Bradley attorney Jason Mehta was quoted in HealthLeaders on the increasing number of healthcare fraud lawsuits filed under qui tam provisions of the False Claims Act (FCA). The law is designed to give whistleblowers an incentive and protections to come forward with allegations of fraud in federal programs, such as Medicare and Medicaid. However, some contend qui tam litigation, which allows individuals to sue on the U.S. government’s behalf, has gone too far.
"There is no question that healthcare providers are dealing with whistleblower lawsuits in increasing frequency like never before," said Mehta. "For most healthcare providers, it's a question of when, not if, they're going to have to deal with one of these whistleblower lawsuits.”
"Regardless of what the Supreme Court does or does not do, this should be an early warning sign for healthcare providers out there that the stakes are very high," Mehta added.
Intermountain Healthcare has been fighting one such case for nearly seven years. The nonprofit system appealed all the way to the U.S. Supreme Court, saying heavily regulated industries "are forced to bear the brunt of overzealous litigation." Intermountain argues the allegations in this case were insufficiently particular and that the FCA's qui tam provisions are unconstitutional. However, the health system may face long odds for procedural and precedential reasons.
Since whistleblower claims are nearly inevitable for most healthcare organizations, leaders should be taking steps now not only to prevent FCA violations but also to anticipate them. That demands more than simply waiting to see how Intermountain's case shakes out, Mehta explained.
"Healthcare providers should be monitoring these developments. They should be monitoring what the Supreme Court says and what other courts say," he said, "but perhaps the best advice for most healthcare providers is to take this as kind of an early warning sign and do everything possible to proactively get ahead of the curve.
"On the one hand, that means systematically reviewing your organization's claims to make sure your people are staying within bounds,” Mehta said.
On the other hand, it also means developing strong internal reporting structures that whistleblowers can trust—such as hotlines to report suspected FCA violations—so they don't feel the need to become external whistleblowers seeking government intervention, he added.
The details are outlined in the DOJ's guidance. But be sure to consult with competent legal counsel before deciding whether to voluntarily disclose information to the government and what information to disclose, said Mehta.
"The way that the government can use information is often opaque to outsiders and experienced lawyers can help clients navigate these perilous waters," he said.
The complete article, “Don’t Ignore Intermountain’s Long-Shot Bid to Deflate the False Claims Act,” first appeared in HealthLeaders on May 15, 2019.