December 27, 2022
The average person – and, frankly, even the average attorney – may not know what the terms “qui tam” or “relator” mean, given that they generally do not come up outside of specific areas of law. In fact, google the term “relator” and you will likely get results for “realtor,” but the terms refer to very different things. A realtor may sell a piece of property for a 2-3% commission, but a “relator,” or “qui tam relator” is a person who brings a whistleblower lawsuit on behalf of the federal or state government, and stands to gain 15-30% of the government’s financial recovery, meaning such a person can potentially earn millions of dollars for doing their part to expose fraud perpetrated against the government.
Qui tam (a Latin phrase meaning “who sues on behalf of the King as well as himself) lawsuits in the United States are generally brought under the federal False Claims Act (“FCA”) or state law false claims act statutes (including the California False Claims Act, or CFCA) by private plaintiffs who have knowledge of fraud perpetrated by private defendants against the government, and, again, these private plaintiffs are referred to as “qui tam relators” or simply “relators.”
FCA fraud can occur in a number of contexts, including defense procurement and customs fraud, but one industry in which such fraud occurs extremely frequently is healthcare, most prominently with respect to fraudulent claims for Medicare and Medicaid reimbursements.
Who Can Be a Qui Tam Relator in Healthcare?
The key qualification to be a successful relator is to have sufficient knowledge of fraud such that an FCA complaint alleging the fraud can be filed. Note that a relator does not have to have sufficient evidence to prove the case at this point, only to meet minimum pleading requirements and ideally convince the federal or state government to intervene in the lawsuit.
In the context of healthcare, such a person with knowledge of an organization’s Medicare or Medicaid fraud might be a C-level executive, such as a Chief Operating Officer or Chief Financial Officer. But it might also be a nurse who is told by a physician to order unnecessary medical services for the purposes of obtaining greater reimbursement. Or it might be a billing specialist who is aware that certain services or medical goods submitted for reimbursement are being “upcoded” or simply not provided at all. In fact, there is no requirement that a qui tam relator be employed by the organization at all, so long as that person has sufficient knowledge and/or evidence of the fraud and is willing to come forward with it.
What Is the Role of a Relator in Pursuing an FCA Claim?
A relator is a private plaintiff who files the lawsuit against the defendant(s) alleged to have engaged in FCA fraud. Prior to filing the lawsuit, relators typically work with their FCA counsel to collect and best assemble the allegations and evidence necessary for a successful FCA pleading. When an FCA claim is filed in federal court, it is actually filed “in camera”, meaning the lawsuit is filed under seal and is thus not a public record for at least a period of time, and thus the relator can remain anonymous during this phase.
At the same time as the FCA lawsuit is filed, a copy of the complaint is also served on the relevant US Attorney’s Office. Federal prosecutors then have a period of time to investigate the accuracy and sufficiency of the allegations contained in the complaint in order to determine whether the federal government should intervene in prosecuting the FCA claim. Generally, relators want the federal government to intervene in the case, as federal prosecutors will provide prosecutorial and investigatory resources to pursue the claim, and it is a positive sign that the case is a compelling one with a significant likelihood of success.
Even if the government does not intervene, the private relator can pursue the FCA lawsuit. In either case, the lawsuit can proceed in federal court, and the relator may or may not be providing testimony, as each case will depend on the evidence available to the plaintiff and/or the government.
Federal False Claims Act Whistleblower Protections for Relators
Qui tam relators – and indeed anyone who participates in furthering an FCA action – are protected by retaliation against their employers for pursuing an FCA lawsuit. Pursuant to the FCA, any “employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment” due to their participation in furthering an FCA action.
Should an employer retaliate against an individual for participating in an FCA action, that individual has the right under the FCA to pursue various legal remedies, including “reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”
Becoming a Qui Tam Relator
If you believe that you have knowledge of potential FCA violations that could lead to your bringing a successful whistleblower lawsuit as a qui tam relator, it is advisable that you speak with an experienced FCA attorney sooner rather than later. In so doing, you can have a 100% confidential consultation or series of consultations with counsel to determine both whether you have sufficient knowledge and/or evidence of wrongdoing to pursue a claim and/or whether you can collect such evidence, and how to properly do so to strengthen your case without violating applicable laws. Your attorney can also take steps to protect your identity in pursuing the case, and avoid retaliation.
Our attorneys have combined decades of experience in both the federal government and in the highest levels of private practice, and are ready to work with you to counsel you on pursuing your FCA claim.