In a recent ruling that has implications for whistleblowers filing under the False Claims Act, the Ninth Circuit Court of Appeals reversed a lower court decision. The ruling should lead to more whistleblowers filing qui tam lawsuits.
In this case, United States ex rel. Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit clarified the requirements for a private party to be considered an original source of information. If a whistleblower qualifies as an original source of information, it is considered an exception to the public disclosure bar that prevents qui tam suits in instances where the fraud has already been publicly disclosed.
Previously, a whistleblower has always had to meet certain requirements to qualify as an original source; namely, that the relator has direct and independent knowledge of the publicly-disclosed information, and that the relator provided that information to the government before filing suit. Since 1992, the Ninth Circuit also had imposed a third requirement, that the whistleblower plaintiff had a hand in the public disclosure of allegations. The recent decision in Hartpence means that a whistleblower would not have to satisfy this third requirement to be considered an original source of information and thereby considered an exception to the public disclosure bar.
With this ruling, the Ninth Circuit has essentially declared a two-part public disclosure bar test, although this only applies to cases filed prior to 2010. Removing the third requirement removes a key barrier to whistleblowers, which will likely lead to more qui tam lawsuits being filed. In this particular case, two former employees of Kinetic Concepts alleged that the company was committing Medicare fraud by improperly coding claims.
Evans Law Firm, Inc. handles whistleblower and qui tam/False Claims Act lawsuits, including Medicare fraud suits. If you have a potential whistleblower claim, please contact Evans Law Firm, Inc. at 415-441-8669 or via email at firstname.lastname@example.org.