So You Want to Blow the Whistle (Part 2): I Believe My Employer Is Committing Fraud. What Should I Do?
This is the second entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.
Part 2: I Believe My Employer Is Committing Fraud. What Should I Do?
If you believe your employer is committing fraud, your first question will probably be: What should I do now? There is no one right answer to that question, but there are steps you can and should take in order to protect yourself and advance your interests as you decide how to proceed.
First, and most importantly, reach out to an experienced attorney sooner rather than later. That attorney can advise you on your rights and on the best ways to bring your information to the government, and will also advise you on important practical issues such as whether and to what extent you can copy and remove records from your employer’s office. Just as important, that attorney can give you objective, confidential advice about whether your claim is really worth pursuing. A good lawyer will talk through the professional consequences that might come with blowing the whistle and will not pressure you to take any particular action. The truth is that few lawyers have the experience necessary to effectively represent whistleblowers, so do your homework, but don’t delay in contacting an attorney.
Question: “What do I need in order to bring a whistleblower claim under the False Claims Act?”
Answer: Evidence!
To be a successful whistleblower, you should immediately begin thinking like an investigator or a prosecutor. Ask yourself this simple question: “How would I prove my case to an objective, and maybe even skeptical, juror?” Often, clients come to us adamant that their employer is committing fraud. However, when pushed for details, they can’t provide nearly enough specifics to justify filing a case. Successful whistleblowers gather specific evidence that demonstrates and establishes that fraud is taking place. For example, if you believe your employer is up-coding (billing for a more expensive service than what was actually performed), then you will likely need specific examples involving specific patients. “What about HIPAA?” you might ask. Fortunately, the federal government is one step ahead of you and has established an exemption from those privacy rules that allows a whistleblower to share otherwise confidential patient information with a lawyer if there is a good faith basis to believe Medicare or Medicaid fraud is occurring.
Our clients have brought us evidence ranging from medical charts to recorded conversations with supervisors. Gathering this evidence can be tricky, though. Even though HIPAA provides an exemption for sharing otherwise confidential information, there are other pitfalls that would-be-whistleblowers must avoid. Documents reflecting the advice of the company’s lawyers, for example, raise all kinds of privilege issues. Therefore, the most prudent course of action is to consult with an experienced whistleblower attorney as soon as possible to navigate these complex waters. Since the False Claims Act requires a whistleblower to file a case with a lawyer rather than pro se (on your own), there is no good reason to delay interviewing potential lawyers to handle your case.
It will also be helpful if you start making your own notes about the fraud or other misconduct you are observing. The more details, the better. Government investigations can take a very long time. Important events and conversations that are clear to you today may become hazy over time. So if you see or hear something that you think is important, write it down and save those notes. Memories fade, so take notes that you will understand long after the event.
Question: “Should I report the fraud internally?”
This is a great question, and there is no definitive answer. There is no obligation under the False Claims Act to report the fraud internally before filing a case. But some whistleblowers feel that they should give their employer the opportunity to do the right thing before escalating the issue. In many companies, you can report fraud anonymously via an internal hotline. Additionally, individuals with evidence of Medicare or Medicaid fraud can file a complaint with the Office of the Inspector General for the Department of Health and Human Services.
The fact that these options exist does not mean that they will all be good options for you. Fear of retaliation or reputational damage can make these decisions difficult. At the risk of repeating ourselves, get to an experienced lawyer as soon as you can to talk through these issues, because you need objective advice before making decisions that can have such serious personal consequences.
In summary, once you’re convinced that there is fraud taking place against the United States, you should do three things. First, gather as much evidence as possible that demonstrates the fraud. Second, decide whether to report your suspicions internally. Third, retain an experienced lawyer as soon as possible to guide you with all of the above. We’ll have more on how to find the right lawyer for your case in our next update in this series.
Want to learn more? Check out our other posts on the “So You Want to Blow the Whistle” series:
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