Champions for the courageous
who report fraud.
Our nation’s whistleblower laws embody the wisdom that ordinary Americans are oftentimes best positioned to monitor and report on fraud.
Whistleblowers can play an important role in exposing illegal activity and holding companies accountable for fraud.
We represent courageous individuals who report fraud against the government. As you would expect, fraud against the government can arise in a range of contexts. It includes defrauding government health care programs, frauds directed at the Department of Defense, and fraudulent government loan applications. Anytime the government has contracted with a company to acquire goods or services and then it does not receive what it bargained for, the possibility of fraud exists. It also includes fraudulent activity related to taxes, securities or commodities, and safety-related motor vehicle defects.
We pursue whistleblower claims under federal and state false claims acts and other fraud reporting programs including the whistleblower programs of the Securities and Exchange Commission, Commodity Futures Trading Commission, and Internal Revenue Service.
The practice is led by Gary L. Azorsky who has recovered nearly $8 billion in defrauded funds for federal and state governments, including hundreds of millions of dollars for whistleblowers. He is recognized for his knowledge of the False Claims Act, having provided expert guidance on the FCA in congressional hearings and before the Vermont Senate Judiciary Committee in support of the passage of the FCA for the state.
We co-counsel nationwide.
Your confidentiality is of paramount concern throughout our initial consultation, investigation and any litigation. We represent:
- Private citizens such as physicians, nurses, stockbrokers, program managers, financial analysts, engineers, scientists, medical coders, sales representatives or accountants, who have witnessed their company, or a company whose operations they have reason to know, engage in mis-billing, mis-leading, or mis-stating information in the course of providing goods or services being paid for with government funds.
- Businesses that have learned that their competitors are engaged in fraudulent schemes directed against the government. Sometimes these schemes are intended to give the competitor an unfair advantage in soliciting government business, thus triggering potential overlapping antitrust violations.
If the government intervenes and is able to recover lost revenue or financial damages from the company, you may receive a whistleblower award, ranging from 15% – 30% of any amount recovered. These awards act as an incentive for whistleblowers to step forward and alert the government to fraud.
The integrity of the securities and financial markets is critical to the growth and stability of the U.S. economy. Whistleblowers play an important role in reporting fraud to the Securities and Exchange Commission (“SEC”) and Commodity Futures Trading Commission (“CFTC”) to assist in their mission of protecting investors and regulating U.S. financial and commodities markets.
The SEC enforces the federal securities laws, primarily contained in the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, the Sarbanes-Oxley Act and the Dodd-Frank Act. It has broad jurisdiction over the U.S. financial markets and regularly brings enforcement actions against public and private companies, banks, investment advisers, asset managers, and individuals.
Common examples of securities fraud include:
- False or misleading disclosures regarding a company’s financial results or condition, its products, or its business risks
- Improper securities trading practices
- Charging hidden fees to investors
- Ponzi schemes
- Bribery of foreign officials
- Failing to register securities, including digital tokens and other crypto assets
Similarly, the CFTC enforces the Commodity Exchange Act, the primary federal law regulating transactions in commodities, such as oil, gas, agricultural products, and metals. The CFTC also has jurisdiction over financial derivatives such as commodity futures and certain types of option or swap agreements. It frequently brings enforcement actions against commodity market participants for fraudulent disclosure, market manipulation, and trading violations.
Health care fraud has generated large numbers of false claims cases and most of the government dollars recovered from false claims lawsuits each year.
Health Care Provider Fraud: Health care providers, including hospitals, ambulatory surgical centers, skilled nursing facilities, dialysis, or pain management centers, and/or home health care and hospice providers may commit fraud related to government health programs such as Medicare and Medicaid and TRICARE, the health care program for uniformed service members, veterans and their families.
Fraud can be perpetrated by: 1) misrepresenting on claims for government reimbursement that services were performed when they were not, 2) fraudulently charging for medical services such as skilled therapy or medical procedures that were unnecessary, 3) “upcoding” medical services, meaning that a provider fraudulently bills for a patient visit, or medical procedure, at a rate reserved for longer, more complex services than those actually performed, 4) “unbundling” a set of inter-related procedures that are required to be bundled together for billing purposes in order to falsely increase reimbursement or 5) having nurses or other personnel perform services which only physicians can lawfully perform.
Individual health care providers such as physicians, dentists, or hospital executives who play a decision-making role in engineering or orchestrating the fraud, can also violate the False Claims Act.
Managed Care Fraud: Unlike the traditional Medicare fee-for-service model, Part C of Medicare allows participants to receive their health insurance from Medicare Advantage Organizations. These private companies (“MAOs”), receive a fixed sum of money annually per patient (the amount of which depends on the health of each member patient), make payments to providers for that patient’s covered services, and keep the difference as their profit. Medicaid Managed Care programs operate in a similar way under state Medicaid programs.
Capitated payments provide a profit motive to MAOs to operate efficiently and rein in overall health care spending. In practice, though, this payment structure can provide incentives for companies to unlawfully increase their profits by manipulating cash flows on both ends of the equation. At one end, they can represent to the government that their patient population is less healthy than it is, thereby increasing the patient’s “risk score” and obtaining artificially increased capitation payments. At the other end, they can pay providers less than they are entitled to unlawfully inflate profits. In recent years DOJ has intervened in a number of qui tam lawsuits alleging that MAOs have tampered with member patient’s medical records to make them appear sicker than they are to increase capitated payments. One tactic MAOs have used to game the system is to hire third parties to conduct one-sided patient file reviews –. meaning inaccurate patient risk scores are only corrected when they are too low, but too high.
Pharmaceutical and Medical Device Fraud: Allegations of FCA violations arising from overcharging the government health care programs for drugs and medical equipment have led to sizeable recoveries against drug manufacturers and medical device companies.
Often drug price schemes involve situations in which the price the government pays for the drug is derived from the commercial price the drug company reports to the government. By misrepresenting that commercial price, the government is tricked into paying a fraudulently high amount. Drugs and medical devices must be reasonable and necessary to be eligible for government reimbursement. When a provider seeks reimbursement for a drug or device which was not, false claims act liability can attach. Similarly, although a physician can prescribe a drug for an “off-label” use (meaning a use which has not been FDA approved for safety and efficacy), the drug manufacturer is generally prohibited from promoting a drug for such an off-label use. If such promotions result in prescriptions for off-label use, particularly when drug manufacturers have paired these promotions with false statements about the drug, the false claims act may well be violated. The use of invalid drug patents to block generic entry is beginning to receive attention as a potential violation of the false claims act. The harm wrought by the anti-competitive behavior is obvious – by fraudulently blocking generic entry with bogus patents, the brand manufacturer unlawfully maintains a monopoly and inflated, monopolistic prices which the government ends up paying.
The FDA recognizes three separate classes of medical devices: Classes I, II, and III. The individual classes take into consideration a product’s intended use, indications for use, and the level of risk associated with the product. The circumstances giving rise to false claims violations in this context parallel those of the pharmaceutical fraud. Class III devices are generally invasive and carry the most risk. The potential for patient harm, always an important consideration in assessing the merits of a false claims case, is a particularly urgent one when evaluating fraud and Class III devices.
Pharmacy Benefit Manager Fraud: Pharmacy benefit managers (PBMs), are companies that manage prescription drug benefits on behalf of government funded programs such as MAOs, Medicare Part D drug plans, and government employee health benefit plans. In exercising this role, PBMs routinely negotiate with drug manufacturers and pharmacies. Although the contractual relationships between PBM’s and the numerous parties with whom they conduct business are generally not made public, a PBM is as a general matter obligated to pass along the cost savings it negotiates on behalf of the program it represents. To the extent it conceals this benefit, and pockets it for itself, the PBM is opening itself up to liability under the FCA for causing false claims to be submitted to the government. Additionally, PBM’s sometimes wear several hats while operating within the complicated matrix of the pharmaceutical distribution chain. This means there may well be situations in which the PBM has financial interests which conflict, and thus may be incentivized to negotiate for something less than the best deal possible for the government program. Should this happen, the false claims act has potentially been violated.
Durable Medical Equipment (DME) Fraud: DME is equipment which can be used repeatedly, such as beds, wheelchairs, and back braces. This realm of health care is subject to less regulation and has fallen victim to some of the most egregious examples of billing the government for items which were induced by kickbacks, unnecessary, never provided or, as has occurred with items such as back braces, hearing aids and glucose monitors, were never prescribed by a provider.
Anti-Kickback Statute and Stark Laws Violations: The Anti-Kickback Statute (“AKS”) is a criminal law that prohibits the knowing and willful payment of “remuneration” to induce or reward patient referrals or the generation of business involving any item or service payable by federal health care programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients). Remuneration, defined broadly, includes anything of value. It can take many forms besides cash, such as free or reduced rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies. A health care provider can be guilty of violating the AKS even if they rendered a medically necessary service.
Electronic Health Records Fraud: EHRs are electronic versions of the information contained in paper charts in your doctor’s or other health care provider’s office. An EHR may include your medical history, notes, and other information about your health including your symptoms, diagnoses, medications, lab results, vital signs, immunizations, and reports from diagnostic tests such as x-rays. The federal government has long recognized that EHRs have the potential to improve health care but can also cause harm to the provision of safe and effective health care if they do not function properly.
To encourage hospitals to invest the millions of dollars needed to purchase and use a foundationally sound EHR system, in 2010 the government established programs under Medicare and Medicaid to pay significant Incentive Payments to hospitals and physicians for owning and using EHRs certified against a federal standard. This goal, albeit extremely worthwhile, created the potential for fraud in a least two respects. First, to qualify for Incentive Payments the EHR software must be “certified” meaning that it was tested by a government approved body and found to be capable of performing a set of specific criteria. If the software manufacturer cheats during the testing, the software will falsely receive certification causing hospitals and other providers to unwittingly apply for Incentive Payments using unqualified software. Second, to receive Incentive Payments, providers must demonstrate that they are using the software in a “meaningful manner” by satisfying certain objectives. If the provider falsely represents that these objectives have been satisfied, FCA liability will attach.
Telemedicine Fraud: Prior to the Covid pandemic, Medicare and Medicaid programs had been repeat targets of telefraud, as had unsuspecting patients in their homes. When the coronavirus pandemic began in 2020, Congress acted quickly to ease restrictions on telemedicine through the CARES Act. This expanded the circumstances under which doctors could bill Medicare and Medicaid for seeing patients and providing services remotely. The law also allowed providers to charge for seeing patients in other states for the first time. This led to an explosion of telemedicine fraud.
Federal and state governments enter into a great many types of contracts with private companies for the provision of goods or services, and when companies commit fraud to obtain public contracts or commit fraud in the performance of those contracts, they can violate the federal and state false claims acts.
Government contracting can – and often does – occur in nearly every area in which public funds are expended. These areas include defense contracting, infrastructure, information technology, building construction and maintenance, and the purchase of all manner of tangible goods.
Common forms of contracting fraud include:
- Providing non-compliant or substandard goods or services, or failing to provide the required goods or services at all
- Billing for more expensive goods or services than were provided
- Making false certifications as to the quality or attributes of the goods or services provided, or the manner in which they were provided
- Engaging in bribery or other misconduct related to a public bidding or procurement process
- Fraud in connection with government set aside programs for minorities, women and the disabled
Individuals with information regarding government contracting or procurement fraud may be able to bring qui tam lawsuits under the federal or state false claims acts and be eligible for a financial award of 15-30% of the government’s recovery.
In the wake of several serious motor vehicle safety scandals, in 2015 Congress passed and President Obama signed the “Fixing America’s Surface Transportation Act,” which established a Motor Vehicle Safety Whistleblower Program at the Department of Transportation.
Under the Motor Vehicle Safety Whistleblower Program, any employee or contractor of a motor vehicle manufacturer, part supplier, or dealership may submit information to the government regarding serious violations of federal safety laws. Serious safety violations may include:
- Defects that cause the driver to lose control of the vehicle
- Failure of safety measures such as airbags or brakes
- Ineffective crash safety mechanisms
- Spontaneous fires or explosions
In addition, as the motor vehicle industry advances self-driving cars and other automated control features, the range of potential safety violations is likely to increase.
Whistleblowers whose information results in the government’s collection of over $1 million in monetary sanctions may be eligible for a financial reward equal to 10-30% of the amount recovered. The Department of Transportation takes all reasonable measures to protect the anonymity of whistleblowers. Please contact us directly at firstname.lastname@example.org, if you believe you’ve witnessed any form of motor vehicle safety fraud
Tax fraud and illegal tax avoidance costs the federal and state governments billions of dollars each year. In 2020 alone, the IRS’s criminal enforcement arm identified over $2 billion in federal tax fraud. A failure to pay taxes owed undermines the fair and equitable enforcement of our tax laws and deprives the government of resources needed to fund important public programs.
There are countless ways in which a business or individual can improperly avoid their tax obligations. Some of the most common are:
- Failure to report all sources of taxable income
- Claiming improper deductions or credits
- Engaging in illegal tax shelters
- Failure to forward withheld employee taxes to the IRS
- Failure to pay appropriate taxes on investment activity or cryptocurrency transactionsFailure to properly account for intercompany transfers
- Failure to identify income that is attributable to U.S. business activity
The primary manner through which whistleblowers can report tax fraud is through the IRS Whistleblower Program, which covers underpayments of federal taxes and related penalties and proceeds. Certain states allow for whistleblowers to pursue state tax-related claims through their false claims act statutes or through other statutory or administrative mechanisms.
The IRS Whistleblower Program
In 2006, the IRS Whistleblower Program was established to administer a system that encourages individuals to come forward with information regarding the underpayment of federal taxes by offering financial awards when that information leads to a successful government recovery. Since its creation, the IRS Whistleblower Program has led to the collection of over $6 billion in underpaid taxes, and has made over $1 billion in awards to whistleblowers.
Individuals who follow the procedures of the IRS Whistleblower Program and whose information leads to the recovery of over $2 million in proceeds may be eligible for financial awards equal to 15-30% of the proceeds collected. In order to qualify for a whistleblower award, an individual must present information regarding the underpayment of tax to the IRS Whistleblower Office according to specific procedures. The IRS will take all appropriate measures to protect the anonymity of whistleblowers, and does not personally identify whistleblowers even when making and announcing its whistleblower awards.
Our attorneys have extensive experience representing individuals who submit claims under the IRS Whistleblower Program and working collaboratively with the IRS to facilitate its recovery of underpaid taxes and to obtain awards for our clients. We handle a range of matters involving sophisticated tax issues, such as the U.S. tax liability of international corporate transactions, Ponzi-like tax fraud schemes, and the taxation of complex financial instruments. We will not hesitant to engage tax consultants when expertise regarding a particular aspect of the U.S. Tax Code is called for.
Please contact us directly, at email@example.com, if you believe you’ve witnessed any tax fraud.
Powerful advocates for the common good.
In 2022, the federal government and multiple state governments intervened in this qui tam action commenced by Cohen Milstein on behalf of the whistleblowers against Fresenius Vascular Care, Inc. and affiliated defendants, alleging that they violated the federal and state False Claims Acts by performing and billing Medicare and Medicaid for unnecessary surgical procedures that were not covered by these programs, that subjected patients to health risks, and that defrauded the government and taxpayers of many millions of dollars. The action seeks treble damages and civil penalties.
U.S.A. v. Janssen Biotech, Inc. (D. Mass.): Cohen Milstein represents the plaintiff-relator in a whistleblower/qui tam lawsuit against Janssen Biotech (a subsidiary of Johnson & Johnson), alleging that the manufacturer of the rheumatoid arthritis drugs Remicade and Simponi ARIA violated federal law by engaging in a scheme through which it provided physicians free practice management and infusion business consulting services over an extended period to induce the physicians to purchase Remicade and Simponi ARIA and administer these drugs to patients, including Medicare beneficiaries, via infusions performed in their offices.
On or about June 29, 2006, the Commonwealth of Pennsylvania, Department of Labor and Industry and IBM entered into Contract No. RFP UC 2005-1, for services related to the modernization of the unemployment compensation delivery system in the Commonwealth (the “Contract”), in a project known as the Unemployment Compensation Modernization System (“UCMS”). DLI allowed the […]
On July 16, 2021 the Maryland U.S. Attorney’s Office and the State of Maryland reached a nearly $9.5 million settlement with Shore Health System, Inc. to resolve False Claims Act allegations filed by a whistleblower. Shore Health, a subsidiary of the University of Maryland Medical System that operates two hospitals and several non-hospital outpatient centers located on Maryland’s Eastern Shore, was alleged to have overcharged the Medicare and Maryland Medicaid programs between 2014 and 2018 for services provided to Medicare and dual eligible Medicare and Medicaid beneficiaries.
United States ex rel. O’Connor v. National Spine and Pain Centers, LLC: A qui tam action alleging that pain management practices defrauded the government health care programs by billing for services furnished by physician assistants and nurse practitioners as “incident to” a physician’s service when the services did not qualify as such, and referring patients for unnecessary drug tests. The United States intervened in and settled this action for approximately $3.3 million.
News & INSIghtS
Today’s news, tomorrow’s change.
Medical Company Gave Patients ‘Unnecessary’ Surgeries, Sued: NJ AG
Attorney General James Sues Fresenius Vascular Care for Subjecting Vulnerable Patients to Unnecessary Surgeries
Office of the New York State Attorney General
Preserving Patient Care and Physician Independence in the Age of Private Equity-Owned Healthcare
Cohen Milstein on Medium