Georgia Drivers Beware! Don't Let a Wreck End Your Christmas Celebration.

December 16, 2013,

Christmas Tree 1.jpgThis blog entry is about really bad facts. Depressing facts. But maybe, just maybe - facts that will make us take more precautions, drive more slowly, and change how Georgians drive over this Christmas holiday.

I am a Georgia car wreck lawyer, and I am using my blog to talk about how, when and where Christmas holiday accidents happened here in Georgia. An astonishing 25 people died in Christmas holiday car wrecks here in Georgia in 2008. For this entry I am going to talk about how, when and where these Christmas holiday accidents. (If the data seems dated, there is an unfortunate reason for it. The information comes from the Fatality Analysis Reporting System (FARS) database that is maintained by the National Highway and Traffic Safety Administration (NHTSA). The database is invaluable, but it is inevitably behind.)

One common misconception among many Georgians is that unless you live in Atlanta, you probably do not have to worry a great deal about personal injuries or deaths from car wrecks. Unfortunately, the truth is that the rate of fatalities is higher in rural counties than in urban counties, apparently because all that Atlanta traffic slows drivers down.

In order to help Georgians get ready for a safer Christmas, we have got to dispel the notion that car wrecks, personal injuries and deaths from car crashes are things that happen only in Atlanta. In 2008, the Christmas fatal car crashes occurred literally all over the State of Georgia.

Atlanta Metro Area: It is true that ten of the 25 people killed in the auto accidents were killed in wrecks that occurred in or at least near the Atlanta metro area. The wrecks occurred in Cherokee County, Clayton County, Coweta County, DeKalb County, Douglas County, Henry County, and Newton County. A second Cherokee County accident occurred in the city of Clanton. Only one fatal car crash occurred within the Atlanta city limits. A second Douglas County accident occurred in the city limits of Lithia Springs.

Middle/Central Georgia: Although 10 of the fatal car crashes occurred within a 35-mile circumference around downtown Atlanta, the metro area was by no means the only dangerous place for Georgia drivers and pedestrians in Christmas 2008. Three people died in counties in Middle Georgia - one person was killed in a car wreck that occurred in Bibb County, a second person died in a fatal car collision in Montgomery County, and a third deadly car crash happened in the city of Smithville in Sumter County (on the western side of Georgia).

North Georgia: To the northwest of the state, one person was killed in Barrow County. In the northeast corner of the State, Dade County sits at Georgia's border with Alabama and Tennessee. One person died in a Christmas crash in Dade County in 2008. A third accident happened in the northern part of this state, this time in Dawson County, which is toward the middle of the northern end of the state.

South Georgia: Three more people were killed in Georgia crashes on the south side of the State. One person died in Cook County, a second was killed in a car collision in Ware County, and a third person died in an auto crash in the city limits of Folkston in Charlton County.

Coastal Georgia: One person died in a car crash in the city of Pooler, which is in Chatham County. Chatham County sits on Georgia's coast.

Western Georgia: One person was killed in a car crash on the western side of Georgia, in Stewart County, which borders the State of Alabama.

Eastern Georgia: Two different deadly car accidents happened in Augusta in Richmond County. Richmond County is on Georgia's eastern border with South Carolina. A third accident happened in Burke County, also on Georgia's border with South Carolina.

I'm Not Kidding -- Be Careful Over Christmas: Part 3

December 12, 2013,

Christmas ornaments.jpgI don't think I've ever lost my childlike excitement about Christmas. Every year I look forward to family, friends, church, great meals, and lots of fun.

So for me it is hard to even think about a family being devastated by a fatal car wreck around the holidays. But as a car accident lawyer here in Georgia, I see families that have suffered an unimaginable blow right at what should be one of the most wonderful times of the year.

The reality is that every year 10 - 25 people die in car wrecks over the Christmas holiday. Is there anything that we can do to lower that amount? We know that sometimes drivers can avoid accidents by being alert, engaging in defensive driving, slowing down, and not driving DUI.

So what would it take for Georgians to do that this Christmas holiday period? I am hoping a dose of cold, hard reality will make folks remember that every time they get in the car - no matter how exciting the destination, and no matter how many people are in the car - the driver needs to be exceptionally, exceptionally careful.

So here are the facts. They are cold and painful, but hopefully publishing them will help save a life this holiday season. These facts are gleaned from searches of the Fatality Analysis Reporting System "FARS") maintained by the National Highway and Traffic Safety Administration ("NHTSA").

In 2009, eleven people died in ten car accidents around the state of Georgia.

Heart-rendingly, six of the people who died in car crashes died on Christmas Day. Two people died in separate car accidents on I-285. Both accidents occurred on Christmas Day. One of the car wrecks occurred on the stretch of I-285 that runs though Clayton County, and the other collision occurred on a part of I-285 that sits within the DeKalb County limits.

Another person was killed in a car accident in the city of Jesup in Wayne County, on Sunset Blvd.

A person was killed in a car crash that occurred in Norcross, in Gwinnett County, at the intersection of Jimmy Carter Blvd. and Live Oak Parkway.

One person died in Cobb County on Cobb Parkway / SR-3 / Highway 41.

In a Laurens County car crash on I-16, two people lost their lives on Christmas Day.

One person died after a collision that occurred on the day after Christmas, in Douglas County, at the corner of Annewakee Rd. and Oak Place.

On December 27, 2009, three people died in car crashes here in Georgia.
The first died in Catoosa County on SR-151 / Old Alabama Hwy. A second person lost his life in a car crash in Walnut Grove in Walton County on State Road Highway 138. The last person to die for the 2009 Christmas holiday died in McIntosh County on I-95 / US Highway 95.

To me, it's sobering to think of all of the families who got such devastating news over the Christmas holiday. For them, the holiday was turned from dream to nightmare. And for each of the people who died, dozens received serious injuries over the holiday. (That data is not available in the NHTSA FARS database, which by definition only includes wrecks in which at least one person was killed.)

Sobering for you, too? I hope so. So be careful this Christmas season. Drive defensively and slowly. And make sure your family and you have a Merry Christmas!

Georgians -- Need Incentive to Drive Safely this Christmas Holiday? Here's Some.

December 9, 2013,

Christmas candle on tree.jpgChristmas being such a happy season, it is hard to associate it with death or serious personal injuries. But if this year is anything like the most recent statistics available from the National Highway & Traffic Administration, between 10 and 25 people will lose their lives in Georgia car accidents over this upcoming Christmas holiday.

As a Georgia car accident lawyer, I periodically look through the statistics that the National Highway and Traffic Safety Administration (NHTSA) puts out in its FARS database. (FARS stands for Fatality Analysis Reporting System.) I was (unfortunately) not surprised to see that three people were killed in car wrecks on New Year's Eve, but I was surprised to see that 11 people were killed in ten fatal collisions over the Christmas holiday period. In 2008, the number was astronomically higher: 25 people were killed on Georgia roads during the Christmas holiday period.

With so many people traveling over the holiday, the traffic is heavy and drivers may not be as attentive as they should be. People driving anywhere here in Georgia need to be exceptionally careful as they take to the roads for this holiday period.

And please, do not assume that you are "home free" just because you do not live in the Atlanta area. Although most of us tend to associate traffic and big accidents with Atlanta, surprisingly not one of 2009's fatal Christmas accidents occurred within the city limits of Atlanta, or even in Fulton County. Five of the accidents did happen in the Atlanta metro area, in DeKalb County, Cobb County, Douglas County, Clayton County and Gwinnett County.

A full half of the car accidents happened outside the metro Atlanta area, however, and these five car wrecks ranged all over the state. Two people were killed in a car wreck in Laurens County in middle Georgia. One person died in a Christmas car crash in Walton County, which is not far from Atlanta and to its east. A deadly car wreck occurred in Catoosa County in the far north of Georgia, on the Tennessee line. Two fatal auto accidents occurred in southern Georgia, both toward the coast. The first of the two southern Georgia car wrecks happened in Wayne County, which is on the southeast side of Georgia. The second southern Georgia auto collision was in McIntosh County, which is in the state's southern coastal region.

When it tabulates crashes that occur over a "holiday", the National Highway and Traffic Safety Administration includes several days around the "holiday" in its statistics, on the theory that traffic will be heavy throughout that period as people travel. For that reason, in the stats that FARS keeps, only five of the Christmas car wrecks actually occurred on Christmas Day. One occurred on the day after Christmas, and four more on December 27, 2009.

Keep these statistics in mind over the next few days of the Christmas holiday. There is an especial note of tragedy when a family loses a loved one at Christmas. So whether you live in the Atlanta metro area, in middle Georgia, northern Georgia, southern Georgia, or along the Georgia coast, slow down and watch out. And Merry Christmas!

Why Whistleblowers Give Up on Good Cases

December 7, 2013,

Pie chart stairstep.jpgAs a lawyer who represents whistleblowers, I have been appalled at some very unfair criticism levied at False Claims Act cases. Using statistics such as the ones cited by David Krok in a recent article in the American Bar Association's Public Contract Law Journal. In the article, Does Private Enforcement Attract Excessive Litigation? Evidence from the False Claims Act, Krok gathered statistics about how few whistleblower cases succeed if the Government chooses not to get involved in the case. Critics of the False Claim Act have seized upon statistics such as these to argue that most whistleblower suits must be frivolous because they do not succeed. I have been writing a series of legal blog entries about why the criticism is unfair and unfounded.

How the False Claims Act system works: FCA cases are called qui tam cases, because they are initially filed by a private citizen, called a relator, on behalf of the Government. After an investigation period, the Government can elect to intervene in the case, and take it over, or it can refuse to intervene. In the latter case, the relator is allowed to proceed with the case on his own, but without the assistance of the Government. The whistleblower gets a minimally higher percentage of the amount recovered in the case if he proceeds on his own without the Government.

The Critics are Wrong. The critique levied at relators bringing cases fundamentally misunderstands how FCA cases work.

First, on average fewer than 500 False Claims Act cases are filed in the entire United States in a given year, hardly a figure that suggests a wild gold rush by relators.

Second, the critics are missing the point. The real issue is that enormous obstacles face a relator who wants to prosecute the case on his or her own. Unless the courts adjust some draconian rulings made in recent years, or Congress steps in to make new rules, the relator has a difficult time succeeding in these cases.

Third, the statute does not incentivize the relator appropriately. If the Government intervenes in the case, the relator gets 15-25% of the proceeds recovered by the Government. And if the relator prosecutes the case on his or her own, the relator receives only minimally more than he would have gotten if the Government had taken over the case: 25-30% of what the Government collects.

Fourth, the risk of going forward falls heavily on the relator's lawyer. Seldom is the relator able to fund the litigation on his or her own. After all, for the most part the relator is a former employee of the corporation that is being sued - a former employee because he was fired when he tried to get his employer to do the right thing. Instead, the relators' counsel generally must fund the litigation, hiring expensive experts to explain the case to the jury. Given that the return is only minimally higher, many relators have a difficult time finding lawyers who will assume the risk of going forward.

Fifth, often the reason the Government refused to intervene had to do with the amount of damages, not the merits of the case. If the Government's investigation reveals that the damages are not particularly large, the Government may make a financial decision not to go forward with the case. In a very large percentage of the cases of which I am aware, the Government confirmed the fraud, but determined that the damages did not justify the expenditures. In these cases, the Government essentially determines that if the fraud is under a certain level, it is "free" to the defendant, because the cost to the Government of recovering the money is too high. Of course, if the dollars are not large enough for the Government, which gets 75-85% of the case proceeds if it chooses to intervene, a 25-30% share is not likely to entice the relator.

Sixth, because the cases by definition involve mega-corporations with massive government contracts, the corporations have nearly limitless resources to devote to the case. The relator, on the other hand, is usually a single individual - and one who was fired and is out of work, at that. The relator's attorney typically works in a very small firm. The imbalance between the two sides is enormous, and many relators - and their attorneys, if the attorneys have not litigated large cases before -- fear being crushed in the fight.

Why Whistleblowers Can't Win for Losing

December 5, 2013,

Corporate Growth Chart.jpgI am a False Claims Act lawyer, and I am doing a series of articles addressing criticism of the Act. A recent article in the Public Contract Law Journal, published by the American Bar Association, gave grim statistics about the success rate for relators (whistleblowers) in False Claims Act ("FCA") cases where the Government chooses not to intervene in the case. According to author David Krok, by using data he received as a result of the Freedom of Information Act he was able to determine that relators have a 95% chance of winning if the Government chooses to intervene in the case; conversely, they have only a 9% chance of winning if the Government chooses not to intervene. Citing statistics such as those Krok cites in his article, Does Private Enforcement Attract Excessive Litigation? Evidence from the False Claims Act, critics have suggested that these statistics are evidence that relators should not be allowed to prosecute non-intervened cases.

For more about "intervention", see my earlier blog post, Why Whistleblower Cases Seldom Succeed After the Government Declines the Case.

Critics argue that the relators must not be bringing meritorious suits since the relators generally do not succeed when the Government chooses not to intervene, but they are missing a critical point: the impact on the case that occurs simply because the Government refused to intervene.

Three important things happen when the Government does decide to intervene. First, because the Government chose to intervene in the case, courts tend to assume that the case must have merit. Second, the courts tend to give the Government the benefit of the doubt about whether the case is pled sufficiently. And third, the Government usually has sufficient information to plead the case appropriately.

When the Government does not intervene, the opposite occurs. The defendant usually files a motion to dismiss in which the defendant argues that the case must not be any good, because -- after all -- the Government refused to intervene in the case. In my experience, the argument is almost always false; the intervention decision most often is related to dollars and cents, and not to facts. Nonetheless, defendants make the argument precisely because they realize that it likely will resonate with the judge. Since the Government does not put anything in writing about why it chose not to intervene, the relator has little to work with in convincing the court that the Government did not believe the case was unfounded.

Because the court already is skeptical about whether the case is meritorious, the court then looks with a jaundiced eye on the claims, and is much more likely to grant a motion to dismiss as a result.

Third, the relator, who is usually an individual, generally has only a limited amount of information. The defendant typically argues that the fact that the relator's information is limited means that the case should be dismissed because the relator cannot prove every detail of the claim in advance, without any discovery. For example, even when the relator has ironclad proof of the fraud that went on, the defendant typically will claim that the relator is missing some other piece of information, such as copies of the bills that were submitted to the government agency. The argument typically is absurd. Does anyone seriously doubt that a hospital is submitting its claims to Medicare? No hospital could stay in business if it failed to submit the claims. Nonetheless, even where a hospital employee can prove that the hospital was billing for procedures that were never performed, the hospital will argue that the case ought to be dismissed because the employee does not have copies of the bills that went to Medicare.

Or course, the irony of the argument is that jobs are typically segmented enough that the relator who knows about the fraud does not know have access to the billing, and vice versa. Some courts have raised the bar unnecessarily high in this situation. The upshot is that courts dismiss clearly meritorious cases, and the Government never recovers the money stolen from it by fraud.

Georgia Drivers: Be Careful this Christmas Holiday!

December 4, 2013,

Christmas bear at table.jpgI'm an Atlanta car wreck lawyer, and I'm on a one-woman quest to see whether we can get Georgia drivers to slow down and drive more carefully over this Christmas holiday. Over the 2009 Christmas holiday (the latest data available), ten people were killed on Georgia highways over the holiday. The year 2008 was far worse: 25 people were killed in 25 car wrecks across Georgia.

As an auto accident lawyer, I have met with many families who lost a loved one in a wreck, and with people who suffered debilitating personal injuries in a car crash. But of all the things I do in my job, nothing is sadder than meeting with families who lost somebody over a holiday, and - for me - particularly families who lost someone they loved very much during the Christmas holiday.

What if we could change the numbers? What if - by driving defensively and slowing down - we could cut the number of fatal collisions in half - or lower? What an amazing accomplishment!

So as we march up to the holiday, I am going to do several blog entries about how many people die on Georgia roads each Christmas holiday, and about where the accidents happen. My hope is that the information will make Georgians more aware of the fact that driving over Christmas can be very dangerous -- and that it will prompt folks to drive more carefully this season.

I'm going to be using data from the National Highway Traffic Safety Administration (NHTSA), which maintains a database called FARS. The FARS database (the full name is Fatality Accident Reporting System, but since that is a mouthful, for obvious reasons everybody calls it FARS) is a searchable set of facts about accidents in which someone died in one of the fifty U.S. states or in one of the U.S. territories. FARS does not contain data about serious injury accidents unless someone died in the accident. Thus, FARS misses some very serious personal injury car crashes, even ones resulting in paraplegia, quadriplegia, traumatic brain injuries, amputations, broken bones, etc. Still, the database is a one-of-a-kind way to look at the statistics and the trends in serious accidents around the United States.

NHTSA has released FARS data for 2008 and 2009, and I'm going to be talking about the car crash deaths that occurred over the Christmas holidays in those two years. The year 2009 saw ten deaths from Georgia car wrecks, which was bad enough, but in the year 2008, an astonishing 25 people were killed in car accidents in Georgia over the Christmas holidays.

Part of the reason for the difference is the way that NHTSA counts the holiday. NHTSA tracks deaths that occur around the holiday, to account for the fact that people hit the roads in the days before and after the holiday itself, in order to be able to spend Christmas Day itself with their families. In 2009, Christmas fell on a Friday, so NHTSA calculated the "holiday" as covering the 24th, 25th, 26th and 27th. By contrast, in 2008, Christmas fell on a Thursday, so NHTSA kicked off the holiday on the 24th, and ran it through the 28th.

But no matter which year you take, 2008 or 2009, both years saw a tragic number of deaths. So this Christmas season, Georgians -- drive carefully, don't drive under the influence, and drive defensively. Let's see if we can make this Christmas a lot happier for Georgia families!

(Thanks to Wong Mei Teng for the beautiful photo on this post. Mei Teng is a really talented photographer who generously posts free images on stock.xchng.)

Why Whistleblower Cases Seldom Succeed After the Government Declines the Case

December 2, 2013,

Pie Chart.jpgAn article in the American Bar Association's Public Contract Law Journal (p. 241), "Evidence from the False Claims Act: Does Private Enforcement Attract Excessive Litigation", is being cited by critics of the False Claims Act. The gist of the article was no surprise to whistleblower attorneys like me: cases taken over by the Government (called "intervened" cases) almost never lose, and "non-intervened" cases almost never win. What did surprise me, though, was the reaction of critics of the False Claims Act system, who claimed the statistics are evidence that the qui tam system - which allows a relator to file a case in the name of the Government - encourages frivolous cases. These critics fundamentally misunderstand the practical obstacles facing relators who try to prosecute a case on their own.

The Intervention System:
Under the False Claims Act, the whistleblower (called the "relator") brings the lawsuit on behalf of the United States. The United States then is allowed time to investigate the case. When the United States concludes its investigation, or when the time for investigation runs outs, whichever comes first, the United States has a choice to make. It can intervene in the case, which essentially means that the United States takes over the case. The relator remains in the case, but takes a back seat to the United States, which becomes the chief prosecutor of the case. On the other hand, the United States can refuse to intervene in the case. In that case, the relator has the option to continue the case on his or her own, without the help of the United States. The relator also can choose to dismiss the case.

The Statistics: According to the article, when the U.S. intervenes in a case, the United States wins the case 95% of the time. On the other hand, when the United States declines the case and leaves the relator to prosecute it on his or her own, the relator dismisses the case 25% of the time. Fifty percent of the time, a court dismisses the case. Only 22% of the cases go on to trial, and the defendants win somewhat more than half of those cases. In the end, only 9% of the cases where the Government refused to intervene end up resulting in a settlement or judgment for the United States. While the United States intervened in 953 cases, it refused to intervene in 2314 cases, which means that the overall "success rate" was less than 50%.

An Overview of Why the Critics are Wrong:
While the statistics for non-intervened cases are grim for relators, the fact that non-intervened cases tend to be dismissed or lost is emphatically not evidence of an abundance of frivolous claims. Put simply, there are a number of reasons why relators do worse when the Government does not intervene - and those reasons have nothing to do with whether the case was good in the first place. In my next whistleblower blog entry, I will talk about why the critics are wrong to conflate the effectiveness of the False Claims Act with the success of non-intervened cases.

Georgians - Please Drive Carefully this Thanksgiving Holiday Weekend!

November 26, 2013,

Thanksgiving turkey.jpgThis Thanksgiving weekend Georgians will head out to be with families and friends. We'll eat and visit and be grateful for all we have been given in this nation. Some of us, of course, also will shop!

But the sad truth is that some of us here in Georgia may die or be seriously injured in car accidents this very weekend. So I hope, that in the midst of the fun and joy, people here in Georgia will take just a minute to think about the fact that we need to be exceptionally cautious this weekend.

Being an auto accident lawyer, when I had questions about how dangerous Thanksgiving weekend could be in terms of car accidents, I turned to the Fatality Analysis Reporting System maintained by the National Highway and Traffic Safety Administration, or NHTSA. According to what I learned from that database, 13 people died across Georgia in 12 different accidents over the 2009 Thanksgiving holiday weekend.

People were killed in fatal car wrecks all over the State of Georgia, and not simply (or even mostly) in the Atlanta metro area. Two people were killed in deadly car crashes in Macon, and another person died in a Buford auto crash. One person was killed in a Valdosta car accident, and another in a Savannah auto collision. A person was killed in a car crash near Carrollton, and another in a Covington car accident. These fatal car accidents happened not just on the mega interstates, like I-75, I-95, I-475, and I-85, but also on smaller or more local roads, like Glade Farm Rd. in Hall County, Boring Pond Rd. in Lowndes County, Brewton Lovett Rd. in Laurens County, S. Bogan Rd. in the city of Buford in Gwinnett County, and Muse Bridge Rd. in Carroll County.

The large number of deaths from Thanksgiving car accidents was no fluke. In fact, even more people died over the Thanksgiving holiday in 2008. That year, 18 people were killed in car accidents in Georgia. The most dangerous holiday of 2008 was Christmas, when 25 people were killed in 25 different auto crashes. Twenty-one people were killed in Independence Day car collisions over the Fourth of July weekend. Thanksgiving was tied with Labor Day for third deadliest holiday weekend of the year, with each holiday seeing 18 people killed around Georgia.

Over the 2009 Thanksgiving weekend, someone was killed in a car accident here in Georgia every day of that four-day holiday. Surprisingly to me, relatively fewer people were killed on Black Friday, November 27, 2009. In a single, horrific accident, two people died that Friday.

I had thought that the heavy mall and shopping traffic that day would make that one of the most dangerous days of the weekend. However, each of the other days saw even more people killed. Three people were killed in car accidents on Thanksgiving Day, four more were killed on Saturday, November 28, 2009, and another five people lost their lives in fatal traffic crashes on Sunday, November 29, 2009.

Significantly, these figures from NHTSA do not include any of the people who were seriously injured over the Thanksgiving weekend. Even if someone suffered serious personal injuries in a car wreck - a head injury, multiple broken bones, or quadriplegia or paraplegia - the database is limited to car accidents in which someone was killed. Unless someone died in those serious wrecks, then, they were not even in the FARS database.

So when you go visiting and shopping this weekend, remember that you are one of the things for which your relatives and friends are the most thankful - and watch out while you are driving!

DOJ Says Company Faked Background Checks for Government Employees

November 22, 2013,

Rubber Stamp.jpgWell, this certainly makes me feel safer . . . NOT.

DOJ is intervening in a False Claims Act lawsuit against a company accused of failing to do background investigations on people who were applying to work for government agencies. The company, DSIS, was hired to vet thousands of people who had applied for federal jobs or to be government contractors - except that the Department of Justice says sometimes it did not actually bother to do the screening. Two of the employees the company "vetted"? Aaron Alexis, who shot 12 people at the Washington Navy Yard, and Edward Snowden, who is accused of leaking secret government information.

Blake Percival, a former employee of USIS, filed the FCA lawsuit that DOJ has decided to join. As a defense contractor whistleblower, Percival will be entitled to between 15-25% of what the U.S. recovers from USIS as a result of the accusations.

How USIS Cheated, According to DOJ

The Office of Personnel Management and other U.S. agencies outsource background checks to three contractors. USIS is the biggest of the three, and single-handedly completes 2/3 of the security clearance investigations.

I use the term "completes" quite loosely, since according to DOJ and Percival, USIS was achieving its quick results - and raking in wads of cash - by approving employees before it finished checking their backgrounds. OPM paid USIS $1900 for every report it completed before the next-to-last day of the month. If OPM missed that deadline, it only got $1425 for each investigative report.

DOJ says that USIS came up with a computer program that would automatically release the reports even if the company still had work to do to finish the investigation.

Percival worked for USIS as a director of fieldwork services. He says that the company fired him when he refused to tell his employees to dump reports on prospective employees and contractors that they had not finished vetting.

USIS Vetted Snowden and Alexis

Federal officials have said that USIS did not do a sufficient investigation into Snowden's background. The company also cleared contractor Aaron Alexis, who shot 12 people at the Washington Navy Yard this past September. While officials initially said that USIS apparently did do a thorough job when it investigated Alexis, ABC News reports that the company did not even attempt to get a police report from Seattle. The police report described an incident in which Alexis shot out his neighbor's tires in what he himself described as a blackout fueled by anger. The police report concluded that Alexis had anger management problems.

Fraud That Puts Us All at Risk

Percival filed his suit in the Middle District of Alabama, with the office of U.S. Attorney George L. Beck, Jr. USIS has its headquarters in Falls Church, Virginia. Beck put into words why this type of fraud sends a cold shiver down my spine: "The increase in foreign and domestic terrorism places an increased responsibility on our government to ensure that unsuitable individuals are prohibited from government employment."

We are left with this chilling question: who else is out there that USIS failed to investigate? Is there someone sitting in a position of trust on a military installation? Is there someone who landed a job inside an airport? Did someone get cleared to work in customs, "checking" the big containers that are shipped in? The issues may have seemed all financial to USIS, but the fact that these background checks were never done could lead to unfathomable consequences for Americans. The taxpayers were cheated out of money, but with this sort of fraud, the money we lost may be the least of our worries.

Under the False Claims Act, a company is liable for making false claims for payment. The DOJ and Percival allege that USIS made false claims when it demanded payment for doing background checks that it in fact never finished.

This is Only a Good Idea if You Like Paying More for Healthcare

November 19, 2013,

Take the buck money.jpgSecretary of Health and Human Services Kathleen Sebelius announced that the Obama administration will not consider the federal insurance exchange or the subsidies the Government pays to insurance companies to be "federal health care programs."

For most people, the ruling will be a head-scratcher. It's hard to figure how you could argue that the federal insurance exchange is not a "federal health care program."

But whistleblower lawyers like me are disturbed about the decision, because it has an extremely important consequence: it means that the insurance companies on the exchanges don't have to abide by the federal anti-kickback laws.

The anti-kickback statute, found at 42 U.S.C. § 1320a-7b(b), makes it illegal to pay somebody or give them valuable freebies in order to get referrals from them or in order to generate Federal health care program business.

Medicare and Medicaid fraud lawyers like me immediately saw a host of potential problems. Drug companies will argue that now they can give coupons to people who are buying insurance on the federal exchange. The coupons - which of course will only be for the newer, more expensive drugs - will lower the cost of the drugs to patients, but will cost taxpayers more as they will have to buy the more expensive drug.

According to a New York Times article, Strategic Move Exempts Health Law From Broader U.S. Statute, the president of the Pharmaceutical Care Management Association warned that: "The coupons steer consumers away from lower-cost alternatives to more expensive drugs, increasing costs to insurers and to the government."

It is hard to reconcile the new ruling with what HHS has said about the anti-kickback laws in the past. According to Health and Human Services, the purpose of the anti-kickback laws "is to protect the Medicare and Medicaid programs from increased costs and abusive practices resulting from provider decisions that are based on self-interest rather that cost, quality of care or necessity of services."

The New York Times noted that HHS's decision may not be the final word if a federal court rejects HHS's interpretation in a lawsuit filed by a whistleblower under the False Claims Act.

Until a whistleblower steps forward with information about how a company has been defrauding the government through the exchange, we'd better get used to paying more of our tax money toward drugs and medical care.

The federal anti-kickback statutes are similar to, but distinct from, the Stark Law, found at 42 U.S.C. § 1395nn. The Stark Law is aimed at stopping what had become an fairly widespread industry practice, in which physicians referred patients for health services they themselves owned, or in which hospitals paid physicians for patient referrals. The concern, of course, was that an objective doctor might not believe the patient needed the services at all, or might conclude that a different service provider could better meet the needs of the patient. The law prohibits the physician from referring the patient, and also makes it illegal for the health service to bill Medicare for treating a patient who is referred in violation of the law. The hospital and the doctor have to return the overpayments even if they did not intend to violate the law. If the violation was intentional, they may face penalties and even being excluded from the Medicare program.

You Can Have the Medicare Cheats - But Can We Get Our Money Back?

November 15, 2013,

Map North South America.jpgAs a lawyer representing Medicare fraud whistleblowers, I am used to seeing stories about Medicare scams in South Florida. After all, South Florida is the epicenter of Medicare fraud in the U.S. But Jay Weaver of the Miami Herald is reporting that many of these fraudsters are escaping justice. They are fleeing to other countries - with a particularly large number heading to Cuba - taking our taxpayer money with them.
Weaver published an article in the November 2nd Miami Herald, FBI tracking down Medicare fraud fugitives from South Florida. His article explained what everyone in the field of False Claims Act lawsuits knows all too well: South Florida has more Medicare fraud than anywhere else in the country. A staggering 1600 people have been charged with Medicare fraud in federal courts there -- one third of all healthcare cases in the entire United States.

But Weaver also explained that many of the worst perpetrators are escaping justice by hightailing it to other countries -- in particular, to Cuba - before the FBI can nab them. He gives numerous examples.

Brothers Luis and Carlos Benitez, were born in Cuba. They came to the U.S., where they stole a whopping $ 84 million from Medicare through HIV therapy fraud. The brothers took their money and scampered back to Cuba, where they are currently hiding out from U.S. federal authorities.

Juan Carrelero, also born in Cuba, stole $ 9 million by submitting fraudulent charges for HIV therapy supposedly being given to patients. He, too, is a fugitive living in Cuba.

Ramon Fonseco, who also hailed from Cuba, stole $ 30 million from Medicare through HIV therapy fraud. He fled to Venezuela.

Maricel Beatriz Hernandez grabbed $ 5.1 million from Medicare through fraudulent claims that patients were receiving therapy for HIV. A Cuban native, she fled back to her native homeland to escape prosecution.

Another Cuban native, Joan Noalles gathered a cool $ 10.6 million in a scheme involving durable medical equipment (DME) and pharmacy fraud. He is currently a fugitive from the law, although U.S. official do not know where he is hiding.

Emilio Seijo ran a traditional medical equipment fraud scheme. He netted 14.5 million, and fled back to his native Cuba, where he currently lives.

Orlin Tamayo-Quinones used an scheme involving HIV treatments to purloin $ 30 million from Medicare. Originally born in Ecuador, he, too, is hiding out in Cuba.

The FBI has had some successes. It caught Enrique Gonzalez, who had stolen $ 9.9 million through HIV therapy Medicare fraud. Gonzalez was living in Bolivia. When he tried to flee Bolivia for Cuba, federal authorities apprehended him in Peru before he could get to Cuba.

Carmen Kaeren Gonzalez stole $ 8.2 million, also for faked HIV therapy charges. She was originally born in Cuba, and fled back to the country after she was indicted here. Fortunately, authorities were able to arrest her when she came to the Fort Myers area.

Weaver's article covers the genesis of Medicare fraud in South Florida. The earliest fraudulent schemes were relatively simple: criminals stole Social Security numbers from elderly and disabled people who were eligible for Medicare and Medicaid, and stole Medicare license numbers from physicians. The crooks then fabricated claims out of whole cloth, billing for durable medical equipment (like wheelchairs) that weren't needed and were never supplied.

Over time, and thanks in large part to whistleblowers who were willing to report the fraud to the Government, Medicare began to wise up. Of course, as Weaver notes in another article, "Stealing Medicare blind, at a cost of billions," the criminals developed increasingly sophisticated schemes to steal taxpayer funds from Medicare and Medicaid.

U.S. taxpayers cannot afford to continue hemorrhaging dollars to Medicare fraud in Florida or anywhere else. Let's hope whistleblowers will come forward to stop abuse of the program.

But Mom, All the Kids Are Doing It!

November 12, 2013,

Jumping Off Cliff.jpgA hospital system has been caught with its hand in the cookie jar - and it was holding a pretty big cookie. A California health system has agreed to pay California's Department of Insurance a whopping $ 46 million to resolve allegations that it overbilled for anesthesia services.

The claims stem from a 2009 False Claims Act lawsuit filed by a whistleblower against Sutter Health, a company based in Sacramento that has hospitals and facilities all over the North Bay area in California. The whistleblower (also known as a relator) was a billing auditor, Rockville Recovery Associates. Rockville filed suit under California's False Claims Act statute, alleging that the hospital system was triple billing for anesthesia services at its hospitals and facilities. Sutter operates 24 acute-care facilities throughout the northern part of California.

What is it about anesthesia services that makes them such a hotbed for Medicare fraud? I am losing count of how many whistleblower blog entries I have written on anesthesia fraud.

But despite the big payout, the hospital system does not seem particularly remorseful. Neither does the California Hospital Association.

In a press release, Settlement Agreement Reached in Case Involving Anesthesia Billing Methodology, Sutter claimed it "followed the law and hospital industry practice." So why is Sutter paying so much to the State of California? They paid $ 46 million because it was in "the best interests of our charitable assets" to avoid "the significant human and financial resources associated with a lengthy trial."

And far from being outraged Sutter's overbilling, the president and CEO of the California Hospital Association (CHA) expressed his dismay that Sutter was settling. "More than 90 percent of California hospitals", including state hospitals, "bill for anesthesia services in this same manner," he moaned.

Sounds like what every parent in the world has heard: "But Mom, ALL the kids are doing it." And you already know the traditional counter by heart: "What if everyone was jumping off a cliff? Would you do it, too?"

If what Sutter did was wrong, then it doesn't matter whether everyone else was doing it, too. Everybody needs to cut it out, Sutter included. And does anyone seriously believe that Sutter would pay $46 million to settle a case if it really believed that it had been billing the way it was supposed to?

And if CHA really does know that some of its other members are violating the law, too, I would say the CHA has a duty to come forward with that information.

Until then, we will have to hope that other whistleblowers will come forward with information that shows particular hospitals are doing the same thing. If your daughter told you "everybody's doing it," you'd hardly march down to the school and turn your daughter's best friend in - on the assumption she must be the "everybody" who had been reported to you. You'd look pretty crazed if you called the friend's parents to complaint about the friend's behavior, when you did not have one bit of information to make you connect the behavior to that particular friend.

The state and federal governments are in the same position. They cannot march down to the courthouse and start filing suit against every hospital, assuming that the CHA meant that particular hospital was the "everybody" in "everybody's doing it."
In the suit against Sutter, California got its information from Rockville Recovery Associates, which had audited Sutter. According to an article by ABC affiliate News10, Sutter Health anesthesia suit settlement should benefit consumers, Rockville uncovered the triple billing during its audit. The whistleblower it found that the hospital was billing for an outside anesthesiologist, and it also was billing a second - and overlapping charge "for the operating room and a charge under a Code 37x. Anesthesia." The 37x code implied that Sutter had an employee in the room and could charge by the hour, when in fact the services were being performed by the outside anesthesiologist, and already were being billed separately. The audit found that in some cases the hospital system also was billing separately for anesthesia medications (gasses) that were included in the other charges being sent to Medicaid.

GE Subsidiary Pays $6.58 Million After Whistleblower Says It Sold Bad Fuel Tanks

October 21, 2013,

Navy Hornet.jpgThe Department of Justice is reporting that a General Electric Co. will pay $6.58 million to settle a False Claims Act lawsuit stemming from extremely serious allegations by a whistleblower. The whistleblower says that a GE subsidiary made fuel tanks for Navy Hornets that did not meet the Government's specs. In fact, in quality control testing, at least one tank failed.

As a whistleblower lawyer, I don't think allegations get any more serious than that. With an aircraft, of course, just about every part is critical, but it would be hard to think of a part that is more critical than the fuel tank.

According to the DOJ press release, General Electric Aviation Systems (GEAS), a GE subsidiary, had a contract to manufacture fuel tanks for the Department of Defense. The fuel tanks were intended for military aircraft, specifically for the Navy F/A-18 Hornet.
Jeffrey Adler, a former GEAS employee, filed a whistleblower lawsuit under the FCA, informing the Government that the Hornet fuel tanks did not meet contract specifications and were not being subjected to adequate quality control. (In the FCA lingo, Adler is known as a 'relator.')

Continue reading "GE Subsidiary Pays $6.58 Million After Whistleblower Says It Sold Bad Fuel Tanks" »

Doctor Bills for 78 Hours of Procedures in One Day, Indicted for Fraud

October 17, 2013,

Alarm clock.jpgMaybe he was just one heck of a hard worker?

According to an indictment filed against Texas doctor Dennis B. Barson, Jr., M.D., the doctor and his medical clinic administrator, Dario Juarez, fraudulently collected $2.1 million in payments from Medicare - in under two months! Barson actually claimed to have seen 156 patients in one, single day - July 13, 2009. On another 13 days during the two-month period, he claimed he saw more than 100 patients per day.

As a False Claims Act lawyer who represents whistleblowers, I just shake my head. I know that for every doctor the federal government catches, dozens, probably hundreds, get off scot free because the federal government never finds out about the fraud.

With Dr. Barsen, the federal government caught on because the numbers just didn't add up. Dr. Barsen literally could not have seen as many patients as he claimed he had treated.

In theory, Dr. Barsen could have seen 156 patients on July 13th, if he had worked a solid, non-stop, 12 hours. Sure, he would have had to skip lunch, and eschew all breaks, even for the bathroom. And yes, he would have had only 4.6 minutes to spend with each of his patients. Probably his patients would have had some caustic things to say about his rushed bedside manner. Still, it would have been physically possible for Dr. Barsen to "lavish" 4.6 minutes on 156 patients in one day.

So Dr. Barson might have gotten away with his claims had he been billing for routine office procedures. But in this case, Dr. Barsen was billing Medicare for performing rectal sensation tests and electromyogram studies of the anal or urethral sphincter. According to medical-dictionary, each electromyogram procedure takes between 30 and 60 minutes. So Dr. Barson would have had to work 78 straight hours to cram in the 156 rectal sensation and electromyogram studies he claimed he performed in just 24 hours.

The government was not clear as to what tipped it off to the fraud, saying only that "the criminal charges are the result of a joint investigation" by the FBI, Department of Health and Human Services, and the Texas Medicaid Fraud Control Unit.

Dr. Barson has a medical practice in Houston, Texas. The indictment says that he billed for procedures performed on 429 patients, but he in fact did not perform the "rectal sensation tests and electromyogram (EMG) studies of the anal or urethral sphincter" which he claimed he was performing.

Unlike Dr. Barson, according to the indictment Juarez actually was seeing patients. The problem was that Juarez was the office administrator, and only pretended to be a doctor or a physician's assistant. He had no medical training, yet actually saw and treated patients. Juarez is currently in jail for practicing medicine without a license.

In addition to being just plain wrong, left unchecked, this kind of fraud will absolutely break the Medicare system. Yet another reason why we need whistleblowers and the False Claims Act - to root out this sort of behavior before it crushes the U.S. taxpayers. The False Claims Act specifically addresses fraud in which someone "knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval" or uses "a false record or statement material to a false or fraudulent claim." If doctors represent that they have performed procedures they did not perform, and create medical records to support those claims, clearly they are defrauding the government. Whistleblowers who report the fraud help protect the entire Medicare system. In order to incentivize the whistleblowers, federal law allows a whistleblower to collect between 15% and 30% of the amount recovered by the United States after it learns of the fraud. The whistleblower must file an appropriate lawsuit, following the requirements set out in 31 U.S.C. § 3729, et seq.

Alabama Company Pays Amid Allegations It Faked a Minority-Owned Company

October 14, 2013,

Dreamcatcher.jpgA growing number of False Claims Act cases are holding companies accountable when they get contracts by fraudulently pretending to be minority-owned or woman-owned. In one recent case, an Alabama company wound up paying the Government $1,150,000 after a whistleblower reported that the company was only pretending to hire a Native American-owned company.

The whistleblower's lawyers filed suit alleging that Caddell Construction, an Alabama corporation, had a contract with the Army Corps during the period between 2003 and 2005. Under the contract, Caddell was to build barracks at two army bases in Fort Bragg, N.C. and Fort Campbell, Ky.

As part of the contract, Caddell agreed to hire and mentor a Native American-owned company. The contractual provision was set up under programs run by the Department of Defense, the Mentor-Protégé and Indian Incentive Programs. Caddell claimed it was entitled to payment because it had hired and mentored a Native American-owned company called Mountain Chief. A whistleblower, however, reported that Mountain Chief was not a real company; it had been set up solely to allow Caddell to claim it was using a Native American-owned company. In fact, the whistleblower's lawyers explained, Mountain Chief was not actually doing any work. It had no employees at all who were working on the project.

In the press release from the Department of Justice, the Government stated that: "Mountain Chief allegedly was merely a pass-through entity used by Caddell to claim payments under the two programs, and didn't perform the work or receive the mentoring services for which Caddell received payment."

In addition to pursuing the False Claims Act civil case, the Government also indicted two former employees of Caddell for making the false claims. Mark Hill, the company's director of business development, and Daniel Chattin, company president, were both indicted in federal court in the Middle District of Alabama. The company avoided prosecution itself by agreeing to pay $2,000,000 and cooperate in the criminal prosecutions.

A Principal Deputy Assistant Attorney General for the Civil Division of the Department of Justice explained that when a company falsely claims that it hired a minority-owned business, it "subvert[s] important government programs." Indeed, if the Government will not enforce these cases, the government programs might as well be shut down, as businesses will be free to ignore provisions such as the one promoting involvement of Native American businesses.

The Department of Defense began its Mentor-Protégé Program in 1991 in order to assist small, disadvantaged businesses (SDB). The program is designed to encourage larger companies to partner with and mentor smaller companies. The smaller company must qualify as a Small Disadvantaged Business under § 8(d)(3)(C) of the Small Business Act, found at 15 U.S.C. § 637(D)(3)(C), or meet similar criteria for businesses owned by Indian tribes, Native Hawaiians, the severely disabled, women, service-disabled veterans, or HUBZone-qualified businesses. For its part, the mentor company receives direct reimbursement for its efforts and/or multiplied credit toward the SDB subcontracting goal set out in the company's contract with the U.S.

The Indian Incentive Plan is a program begun by Congress. Under the program, a contractor receives a 5% rebate for work subcontracted to, or items bought from, an Indian-Owned Economic Enterprise or Indian Organization.