Minimizing Litigation Risks in 2006: A Strategic Briefing on Medicare Parts B&D and Minimizing & Managing the Whistleblower Phenomenon
The federal False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”), provides a private right of action for lawsuits alleging that the private entities have fraudulently overcharged the federal government. The FCA allows whistleblowers, called “Relators,” to file lawsuits alleging violations of the FCA and, if successful, to be paid a portion of the amount recovered. While the number of whistleblowers who share in recoveries is relatively small, those whistleblowers who do succeed can recover large sums that attract publicity. This fact, along with the federal government’s increasing involvement in policing the healthcare industry, have led to the number of whistleblower cases dramatically increasing over the last few years. In Rockwell International v. United States ex rel. Stone, the United States Supreme Court clarified the contours of the public information bar to a whistleblower participating in any recovery in an FCA case, and to the original source exception to that bar. The public information bar is a significant defense often used by FCA case defendants, and the original source exception to that bar doctrine is an important weapon against this defense. This presentation analyzed the import of the Rockwell opinion on FCA litigation. The presentation also discussed the kinds of practices that tend to interest prosecutors presented with the chance to intervene in FCA cases , and strategies for protecting against FCA claims, and that discourage government participation in such cases.