Health-Care Whistleblowers Look to Leverage DOJ Partnership

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By Eric Topor

Attorneys representing whistleblowers should establish strong relationships with DOJ’s affirmative civil enforcement coordinators if their cases are to stand out, and attract DOJ intervention, among the growing number of False Claims Act lawsuits filed every year.

Affirmative civil enforcement (ACE) coordinators are assistant U.S. attorneys tasked with handling False Claims Act lawsuits filed in their judicial district by an FCA whistleblower. Knowing the priorities and needs of a particular ACE coordinator or coordinators in a U.S. Attorney’s Office’s Civil Division will enable whistleblowers’ counsel to present their client’s FCA case in the best possible light to DOJ prosecutors. This is important because FCA whistleblower cases alleging health-care fraud have a far greater chance of reaching either a settlement or judgment against a defendant if the DOJ intervenes in the lawsuit and takes over prosecution.

ACE coordinators are looking for well-thought-out FCA complaints, “adequate support for the legal theory” of the alleged fraud, and whistleblowers who are well placed in a defendant company, according to R. Scott Oswald, a whistleblower attorney and managing principal of The Employment Law Group in Washington. Oswald is also vice chair of the Federal Bar Association’s Qui Tam Section, and will be moderating a panel with three ACE coordinators at the association’s 2018 Qui Tam Conference in Washington Feb. 27.

Renee Brooker, counsel at Finch McCranie LLP in Washington, told Bloomberg Law that the relationship between whistleblower counsel and ACE coordinators is a “partnership,” and the coordinators want “strong partnerships with [counsel] who bring strong cases.”

Oswald said every ACE coordinator’s department operates differently, with some having larger case loads, multiple coordinators, and their own investigative staff, while others might have few or no staff, and handle FCA matters only infrequently. An important consideration for whistleblowers, and the DOJ, is deciding in which USAO district to file an FCA case, as different districts are bound by different prevailing FCA rulings on issues like pleading standards and materiality.

Where to File

Eva Gunasekera, also counsel at Finch McCranie LLP in Washington, said deciding where to file an FCA case is very much a “strategic consideration"—for a whistleblower and for the DOJ. The FCA has a “broad venue provision,” Oswald noted, and it “may be advisable to file in certain districts,” depending on the prevailing FCA law in a particular district.

ACE coordinators are also responsible for interfacing with state attorney general offices and state Medicaid fraud units, which sometimes have more resources to investigate allegations of health-care fraud than a USAO, Gunasekera said.

Looking for a ‘Hook’

Some USAOs market themselves to whistleblower attorneys, hoping to entice FCA filings in their own districts, said Brooker, a former assistant director in the DOJ’s civil fraud division. Brooker told Bloomberg Law that ACE coordinators can reach out to whistleblower attorneys at bar association meetings, and some new U.S. attorneys might invite prominent whistleblower counsel from their districts to meet in the U.S. attorney’s office if FCA enforcement is a priority.

But all ACE coordinators are looking for a “hook” to their district, Brooker said, when a false claims case is brought to their USAO, especially in districts that see a slew of filings like those in federal courts in Florida and Massachusetts. ACE coordinators in these districts “have their pick of the litter” in choosing FCA cases to invest resources in, according to Brooker, and are looking for cases that directly affect their district, have patient harm, and contain allegations involving high dollar amounts.

Brooker noted that the U.S. attorney and the presidential administration at the helm of the DOJ set the tone for enforcement priorities at individual USAOs, and there has been a shift more toward more criminal enforcement during the Trump administration. The Obama administration emphasized civil enforcement, Brooker said, but for the Trump administration, “all the publicity is on criminal” enforcement.

Whistleblowers Driving DOJ

Gunasekera said, though, that ACE coordinators are largely reacting to what FCA cases are filed in their districts. Whistleblowers “can drive the subject matter focus [at a USAO] depending on what [whistleblowers] are bringing to them,” Gunasekera said.

Brooker agreed, noting that the ACE coordinators are “spending 98 percent of their time investigating qui tam” cases, rather than those originating from the DOJ’s own investigations. Brooker said big settlements against one type of health-care entity or area can bring out more whistleblowers with similar allegations of fraud, and it’s possible that the criminal focus on the opioid crisis could “spill over” to civil enforcement as well.

To contact the reporter on this story: Eric Topor in Washington at etopor@bloomberglaw.com

To contact the editor responsible for this story: Peyton Sturges at psturges@bloomberglaw.com

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