Whistleblower Tips

Beware of "Speaker Fees" and other Kickbacks

Speaker programs are a widely used marketing tool in the pharmaceutical business. Drug makers enlist doctors to give paid talks about the benefits of a product to other potential prescribers, at a clinic or over dinner in a private room at a restaurant. But Krane and some fellow rookie reps were already getting a clear message from Burlakoff, she said, that his idea of a speaker program was something else, and they were concerned: It sounded a lot like a bribery scheme.

One of the most common varieties of False Claims Act cases, resulting in some of the biggest judgments, are kickback cases. Doctors, pharmacies, hospitals, etc. are not allowed to take gifts, including cash, that may influence their medical judgment. Patients are entitled to unbiased advice. But, for example, if a doctor gets a cut every time he sends a patient to John Doe Hospital, he is probably going to direct his patients to that hospital.

The ostensible purpose of a pharma-speaker program, as Krane understood it, was to spread the word about the drug through peer-to-peer marketing. With “honorariums” changing hands, the potential for a subtle corruption is clear, but Burlakoff was not subtle. He told Krane, she said, that the real target was not the audience but the speaker himself, who would keep getting paid to do programs if and only if he showed loyalty to Subsys. It was a quid pro quo or, as the Department of Justice later called it, a kickback. “He boiled it right down,” Krane recalled: We pay doctors to write scripts. That’s what the speaker program is.

If a doctor is receiving benefits from a pharmaceutical company, he is more likely to prescribe drugs from that company, even if the patient doesn't need them. And if the doctor is seen as prescribing more drugs, then the pharmaceutical company may be inclined to give even more benefits. It is this type of kickback that has not only defrauded Medicare and Medicaid out of millions of dollars, but, as this investigative report from Evan Hughes of the New York Times delves into, it has helped to fuel pill mills and the national opioid crisis.

The speaker events themselves were often a sham, as top prescribers and reps have admitted in court. Frequently, they consisted of a nice dinner with the sales rep and perhaps the doctor’s support staff and friends, but no other licensed prescriber in attendance to learn about the drug. One doctor did cocaine in the bathroom of a New York City restaurant at his own event, according to a federal indictment. Some prescribers were paid four figures to “speak” to an audience of zero.

If you are in the medical field, be on the lookout for such arrangements that appear to pay a medical practitioner something for nothing, or that are out of whack with what you would expect for the service being provided, especially if the payments are based on volume (e.g., the more referrals/prescriptions, the bigger the payment). These agreements frequently violate federal Stark and Anti-Kickback laws and can be the basis of a False Claims Act case.

When do I need counsel?

Of course, since you are asking a lawyer when you need a lawyer, I am going to tell you “as soon as possible”! But really, there are many reasons why you will want to find a knowledgeable, experienced FCA attorney very early in the process if you think you are witnessing fraud against the government.

First, it’s a good idea to have a free consultation with us and make sure that you are correct in what you suspect. Sometimes, there are things companies do wrong that, although against the rules, don’t really belong in an FCA case. We can help you sort out what is an FCA issue, what should be taken to a different sort of attorney, or maybe reported to a hotline.

Second, assuming that you have an FCA issue, we will want to advise you about what evidence you may want to gather to prove your case.  Making such decisions on your own is fraught with peril, and could even land you with criminal or civil liability if you make the wrong move. For example, there may be documents you want to bring, but there are important guidelines about what you can and cannot bring to show us. This is a complicated issue, and we very much encourage you to speak with us before you make any decisions about what to take. Similarly, some would-be relators contemplate making a recording of the workplace. Again, this is not a simple issue and we would prefer to have the opportunity to discuss it with you before you make any actual recordings.

Third, by the time they are contemplating an FCA action, many relators are on the verge of being let go. If they are terminated, there are important steps you will want to take to preserve your rights. You may also be asked to sign a release in order to receive a severance package – the issue of releases is very complex, varies from district to district, and can result in our being unable to help you. Do not sign away any of your rights without consulting an experienced qui tam attorney!

For all of these reasons and more, if you think you are a witness to fraud against the government at any level, we encourage you to take advantage of our free consultations.

Relator’s Interview Part V: FAQs

How do I prepare?

We will have a preparation session with you, telephonically or in person, where we will review the type of things discussed in this blog series (but specifically focused on your case). Other than that, you may want to review your complaint and disclosure statement. That’s about it – this isn’t a memory test! Just get a good night’s sleep and come in ready to respond as fully as possible.

Do I bring anything?

Nope. In your prep session, we will go over the documents you will be reviewing with the team, and I will bring a copy for your reference, but you need not bring a thing. For some that expect to go longer, for one reason or another, I may suggest you pack a snack. That’s about it.

Who will come with me?

The Relator’s Interview is one of those rare moments when a non-executive, non-celebrity gets to say “Pardon me, I want to consult with my attorney” any time that you like! We will be there with you the whole time – in fact, it would be improper for the team to talk to you without us around.

You will not be able to bring others with you – like spouses, parents, etc. – because of the federal seal. If you need to arrange a ride, let us know so we can strategize how not to leave someone stranded during an all-day interview that they are not allowed to know anything about!

What if I don’t know an answer?

This is an easy one: just say so! As we mentioned before, this is NOT a memory test. There’s no penalty for not knowing the answer – in fact, the team will respect you for not being embarrassed when you are not sure of something and overstating your knowledge.

In a similar vein, if you are not sure what the answer is, but you have a reasonable idea, just be sure that you are clear that you are speculating. This is not a situation where the team will not want to hear your ideas – just be clear that you are guessing and why you have arrived at your “best answer” and don’t imply that you are sharing facts rather than guesses. This goes a long way to making you credible to the team.

Do you have another question you would like to see answered here? Email Julie@FCACounsel.com with your ideas! When we collect enough, we will do another installment.

Relator’s Interview Part IV: What happens?

Think of the Relator’s Interview as a big job interview, the kind with a whole panel of people who will ask questions.

Most of the time, there will be one designated Asker-of-Questions. That person is usually the AUSA, but sometimes is an investigator, depending on who has the most experience with your type of case, who has the most time to prepare, and so on. That person will start by introducing everyone and who they represent. S/he will then spend some time explaining to you the “rules of the road” for a relator – don’t investigate on your own, the existence of the seal, and so on. (A good, experienced qui tam attorney will have long ago made you aware of these issues.)

At that point, you will be asked questions about your work history and credentials. Remember, during the whole interview, one goal is to determine whether you will make a good witness. Don’t sell yourself short, but don’t ever overreach, either!

Next, you will be taken through the Complaint, often page by page, to make sure that the Government understands exactly what is meant by what is written, as well as the basis for the things you have said and any corroborating evidence. If we have produced documents on your behalf, you may be asked to explain them to the team. Sometimes you will be asked questions about the witnesses we have suggested – how they might react to being approached, whether they are friendly, and so on.

Throughout the interview, you may be asked to follow up on questions or issues. No worries, we will keep a list and ensure that everything is completed.

With all of this, you can see why it is hard to predict how long a Relator’s Interview will last. The more prior experience you have, the longer your complaint, the more complicated the fraud, and the more documents you have produced will all affect the length of time you are there. Normally, we are done before a late lunch, but I usually tell my relators to take a whole day off of work, because even if you get out quite early, you are going to be pretty tired after being in the hot seat all day!

Stay tuned for the next installment of this series, Part V: Frequently Asked Questions

Relator’s Interview Part III: Who attends?

As we mentioned in Part I of this series, the Government will staff your case after it is served. There will be an assigned Department of Justice (“DOJ”) attorney from Washington D.C. (“Main Justice”) assigned to your case, although he or she may have limited involvement. There will be an Assistant United States Attorney (“AUSA”) from the United States Attorney’s Office (“USAO”), and the local USAO may have its own staff investigators who may attend the interview.

There may also be an attorney and/or an investigator from whichever agency (or agencies) that have been ripped off. For instance, if you allege a doctor’s office has falsely billed Medicare and Medicaid, there may be an investigator from the Department of Health and Human Services (“DHHS”) and perhaps an attorney or investigator from the Center for Medicare/Medicaid Services (“CMS”). If, on the other hand, your case involves manufacturing of helicopters for the armed forces, then depending on how widely the equipment is distributed, we may have alphabet soup, with representatives from the Department of Defense Office of Inspector General (“DoD OIG”), Army Office of Inspector General (“Army OIG”), Navy Inspector General (“Navy IG”) and the Air Force Office of Special Investigations (“AF-OSI”).

Depending on the district, your interview may be attended by FBI agents or investigators from the criminal branches of the above agencies. This may mean that the government is considering a criminal action in your case – but for some districts, a criminal division AUSA and/or FBI agent attend most or all Relator’s interviews, just to be sure that there is no overlap with other open investigations and to say whether criminal has any interest in pursuing the matter.

Finally, if you have a Medicaid case, there will usually be a representative from the National Association of Medicaid Fraud Control Units (“NAMFCU”). NAMFCU coordinates the efforts for all of the states involved in the case, and may have their own investigators present.

With all of that, some Relator’s interviews are small – the AUSA, the relator, and the relator’s counsel. On the other end of the spectrum, some feel like conferences; I have attended a few that had more than a dozen investigators and attorney representatives. Most are somewhere in the middle, with an AUSA, an investigator or two, a DOJ representative (often on the telephone), a NAMFCU representative, and Relator’s team.

With literally hundreds of Relator’s interviews under our belt, Bracker & Marcus are in a good position to have you well prepared for talking to all of these folks!

Stay tuned for the next installment of this series, Part IV: What happens at the Relator’s Interview?