What Is Qui Tam?
Quite often clients see this term associated with False Claims Act cases and wonder, “What is qui tam?”
Qui tam is the abbreviated form of a Latin phrase that translates to “[a person] who sues in [a] matter for [a] king [and also] for himself.” Qui tam laws were first used in 13th-century England to help enforce the laws of the king. The current federal and state False Claims Acts include subsections which are now called qui tam provisions. Those are the provisions that give individuals the right to sue on behalf of the government. Cases filed under the federal and state False Claims Acts are also commonly called qui tam cases.
The history of the U.S. False Claims Act, sometimes called the Lincoln Law, begins in 1863, when the first version was enacted. The law established liability for federal contractors and other businesses that defrauded the U.S. Government.
There are now more than 30 state and local qui tam laws modeled on the federal act that allow for private citizens to report cases of fraud against those governments.
When a private person reveals misconduct by his or her employer or another business, the practice is often referred to as “whistle-blowing.” “Whistle-blowers” in a False Claims Act case are also known as “relators.”
In a qui tam action, relators are entitled by statute to a share of the government recovery that is between 15 and 30 percent of the total amount recovered.
The False Claims Act works on a “first-come, first-served basis”
The government wants to get information about fraud as soon as possible. Therefore, the False Claims Act has an incentive to file your case quickly. The first person to “blow the whistle” is usually the only plaintiff or “relator” allowed to pursue a recovery for that particular fraudulent scheme. Qui tam cases must be filed under seal, so there is no way for an individual whistle-blower to determine whether a similar case has already been filed prior to filing a case.
There have been cases in which several whistle-blowers knew about different parts of a fraudulent scheme or the same defendant was involved in more than one fraud. Indeed, one whistle-blower may not always know the whole story. In some of these cases, the government has rewarded multiple plaintiffs.
Still, the general rule is that the first person to file the case is the person with the right to collect a share of the government’s recovery. Therefore, the sensible course is to contact a lawyer and determine if the case is worth filing as soon as possible in order to try to be sure to obtain your fair share of the recovery.
False Claims Act qui tam cases should not be based on publicly disclosed information
Complaints from individuals attempting to make a claim based solely on publicly available knowledge have been called “parasitic” claims and usually are not allowed. The exception is when the person bringing the case qualifies as an original source. Establishing an individual as an original source in a case is a technical area of the law.There are specific statutory requirements under the False Claims Act for an individual to be an original source. Since this is difficult to determine without significant legal knowledge, it is wise to seek counsel to determine your status and help you preserve your ability to file a case.
It may seem strange for a whistle-blower, but speaking to the media about a qui tam case can actually hurt the individual’s chances of winning a share of any government recovery. If you feel you have information regarding fraud against the government, speak to a lawyer before you speak to the media.
Success is more likely when the government joins the case
After a complaint has been filed, the government will review the case and conduct an investigation. Although the investigation can take months and sometimes even years, after it is completed the government may decide to “intervene” in the case. This means the government is taking primary responsibility to prosecute the case and or settle the case with the defendant. Government intervention increases the chance of winning the suit substantially. The government’s resources can only help achieve success in the case. If the government does decide to join the case, the reward to the whistle-blower is set by the law as between 15 and 25 percent of the recovery.
Types of fraud commonly exposed by qui tam action
Among the many contractors that bill the government for products and services, some do take an opportunity to extract extra funds. This is when whistle-blowers and the False Claims Act come into play. The federal False Claims Act, allows whistle-blowers to file a lawsuit on behalf of the government. Whistle-blowers report individuals or entities who knowingly submitted or caused the submission of false or fraudulent claims to the United States. All kinds of federal contractors, virtually anyone who does business with the government and commits fraud in that business interaction, can be a defendant in a qui tam action.
Qui Tam and Health Care
Perhaps the most common type of fraud arises from health care providers, because the federal government is in the business of providing health insurance for so many people. Government funds are used to fund prescriptions, hospitals and virtually every kind of service associated with health care. Therefore, health care providers who engage in overbilling or fraudulent billing regarding any of their cases will also usually end up defrauding the federal and state governments through government medical insurance programs such as Medicare. For example, some healthcare providers have been found guilty of “upcoding” the service provided. Upcoding is changing the level of care on the bill to reflect something different from what was provided to the patient. When such practices occur, they almost always involve government agencies being wrongfully billed. These issues are difficult if not impossible to catch from outside of the system. The government needs whistle-blowers with inside information about the billing practices a particular health care provider uses to catch this kind of fraud.
When a healthcare fraud case arises, a whistle-blower can report the fraudulent activity by filing a qui tam lawsuit.
The suit is brought on behalf of the government and filed “under seal.” The government will conduct its own investigation while the case remains sealed. Through information raised in the investigation, the Department of Justice will decide whether it wants to get involved in the case by intervening. If the government chooses to intervene, it has likely collected enough evidence to present a strong case in court. Throughout this process, whistle-blowers must work with their attorneys to help further the case and to cooperate with the government.
Why it is important to retain a good attorney
When you choose to file a qui tam lawsuit under the False Claims Act, you are playing a tremendously important role in keeping someone and ultimately an entire industry honest. For example, substantial and successful litigation directed against the pharmaceutical industry over the last 10 years has helped to change that industry and how it markets drugs. Taking on such litigation is no small matter. You will need a good qui tam lawyer to help make your case successful. Our firm provides whistle-blowers with the essential support that they need. We work to ensure that your case has the best chance of winning and we have the knowledge to ensure that your rights are protected when you blow the whistle on fraud.