What It Means To Be A WhistleblowerDefining Whistleblowers and Their Role in Our Country

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What is a Whistleblower?A whistleblower is someone with evidence of fraud or other wrongdoing who then reports that misconduct to the company, the government or both.

Who Can Be a Whistleblower?Anyone who has evidence of fraud or wrongdoing inside a company can be a whistleblower. While most whistleblowers are current or former employees, it is not a requirement. It is also not required that you witnessed the fraud or misconduct firsthand.

The False Claims ActThe False Claims Act (sometimes referred to as the “Lincoln Law”) was passed in 1863 and allows ordinary citizens to bring whistleblower cases on behalf of the government. These set of laws are most often used by whistleblowers to report fraud or wrongdoing against the federal government. It also awards them 15-30 percent of the amount that is recovered by the government. One of the most important provisions in the False Claims Act is the Qui Tam provision.

What is the Qui Tam Provision?The False Claims Act includes a “qui tam” provision. “Qui tam” is a Latin phrase that roughly means “he who sues for the king as well as for himself.” In practice, this means that a qui tam suit is one in which you sue the wrongdoer on behalf of the U.S. government. Those who do so are referred to as “relators.” It is up to the government to decide whether or not they will take part in a qui tam suit.

What is the statute of limitations for whistleblowing?It is essential that a whistleblower report fraud or wrongdoing as soon as possible. Each whistleblower law has its own statute of limitations, delineating the amount of time by which claims must be filed. If such time limits are not met, the whistleblower’s claim may no longer be legally actionable.Under the FCA, the filing limitations for qui tam suits are as follows:• A suit must be filed within six years from the date

of the fraud• OR three years after which the government knew

(or should have known) about the fraud.• AND no later than ten years after the fraud.

Types of Fraud

• Defense Contractor Fraud

• Qui Tam Damages and Awards

• Healthcare Fraud

• Medicare Fraud

• Securities and Commodities Fraud

• Mortgage Fraud

• Tax Fraud Reporting

Medicare Fraud & Upcoding

Let’s take a deeper look at one of the more costly and rampant forms of fraud to gain a deeper understanding on the importance of whistleblowers. • One of the most common forms of Medicare fraud is called

upcoding. • The Center for Public Integrity says that Medicare fraud

could amount to over $11 billion from 2001 to 2010 alone, and that much of this fraud comes from upcoding.

• Upcoding occurs when a provider performs a service for Medicare and then bills Medicare for a higher paying service than was performed.

• This process of fraudulent billing to Medicare ends costing the government significant amounts of money and can affect projections over future costs and health care spending.

• The same 2012 report from the CPI stated that abuse seemed to have occurred most frequently in hospital emergency rooms.

Examples of Medicare Whistleblower CasesUnfortunately, a lot of Medicare fraud has occurred in our state and in our nation. Here are just a few recent cases:• In 2015, a California man was sent to prison for Medicare

fraud. He established a “ghost” medical clinic in South Carolina that billed Medicare over $1.1 million. Medicare paid roughly $350,000 in claims.• Also in 2015, qui tam suits alleging Medicare fraud that were

filed by former employees of Nason Medical in Charleston were settled with the federal government for over one million dollars.• One more this year: Two labs (VA and CA) that tested for

heart disease settled for $48.5 million due to three whistleblower actions. Admirably, a Hilton Head doctor was one of the whistleblowers.

Securities FraudUnder the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Office of the Whistleblower was established for the Securities Exchange Commission (SEC) to encourage those who have information about securities and commodities laws violations to notify the authorities. The SEC entitles whistleblowers to an award if their evidence meets the criteria required to bring a case. The information must:• Be voluntary. Your submission of information to the SEC must occur

before it is requested by the SEC, by Congress, or by some other regulatory or enforcement agency, such as FINRA.

• Be original. Original information comes from a whistleblower’s independent knowledge or analysis that is not already known by the SEC and is not a product of publicly available sources.

• Lead to success. If the SEC opens a new investigation, re-opens a previous one, or pursues a new line of investigation, and a successful action is brought based at least partially on your information, then it has led to success. Additionally, the information must lead to monetary sanctions of more than $1 million (called the “covered action”).

• Have been first submitted after July 21, 2010, when Dodd-Frank was enacted. Submissions before that date are not eligible for an award. However, the date of the illegal conduct reported can have occurred before that date.

Consequences of WhistleblowingUnfortunately, taking a stand can also come with the risk of retaliation by employers. Whistleblowers can often file for reinstatement, back pay and other damages. The following actions taken by an employer against a whistleblowing employee are prohibited:• Blacklisting, making you unable to secure future

employment in your field• Demotion• Denying a promotion or overtime• Denying benefits• Disciplining• Issuing a policy that conflicts with whistleblower protections• Firing, laying off, or suspension• Reassignment to a position that adversely affects your

future prospects• Reduction of pay or hours• Threats and intimidation.

More About Protection for Whistleblowers From the U.S. Department of Housing and Urban Development:“The Whistleblower Protection Act of 1989 prohibits retaliation. This means it is unlawful for agencies to take or threaten to take a personnel action against an employee because he or she disclosed wrongdoing. Personnel actions can include poor performance review, demotion, suspension or termination. In addition, the law prohibits retaliation for filing an appeal, complaint, or grievance; helping someone else file or testifying on their behalf; or cooperating with or disclosing information to the OIG (Office of Inspector General).” https://www.hudoig.gov/fraud-prevention/whistleblower-protection

The Importance of RepresentationThe laws covering whistleblowing activity are extremely complex, requiring you to file a number of forms that may not be clear in what they ask you to do and supply in the way of evidence. Although you could go it alone, having a skilled and experienced whistleblower attorney will go a long way towards giving you peace of mind. Your legal team can help you make the best case possible, ensure that your legal protections are observed, and help get the government interested in taking part in your suit.

Do You Want to Speak Out About

Fraud or Wrongdoing?Time is of the essence. The Louthian Law Firm can assist you in evaluating your case and deciding the best course

of action for your particular circumstance. Visit our website to learn more about how we can help

you or give us a call to talk to us directly at 855-573-

6264. http://www.louthianlaw.com