should come as no surprise
that the number of FCA qui tam actions being
brought against healthcare providers is on
the rise. 3, 4
Ironically, many of these FCA actions are
brought by individuals who are either wholly
or partially responsible for the alleged FCA
liability or conversely, wholly or partially
responsible for addressing the perceived
FCA issue. Unfortunately, their involvement
or responsibility for the issue does not preclude them from participating in the recovery.
Although there is no particular set of facts that
is more likely than others to result in a FCA
qui tam action, the decision to bring an action
on behalf of the government, rather than to
try to address or resolve the matter internally,
may be motivated by a number of factors, such
as: (1) personal gain if the FCA qui tam action
is successful; ( 2) internal conflict between the
claimant and management; ( 3) the claimant’s
frustration and/or anger because the perceived
problem is not taken seriously or responded to
in a timely manner by the provider; and/or ( 4)
the claimant hopes to be shielded from losing
their job, vis-à-vis the non-retaliation laws
intended to protect whistleblowers.
Regardless of why the action is brought
or whether the FCA qui tam action has any
by Joan W. Feldman, Esq.
Reducing the risk of False
Claims Act qui tam actions
» All alleged false claim complaints should be taken seriously.
» Respond to the complaint in a timely manner.
» Develop a plan and timeline for the investigation.
» Keep complainant(s) informed and report results of the investigation to them.
» Keep clear documentation as to the analysis and process followed.
Joan W. Feldman ( firstname.lastname@example.org) is a Partner with the law firm of
Shipman & Goodwin LLP in Hartford, CT.