HME whistleblowers on the rise, attorney says

WASHINGTON -- Don't be surprised if you begin to see a steady rise in the number of whistleblower lawsuits in the HME industry, said Jeff Baird, a healthcare attorney with Brown & Fortunato in Amarillo, Texas. Over the past few months, Baird has seen a marked increase in the number of whistleblower (qui tam) cases from "coast to coast." He attributed the increase primarily to two factors: 1.) More and more HME employees are aware of fraud and abuse issues; 2.) Attorneys are looking for new markets where they can generate revenue. "Ten years ago, if a DME employee was fired, the worst thing that could happen to a company would be that employee would file for unemployment," Baird said. "That is no longer the case." The U.S. False Claims Act allows private citizens to file fraud lawsuits against companies on behalf of the U.S. government. That includes citizens with a sincere concern that fraud is being committed as well as disgruntled employees and ex-employees looking to cause trouble and cash in. Ideally, whistleblowers want to collect enough evidence to convince the U.S. government to take the case over. In general, whistleblowers lack the money to pursue cases the government ignores. When the government intervenes, the relator (whistleblower) normally recovers 15% to 20%. When the government does not intervene, the relator normally recovers 20% to 25%. Contrary to what Baird is seeing, several other healthcare attorneys reported seeing no spike in the number of whistleblower cases they handle. Forbes magazine, however, reported in March that fiscal year 2003 saw 326 whistleblower suits, 10 times as many as cropped up in 1986. The government gets involved in only about one-sixth of the cases, Forbes reported. "The qui tam caseload has grown significantly," said an employee with the OIG, which investigates Medicare fraud. "It's being fueled by public awareness and people wanting to make money. It's all driven by 'what can I make out of this.'" Likewise, for every dollar the government spends prosecuting a whistleblower case, it brings in $13, Forbes reported. With that kind of return on investment, "if you think the government is going to stop, you are crazy," said another industry attorney.