Unfortunately, there is no telling how long a government investigation into healthcare fraud will take. So many variables factor into how long a case might take that it is impossible to predict, even for experienced healthcare fraud attorneys like us.
The Ballpark Answer
When pressed, we find that a straightforward case may be intervened and settled after approximately 2-3 years, while large or complicated matters may take longer. Of course, if a case is determined to not be viable that may occur in a far shorter period of time.
If your reaction is shock and dismay at how long these cases take, let’s discuss further why this is so.
The initial seal period is for 60 days, but unless your case has zero merit, the government is certain to seek an extension. Usually, it requests a six-month extension to continue its investigation. It then seeks extension after extension until it is either ready to make a decision or the court decides that it is taking too long (in which case, the decision is likely to be to not intervene in the case).
Good Cases Aren’t Open-and-Shut
Good cases can often take a very long time to investigate. Mountains of evidence may be produced, all of which needs to be processed and reviewed. Witnesses are interviewed and hostile witnesses are deposed. Statistical analyses are necessary when cases have too many individual instances of fraud to bring to a jury.
Even seemingly simple cases can require a file-by-file review to determine which patients were subject to the fraud and which were not. It is not enough to say that fraud occurred generally, but rather, the government must prove exactly when, where, and how it occurred, and to what extent. There is much to do, and the government wants to dot its I’s and cross its T’s before the case is unsealed.
If the government concludes its investigation and intervenes, there is no telling how long a settlement will take, if there is to be a settlement.
First, the government must disclose the existence of the case with the defendants. Remember, although the whistleblower and government have been tirelessly working on this case for years, because of the federal seal, it is only once the investigation is complete that defendants often learn they are being investigated in the first place.
Enter the Defendant
Once the defendant wraps its head around the fact that it is the subject of a major lawsuit and complex government investigation, it must retain counsel, review the allegations, and prepare its defense. The government wants to hear the defendants’ justifications now, not later, and sometimes it turns out the defendant had a very good – and legal – reason for doing what it did. This process can take many months.
If the government is unconvinced, a defendant may decide to settle. If that happens, that process can take many months as well, as the parties hash out not only the exact dollar amount to be returned to the federal fisc but also many details of the settlement, such as the timing of payments, release language, what conduct is covered by the settlement, down to what part of the settlement might be tax-deductible.
If a defendant does not have enough money to pay back the government what it thinks it should settle for, it can request an “ability to pay analysis.” This is yet another lengthy process, and discussions are essentially shut down while the defendant gathers its financial information and prepares sworn affidavits as to its solvency. This data is then processed by the Department of Justice, who comes back with a number that it believes the defendant can pay, often in installments over many years.
Often, the affected agency requires something called a Corporate Integrity Agreement to ensure that the defendant does not continue to commit fraud. In the case of Medicare fraud, for example, the Department of Health and Human Services may request annual audits, training, license suspensions, and other requirements as a condition of settlement. This negotiation frequently takes longer than the settlement itself, as Corporate Integrity Agreements can be expensive and burdensome.
If the case is litigated, there is no telling how long that will take, either. Certain motions – which are routinely filed in False Claims Act cases – can take months for the court to rule on, all the while the litigation is at a standstill.
Needless to say, litigating a False Claims Act case to successful completion is likely to take years, although a settlement could occur at any point in the process.
Whistleblower Negotiations
Once the settlement or judgment is complete, the whistleblower still must negotiate a relator’s share with the government. As discussed on our page “How are Medicare whistleblower rewards paid?”, relators are generally entitled to between 15 and 25%
for an intervened case, and between 25% and 30% for a declined case.
If the whistleblower can reach an agreement with the government, then it is just a matter of processing the payment. If not, then the parties must go to court and litigate the issue.
A similar problem occurs if there are multiple cases alleging similar facts. Under the False Claims Act, only the “first-to-file” a certain claim is entitled to an award. But whether a certain relator is first-to-file is not always obvious. Did he name the same defendants? All the states involved in the settlement? Are the claims all the same? It is rare that cases perfectly overlap so that the answer is clear. Thus, here too, the parties must either settle their differences or let the court decide.
Unfortunately, litigating first-to-file issues can easily tie the money up for months, if not years, as the court is in no rush to resolve these questions and the government is unwilling to pay even a dime until it knows who is entitled to the money.
Experienced Counsel Can Help
Fortunately, not all cases are subject to the doom and gloom discussed above. Some cases may be fairly simple and settled in short order.
But the reality is that False Claims Act cases are not the way for a quick payday. Success is more often the result of many years of hard work by knowledgeable whistleblowers and experienced counsel committed to representing your interests for the long haul.
If you’re a potential whistleblower in need of an experienced False Claims Act attorney to help the process along, contact Bracker & Marcus LLC today.