• Affordable Care Act: Do I Have a Whistleblower Case if Fraud Publicly Disclosed?
  • July 27, 2012
  • Law Firm: Berger Montague P.C. - Philadelphia Office
  • Do I Have a Whistleblower Case if Fraud Publicly Disclosed?

    Under the Federal False Claims Act (the FCA) a whistleblower or "relator" may still be able to recover even if the fraud has been publicly disclosed.  The FCA defines a limited number of sources which qualify as "public disclosures" which would bar an FCA suit.  However, even if the fraud has already been publicly disclosed, the relator may still recover if s/he qualifies as an "original source" under the FCA.

    The Affordable Care Act: Expanded Opportunities for Whistleblowers

    The passage of The Patient Protection and Affordable Care Act (the Affordable Care Act) in 2010 introduced further amendments to the FCA, including amendments to the public disclosure bar.  The Affordable Care Act provides that a case shall be dismissed if there has been public disclosure unless "opposed by the Government."  Under this version, the government has a 'veto' over the defendant's motion to dismiss on public disclosure grounds.  Additionally, public disclosures are narrowed solely to federal investigations, hearings, reports, and audits.  Consequently, information from state proceedings and private litigation will not qualify as public disclosures unless it was reported in the news media or in a federal proceeding.

    The Original Source Exception to the Public Disclosure Bar

    Even if there has been a public disclosure of the fraudulent conduct, a whistleblower may still recover if s/he is an original source.  Previously this required having "direct and independent" knowledge of the fraud, but now, the Affordable Care Act has eliminated this requirement.  Now, in order to qualify as an original source, the whistleblower must : 1) have (prior to the public disclosure) voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) have knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions (and has voluntarily provided the information before filing).