It’s a fair question, and it deserves a straight answer: no, your employer cannot lawfully fire you for reporting suspected health care fraud. But “unlawful” and “impossible” aren’t the same thing, and the protection you actually have depends on which law applies, how you reported, and how quickly you act if retaliation happens. Here’s how the pieces fit together.

The Federal Layer: The False Claims Act

Most health care fraud involving government money — Medicare, Medicaid, TRICARE — falls under the federal False Claims Act (31 U.S.C. §§ 3729–3733). The FCA does two distinct things for an employee in your position:

• It lets you sue on the government’s behalf. Through a qui tam action, you can file a confidential lawsuit alleging that your employer defrauded a federal program, potentially recovering a share of whatever the government collects.
• It protects you if you’re punished for it. Under 31 U.S.C. § 3730(h), the FCA separately prohibits an employer from firing, demoting, suspending, threatening, harassing, or otherwise discriminating against you because of lawful acts done in furtherance of an FCA case — including internal reporting, investigating, or refusing to participate in the fraud.

Importantly, this retaliation protection does not require that you’ve filed a qui tam lawsuit yet. Raising the concern internally, or being in the process of investigating it, can be enough to trigger protection.

The Michigan Layer: Three Overlapping Statutes

Michigan doesn’t rely on federal law alone. Depending on what you reported and to whom, up to three state statutes may apply:

1. The Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. This is Michigan’s general-purpose whistleblower law. It prohibits an employer from discharging, threatening, or discriminating against an employee for reporting — or being about to report — a suspected violation of state, local, or federal law to a public body, or for participating in a related investigation or hearing. It applies to both public and private employers, and it isn’t limited to health care, but Medicare and Medicaid fraud clearly qualify.

2. The Michigan Medicaid False Claims Act, MCL 400.601 et seq. This is Michigan’s own qui tam statute, mirroring the federal FCA but focused specifically on fraud against the state’s Medicaid program. It allows whistleblowers to bring suit and recover a share of any judgment or settlement, and it independently prohibits retaliation against employees who bring or assist such a claim.

3. The Health Facility Whistleblower Protection Act. This narrower statute applies specifically to employees of hospitals, nursing homes, and other health facilities, and provides protection and remedies for reporting patient-safety concerns or violations of care standards — useful if your report touched on quality-of-care issues alongside billing fraud.

Because these statutes overlap rather than replace one another, a single act of retaliation can sometimes support claims under more than one of them — which matters, because they don’t share deadlines or remedies.

The Deadline That Catches People Off Guard

This is the detail that most often costs Michigan whistleblowers their case: under the WPA, you generally have only 90 days from the date of the retaliatory act to file suit. That clock starts when you’re fired, demoted, or otherwise retaliated against — not from when you made your original report. Miss that window, and the WPA claim is generally gone for good, even if the retaliation was obvious and the underlying fraud report was accurate.

Federal FCA retaliation claims and Michigan Medicaid False Claims Act claims run on separate, generally longer timelines. That’s exactly why it’s worth identifying every statute that could apply to your situation early, rather than assuming the shortest deadline is your only one.

What You Can Recover

If a WPA claim succeeds, a court can order some combination of:

• Reinstatement, with the seniority you would have had absent the retaliation
• Back pay and restored fringe benefits
• Actual damages
• Costs and reasonable attorney fees, at the court’s discretion

FCA retaliation claims under § 3730(h) go further, providing for reinstatement, two times back pay, interest, and litigation costs — a meaningful difference when lost income is substantial.

What You Should Be Doing Now

Whether you’ve already reported or are still deciding whether to, whistleblowers who protect their position best tend to:

• Document contemporaneously. Write down what you observed, when, and who you told — as it happens, not reconstructed later from memory.
• Know who counts as a “public body.” The WPA generally requires that a report went to a public body — law enforcement, a regulatory agency, or in some cases an internal compliance channel — not just a complaint to a coworker.
• Keep your job performance clean. Retaliation claims often turn on timing and pretext. Don’t hand an employer an unrelated, legitimate reason to point to.
• Act immediately if retaliation occurs. Given the WPA’s 90-day window, don’t wait to see how things play out before consulting an attorney.
• Ask before you speak, not after. If your situation also involves a filed qui tam action, separate confidentiality rules apply during the seal period — a topic worth discussing with counsel before you’re put on the spot.

Talk to a Michigan Health Care Fraud Whistleblower Attorney

Retaliation cases are won or lost on timing and documentation, and the overlapping deadlines across federal and Michigan law make it easy to lose a valid claim simply by waiting too long to act. At Szura & Delonis, PLC, we advise Michigan health care employees on their rights under the False Claims Act, the Michigan Whistleblowers’ Protection Act, and the Michigan Medicaid False Claims Act, drawing on the same health care regulatory background we use to counsel providers on Medicare and Medicaid compliance.

If you believe you’ve faced retaliation for reporting suspected health care fraud, a confidential conversation with our firm costs nothing and creates no obligation. Learn more about our Qui Tam and False Claims Act practice, or call us directly to discuss your situation.

Phone: (248) 716-3600

Email: admin@szuradelonis.com

Address: 29777 Telegraph Rd #2401, Southfield, MI 48034

This article is provided for general informational purposes only and does not constitute legal advice. Whistleblower and retaliation claims are highly fact-specific, and the deadlines described above are strictly enforced. If you believe you’ve experienced retaliation for reporting suspected health care fraud, consult an attorney about your specific situation before taking any action.

What the Seal Actually Is

Under the False Claims Act, every qui tam complaint is filed under seal, meaning it is not served on the defendant and is not part of the public court record. This isn’t optional or something your attorney requests — it’s built into the statute itself (31 U.S.C. § 3730(b)(2)). The moment your complaint is filed, the court file is sealed, and it stays that way while the government decides what to do with your case.

Alongside the complaint, your attorney also submits a written disclosure of substantially all material evidence to the U.S. Department of Justice — essentially, a roadmap of the fraud, showing the government exactly what you know and how you know it. That disclosure statement is not filed with the court and is not part of the seal itself, but it’s what the government actually reads and investigates during this period.

Why the Seal Exists

The seal serves two purposes, and both matter to you directly:

• It gives the government room to investigate quietly. Health care fraud investigations often involve subpoenas, witness interviews, data analysis, and coordination between the DOJ, the U.S. Attorney’s Office, and agencies like HHS-OIG or the FBI. None of that works well if the target of the investigation already knows a lawsuit is pending and can start destroying records or coaching witnesses.
• It protects you. While the case is under seal, the defendant doesn’t know you’ve filed — or in many cases, doesn’t know a case exists at all. That confidentiality buys the government time to build a case before anyone has a reason to retaliate against you specifically because of the lawsuit.

How Long Does the Seal Last?

The statute sets an initial seal period of 60 days. In practice, almost no case actually resolves in 60 days. Health care fraud investigations are document-intensive and often span multiple providers, billing systems, and years of claims data. It is routine — not a red flag — for the government to request extensions of the seal, sometimes repeatedly, while the investigation continues. Seal periods lasting one to three years are common in complex Medicare and Medicaid fraud cases; some run longer.

During this time, your attorney will typically stay in contact with the assigned Assistant U.S. Attorney or DOJ trial attorney, respond to follow-up questions, help identify additional witnesses or documents, and monitor the case for developments — even though, from the outside, it looks like nothing is happening.

What You Cannot Do While the Case Is Sealed

This is the part that catches whistleblowers off guard, and it deserves to be said plainly: the seal binds you too.

While your case is under seal, you generally cannot:

• Tell your employer, coworkers, or the defendant that you’ve filed a lawsuit
• Discuss the existence or contents of the complaint with the media
• Post about the case, even vaguely, on social media
• Share the disclosure statement or complaint with anyone outside your legal team and the government

Violating the seal isn’t a technical foot-fault. Courts have dismissed qui tam cases, denied relator’s share awards, or otherwise sanctioned relators for seal violations — even when the underlying fraud allegations were accurate. If you’re unsure whether something is safe to say, the answer is to ask your attorney first, not after.

Importantly, staying quiet about the lawsuit does not mean you lose your legal protections. The False Claims Act’s anti-retaliation provisions (31 U.S.C. § 3730(h)) still protect you if your employer takes adverse action against you for activity connected to reporting suspected fraud, separate from the sealed complaint itself. That distinction — what you can discuss internally about the underlying concerns versus what you must keep confidential about the litigation — is something to walk through carefully with your attorney before the seal period begins, not after a question puts you on the spot.

What Happens When the Seal Ends

Eventually, the government reaches a decision, and one of three things happens:

1. The government intervenes. The DOJ decides to take over prosecution of the case, either in whole or in part. This is generally the outcome relators hope for — it means the government is committing its own resources and litigation power to the case, and historically, intervened cases recover far more often than non-intervened ones.

2. The government declines to intervene. This does not mean the case is dead. Declination is common, and it simply means the government is stepping back and allowing the relator to prosecute the case independently, with private counsel, under the False Claims Act’s qui tam provisions. Many declined cases still go on to significant recoveries.

3. The case is voluntarily dismissed or settled before either of the above formally occurs, sometimes as part of resolving the investigation.

Once the seal is lifted, the complaint becomes part of the public record, the defendant is served, and the litigation moves forward in the open — either with the government leading or with your attorney litigating on your behalf.

What You Should Be Doing During the Seal Period

The seal period can feel like waiting in the dark, but it’s not a passive time. Whistleblowers who protect their cases best during this stretch typically:

• Keep documenting anything relevant that continues to happen at work, without discussing the lawsuit itself
• Preserve — but do not remove or copy improperly — any records that support their knowledge of the fraud
• Route any contact from investigators, coworkers asking questions, or media inquiries through their attorney
• Continue normal job performance and avoid any appearance of retaliatory conduct toward the employer
• Check in periodically with counsel rather than assuming silence means the case has stalled

Talk to a Michigan Qui Tam Attorney

The seal period is often the longest and least understood phase of a qui tam case, but it’s also where careful handling matters most — a single misstep in confidentiality can put months or years of investigation at risk. At Szura & Delonis, PLC, we guide Michigan whistleblowers through every stage of the False Claims Act process, from the initial disclosure statement through the seal period and beyond, drawing on the same health care regulatory background we use to advise providers on Medicare and Medicaid compliance.

If you believe you’ve witnessed Medicare, Medicaid, or other government fraud, a confidential conversation with our firm costs nothing and creates no obligation. Learn more about our Qui Tam and False Claims Act practice, or call us directly to discuss your situation.

Phone: (248) 716-3600

Email: admin@szuradelonis.com

Address: 29777 Telegraph Rd #2401, Southfield, MI 48034

This article is provided for general informational purposes only and does not constitute legal advice. The handling of a sealed qui tam complaint is highly fact-specific and governed by strict confidentiality requirements. If you believe you have information about health care fraud, consult an attorney about your specific situation before taking any action.

Two federal laws often get invoked in health care fraud cases, and they get confused constantly as well. The Stark Law and the Anti-Kickback Statute (AKS) both regulate financial relationships between physicians and the people or entities they refer patients to — but they work differently, require different proof, and carry different consequences. If you’re a practice administrator, biller, compliance officer, or physician who has noticed a compensation arrangement, lease, or referral pattern that feels off, understanding which statute you’re actually looking at matters, because it changes what has to be proven and what your options are.

This guide breaks down what each law actually prohibits, how they differ, and how violations of either one typically come to light.

Two Laws, One Underlying Problem: Referrals Driven by Money, Not Medicine

Both statutes exist to address the same basic risk: that a physician’s referral decisions might be influenced by financial self-interest rather than what’s best for the patient — and that federal health care programs end up paying the bill for it. Where they diverge is in what conduct they reach, who they apply to, and what has to be shown to prove a violation.

The Stark Law: Strict Liability for Physician Self-Referral

The Physician Self-Referral Law, commonly called the Stark Law (42 U.S.C. § 1395nn), prohibits a physician from referring Medicare patients for certain designated health services (DHS) — things like clinical lab services, physical therapy, imaging, durable medical equipment, and home health services — to an entity with which the physician (or an immediate family member) has a financial relationship, unless that relationship fits squarely within a specific regulatory exception.

A few things make Stark distinctive:

• It’s a strict liability statute. The government doesn’t have to prove the physician intended to violate it, or even knew the arrangement was improper. If the financial relationship exists, the referral happened, and no exception applies, it can be a violation — full stop.
• It only applies to physicians (and DHS entities billing for services referred by them) — not hospitals, device companies, or other referral sources in isolation.
• Exceptions must be fully satisfied. Stark exceptions (for things like bona fide employment relationships, fair market value compensation, or in-office ancillary services) have detailed technical requirements. Missing even one element — a lease that isn’t in writing, a compensation formula that isn’t set in advance, a term that runs month-to-month when it should be for at least a year — can knock an otherwise legitimate arrangement outside the exception entirely.

What this looks like in practice: A physician who has a financial interest in an imaging center (through ownership, a lease payment, or a medical directorship) and refers his own Medicare patients there. A compensation arrangement between a hospital and an employed physician where pay increases directly track the physician’s referral volume rather than actual work performed (RVUs for personally performed services, for example, are generally fine; compensation tied to referrals for DHS is not).

The Anti-Kickback Statute: A Criminal Law That Requires Intent

The Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) is broader and, in some ways, harder to prove. It makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive remuneration — money, free services, excessive lease payments, sham consulting fees, anything of value — in exchange for referring, or in exchange for arranging or recommending, business reimbursable by a federal health care program.

Key differences from Stark:

• Intent matters. The government has to show the payment was knowingly and willfully made or accepted with at least one purpose being to induce or reward referrals. If remuneration flows for a legitimate reason and inducing referrals isn’t even one of the intended purposes, it may not violate the AKS — even if referrals happened to follow.
• It applies to anyone, not just physicians — device manufacturers, pharmaceutical companies, home health agencies, hospitals, and marketers can all be liable.
• It has safe harbors, not exceptions. Safe harbors describe arrangements that are protected if every element is met, but falling outside a safe harbor doesn’t automatically mean a violation occurred — it just means the arrangement gets evaluated under the statute’s intent standard instead of getting automatic protection.

What this looks like in practice: A hospital covering the salary of a referring physician’s office staff. A device company paying “speaker fees” to physicians who are, in substance, being compensated for using and recommending the product.

Where They Overlap — and Where the False Claims Act Comes In

Neither statute creates a private right of action on its own. What makes both of them relevant to whistleblowers is that claims submitted to Medicare or Medicaid resulting from a Stark or AKS violation can also become false claims under the False Claims Act (31 U.S.C. §§ 3729–3733):

• Stark Law itself provides that no Medicare payment may be made for a DHS referral made in violation of the statute — billing for it anyway creates FCA exposure.
• The AKS, as amended by the Affordable Care Act, expressly states that a claim resulting from a kickback violation constitutes a false claim for FCA purposes.

That connection is what allows a private individual with inside knowledge — a relator — to bring a qui tam lawsuit on the government’s behalf over conduct that, standing alone, only the government could otherwise prosecute or pursue civilly.

How These Violations Typically Come to Light

Unlike upcoding or phantom billing, Stark and AKS violations usually aren’t visible in the claims data itself — the claim submitted often looks completely normal. The problem lives in the underlying business relationship, which means the people most likely to spot it are the people who see the paperwork behind the referral, not the billing:

• Practice administrators and office managers, who see the actual lease terms, management agreements, or medical directorship contracts — and notice when payment amounts don’t track any documented work product or fair market value analysis
• In-house counsel and compliance officers, who are often asked to review (or paper over) arrangements after the fact rather than before they’re signed
• Physicians themselves, who are offered a compensation structure and recognize that their pay is quietly tied to how many patients they send to a particular lab, imaging center, or specialist
• Billing and coding staff, who notice a referral pattern that consistently and disproportionately favors one entity — especially one with an ownership or leadership overlap with the practice
• Sales and marketing employees at device, pharmaceutical, or home health companies, who are told to structure a payment as a “consulting fee” or “speaker fee” for work that isn’t actually happening, or is far out of proportion to any legitimate service

Because these arrangements are often documented in contracts, compensation formulas, and emails rather than hidden entirely, the evidence frequently already exists — the person who has seen it usually just doesn’t recognize its legal significance until later.

What to Do If You’ve Noticed One of These Arrangements

• Preserve what you’ve already seen in the ordinary course of your job — compensation formulas, lease terms, referral logs, emails discussing the structure of a deal — without accessing files or systems outside your normal duties to go looking for more
• Write down the specifics while they’re fresh, including who set up the arrangement, how compensation is calculated, and whether it was ever explained to you as being tied to referral volume
• Understand that Stark and AKS analysis may be technical — an arrangement that looks improper on its face sometimes fits squarely within an exception or safe harbor, and one that looks routine sometimes doesn’t
• Talk to an attorney, particularly if you’re weighing whether to pursue a qui tam claim — how and when you report can affect both your legal protections and your standing to bring a claim later

Talk to a Michigan Health Care Fraud Attorney

Stark Law and Anti-Kickback Statute cases turn on details most people never get trained to spot — a compensation formula, a lease term, a directorship agreement that doesn’t match the work being done. At Szura & Delonis, PLC, our qui tam practice draws on the same health care regulatory background we use to advise physicians and practices on Stark and AKS compliance — so when you describe what you’ve seen, we recognize immediately whether it fits a known violation pattern or falls into a genuine compliance gray area.

Every initial conversation is confidential and free of charge. Learn more about our Qui Tam and False Claims Act practice, or call us directly to discuss what you’ve observed.

Phone: (248) 716-3600

Email: admin@szuradelonis.com

Address: 29777 Telegraph Rd #2401, Southfield, MI 48034

This article is provided for general informational purposes only and does not constitute legal advice. Whether a specific arrangement violates the Stark Law or the Anti-Kickback Statute depends on the facts involved, including the precise terms of any compensation arrangement and, for AKS purposes, intent. If you believe you have information about a Stark Law or Anti-Kickback Statute violation, consult an attorney about your specific situation before taking any action.

This guide walks through the three most common forms of Medicare billing fraud — upcoding, unbundling, and phantom billing — what each one looks like in practice, and how they typically come to light.

Why Billing Fraud Is Different From a Billing Mistake

Not every coding error is fraud. Medicare billing is genuinely complicated, and honest mistakes — a coder misreading documentation, a new employee applying the wrong modifier, an EHR template defaulting to the wrong code — happen constantly in every legitimate practice. The False Claims Act (31 U.S.C. §§ 3729–3733) targets knowing submission of false claims, which generally means the provider knew the claim was false, acted in deliberate ignorance of its truth or falsity, or acted in reckless disregard of the truth.

The distinction that usually separates an honest error from fraud is pattern and intent: a single miscoded claim caught and corrected looks like a mistake. The same error repeated across thousands of claims, especially when it consistently favors higher reimbursement and persists after being flagged internally, starts to look like a business practice.

Upcoding: Billing for More Than What Happened

Upcoding occurs when a provider bills for a higher level of service, a more complex procedure, or a higher-acuity patient than what the medical record actually supports. Common examples include:

• Billing a routine office visit under a higher-level Evaluation and Management (E/M) code than the documented complexity supports
• Coding a straightforward outpatient procedure as though it required significantly more physician time or medical decision-making
• Assigning diagnosis codes to Medicare Advantage patients that inflate their risk-adjustment score without supporting clinical documentation
• Billing an assistant-level service as though a physician personally performed it

How it typically gets caught: Upcoding leaves a paper trail by definition — the mismatch exists between the documentation and the code submitted. It’s most often flagged by internal coders or auditors who notice a provider’s coding consistently skews toward higher-paying codes with unusually little supporting documentation, or by comparing an individual provider’s coding distribution against national or regional Medicare billing norms, which the Centers for Medicare & Medicaid Services (CMS) and its contractors routinely analyze. A biller or coder who is instructed to “just code it higher” — or who is quietly discouraged from querying a physician about thin documentation — is often the first person to recognize the pattern, long before any government audit does.

Unbundling: Billing Separately for What Should Be Billed Together

Unbundling occurs when a provider separately bills for individual components of a procedure that Medicare requires to be billed together under a single, lower-paying comprehensive code. Medicare’s National Correct Coding Initiative (NCCI) edits exist specifically to prevent this, but schemes still emerge, including:

• Billing separate CPT codes for each step of a single surgical procedure instead of the comprehensive code that covers the full procedure
• Splitting a single lab panel into its individual component tests to increase total reimbursement
• Billing pre- and post-operative care separately when it’s supposed to be bundled into the global surgical package
• Using modifiers (like modifier 59) to bypass NCCI edits without a legitimate clinical basis for treating the services as separately billable

How it typically gets caught: Unbundling is often the easiest of the three to detect at scale, because it shows up as a statistical anomaly — a practice or facility that consistently bills bundled-code pairs separately, at a rate far outside its peers, is exactly what claims-data analytics are built to flag. Internally, it’s frequently a biller who notices the same override or modifier being applied as a default rather than case-by-case, especially if leadership discourages questions about it.

Phantom Billing: Billing for Services Never Provided

Phantom billing is the most direct form of fraud: billing Medicare or Medicaid for services, equipment, tests, or visits that never actually happened, or that were provided to a patient who was never seen. Variations include:

• Billing for appointments a patient never attended (a “no-show” billed anyway)
• Billing for durable medical equipment that was never delivered
• Billing for lab tests never run, or diagnostic imaging never performed
• Continuing to bill for services after a patient has died or been discharged
• “Ghost” patient billing, where claims are submitted for individuals who were never actually treated by the provider at all

How it typically gets caught: Phantom billing is often the easiest scheme to prove, once someone comes forward, because it’s the most falsifiable against objective records — appointment logs, equipment delivery records, lab requisitions, and even a patient’s own account of their care. It’s frequently discovered by front-desk or scheduling staff who notice billed visits that don’t match the appointment calendar, or by patients themselves who receive an Explanation of Benefits for care they never received and mention it to an employee rather than reporting it themselves.

The Common Thread: Insiders See It First

Government auditors and CMS data-analytics contractors do catch fraud through statistical outlier detection, but by the time a claims-data anomaly triggers a formal government audit, the scheme has often been running — and generating illegitimate Medicare payments — for months or years. The earliest and clearest evidence almost always exists inside the organization first: in the gap between what the chart says and what was billed, in the coder who was told not to ask questions, in the scheduling log that doesn’t match the claims submitted.

That’s precisely why the False Claims Act allows private individuals with inside knowledge to bring a qui tam lawsuit on the government’s behalf — the people positioned to catch this early are rarely the government’s own auditors. They’re billing specialists, coders, nurses, office managers, and compliance staff who saw the mismatch before anyone else did.

What to Do If You’ve Noticed One of These Patterns

If you’re recognizing your own workplace in this article, a few things are worth doing before you decide how — or whether — to act:

• Document what you’ve observed, including dates, specific claims or patients where possible, and whether you raised the issue internally and what response you got
• Distinguish between what you personally witnessed and what you were told secondhand — this matters significantly for your legal standing if you later pursue a qui tam claim (see our guide on the False Claims Act’s “original source” requirement)
• Be cautious about how you gather evidence — accessing records outside your normal job duties, even to document fraud, can create its own legal complications
• Talk to an attorney before reporting internally, if you believe the conduct may rise to the level of fraud rather than a correctable error — how and when you report can affect both your legal protections and your standing to bring a claim later

Talk to a Michigan Healthcare Fraud Attorney

Recognizing a billing pattern that looks like fraud is unsettling, and deciding what to do next shouldn’t be a decision you make without understanding your options. At Szura & Delonis, PLC, our qui tam practice draws on the same health care regulatory background we use to advise providers on Medicare and Medicaid billing compliance — which means when you describe what you’ve seen, we recognize immediately whether it fits a known fraud pattern or falls into a genuine compliance gray area.

Every initial conversation is confidential and free of charge. Learn more about our Qui Tam and False Claims Act practice, or call us directly to discuss what you’ve observed.

Phone: (248) 716-3600

Email: admin@szuradelonis.com

Address: 29777 Telegraph Rd #2401, Southfield, MI 48034

This article is provided for general informational purposes only and does not constitute legal advice. Whether a specific billing pattern constitutes fraud under the False Claims Act depends on the facts involved, including intent. If you believe you have information about health care billing fraud, consult an attorney about your specific situation before taking any action.

That question turns on whether you qualify as an “original source.” It sounds like a technicality. It isn’t. Whistleblowers have had viable, well-documented fraud claims dismissed — not because the fraud wasn’t real, but because the law decided someone else already had the right to expose it. This guide explains what “original source” means, why it exists, and how Michigan whistleblowers can protect their standing to bring a case before they file.

Why the Original Source Requirement Exists

The False Claims Act rewards people who bring the government fraud it doesn’t already know about. That incentive structure only works if the law prevents opportunists from reading a news article, a lawsuit, or a government audit report and then racing to file a copycat qui tam case to claim a reward for information that was never really theirs.

To police that line, the Act includes what’s known as the public disclosure bar (31 U.S.C. § 3730(e)(4)). In short: if the fraud allegations you’re planning to bring have already been “publicly disclosed” through certain specific channels — a federal criminal, civil, or administrative hearing, a government audit or investigation, or the news media — a court must dismiss your case unless you qualify as an original source of the information.

In other words, the original source doctrine isn’t a bonus requirement layered on top of a strong case. For whistleblowers whose fraud has already surfaced anywhere publicly, it’s the entire gate you have to pass through to bring the case at all.

What “Public Disclosure” Actually Covers

The public disclosure bar generally applies if the allegations were disclosed through one of the specific channels Congress listed in the statute:

• Federal criminal, civil, or administrative hearings in which the government or its agent is a party
• Congressional, Government Accountability Office, or other federal report, hearing, audit, or investigation
• The news media — including, under current law, many online news sources

Notably, this list does not automatically include everything an employer’s internal compliance system generates, state (non-federal) proceedings in every circumstance, or information sitting in a company’s own private records. Whether a particular disclosure counts is a fact-specific, heavily litigated question — courts have gone both ways on whether things like SEC filings, state court dockets, or trade publications qualify. This is exactly the kind of threshold issue that benefits from experienced counsel reviewing the specific disclosure before you file, not after a defendant’s motion to dismiss raises it for the first time.

The Two-Part Original Source Test

If a public disclosure exists, you can still bring your case if you qualify as an original source. Under the 2010 amendments to the False Claims Act, you generally must show one of two things:

1. You voluntarily disclosed the information to the government before the public disclosure occurred, and your knowledge materially added to that disclosure; or

2. You have “direct and independent knowledge” of the information underlying the allegations, and you voluntarily provided that information to the government before filing suit.

The second path is the one most health care insiders rely on. Two words carry almost all the legal weight:

Direct knowledge generally means knowledge derived from your own firsthand observations and experience — not information you got secondhand from a colleague, pieced together from documents someone else showed you, or inferred entirely from public information. If you personally reviewed the billing records, sat in the meeting where the kickback arrangement was discussed, or processed the claims yourself, that’s direct knowledge. If a coworker told you about it over lunch, that’s a harder case.

Independent knowledge generally means your knowledge didn’t come from the public disclosure itself. You can’t read a news article about a fraud scheme and then claim to be an original source of the allegations in that article — your knowledge has to predate and stand apart from the disclosure.

Practical Examples: Who Typically Qualifies

Understanding this doctrine matters most when you translate it into the roles health care whistleblowers actually hold. Generally:

Likely to qualify as an original source:

• A billing or coding specialist who personally processed or reviewed the claims in question
• A nurse, physician, or clinician who personally observed medically unnecessary procedures being ordered or performed
• A compliance officer or auditor who personally identified the pattern during an internal review
• An office manager or administrator with firsthand access to the referral agreements or financial arrangements at issue

Requires closer legal analysis:

• An employee who learned about the fraud primarily through office rumor or a coworker’s account
• Someone whose knowledge is based mostly on documents they weren’t authorized to access or didn’t personally review
• A relator whose allegations largely track an existing news story, lawsuit, or government report about the same defendant
• A former employee relying heavily on what they read after leaving, rather than what they witnessed while employed

If you fall into the second category, it doesn’t necessarily mean you have no case — it means the original source analysis needs to happen before filing, not after a defendant challenges it.

Why This Matters Even If You’re Confident the Fraud Is Real

The original source requirement is easy to underestimate because it has nothing to do with whether the fraud actually happened. A relator can be completely right about the underlying fraud and still lose the case on this threshold issue if a court finds the public disclosure bar applies and the relator doesn’t meet the original source test. That’s not a hypothetical risk — it’s one of the most common grounds for early dismissal in qui tam litigation, and it’s litigated aggressively by defense counsel precisely because it can end a case without ever reaching the merits.

This is also why the timing and manner of your disclosure to the government matters. The original source test requires that you voluntarily provide your information to the government before filing suit — which is one of several reasons a structured, attorney-guided disclosure statement to the Department of Justice, prepared and submitted correctly at the time of filing, is a critical part of qui tam case strategy rather than a formality.

What Michigan Whistleblowers Should Do Before Filing

If you believe you’ve witnessed health care fraud and are weighing whether to come forward, the original source analysis is one of the first things a qui tam attorney should walk through with you — before any complaint is drafted. In practice, that means:

• Documenting how you learned what you know, not just what you know — dates, your role, what you personally observed versus what you were told
• Identifying whether anything resembling your allegations has already surfaced in a lawsuit, government report, or news coverage involving the same provider
• Preserving evidence of your own firsthand access and involvement, which will matter if original source status is later challenged
• Getting a confidential legal assessment of your public disclosure exposure before you file, not after opposing counsel raises it in a motion to dismiss

Talk to a Michigan Qui Tam Attorney Before You File

The original source doctrine is one of the most consequential and most misunderstood parts of False Claims Act litigation, and it’s exactly the kind of issue that separates a case built to survive a motion to dismiss from one that isn’t. At Szura & Delonis, PLC, our qui tam practice is built on the same health care regulatory background we use to advise providers on Stark Law, the Anti-Kickback Statute, and Medicare/Medicaid compliance — which means we evaluate not just whether the fraud is real, but whether your specific knowledge and its source will hold up under the Act’s threshold requirements.

If you believe you’ve witnessed Medicare, Medicaid, or other government health care fraud, a confidential conversation with our firm costs nothing and creates no obligation. Learn more about our Qui Tam and False Claims Act practice, or call us directly to discuss your situation.

Phone: (248) 716-3600

Email: admin@szuradelonis.com

Address: 29777 Telegraph Rd #2401, Southfield, MI 48034

This article is provided for general informational purposes only and does not constitute legal advice. The application of the False Claims Act’s public disclosure bar and original source requirement is highly fact-specific. If you believe you have information about health care fraud, consult an attorney about your specific situation before taking any action.

Szura, a founding partner of Southfield law firm Szura & Delonis, P.L.C., was selected during the HCLS Annual Meeting on September 20th.

The Health Care Law Section is one of the largest sections of the State Bar of Michigan with approximately 1,000 members. The HCLS’s numerous committees and programs provide valuable educational resources for its members around the state. Those resources include webinars and publications on emerging issues in health care law, as well in-person programs at its Annual Meeting and the annual Health Law Institute, which it co-sponsors with the Institute of Continuing Legal Education. In addition, the HCLS seeks to “serve the health care community and advocate on behalf of its interests concerning state and federal legislation and public policy which affect the practice of health care law and related issues.”

Szura’s previous experience with the Health Care Law Section includes service as Chair of its Publications Committee, service as Chair-Elect and as an active Council Member. Szura has also presented on numerous health law topics at HCLS events. He is also an active member of the Medical/Legal Committee of the Oakland County Bar Association.

Szura is a 2003 graduate of Cornell Law School, with a concentration in Business Law and Regulation. He received his undergraduate degree from the University of Michigan, He has been repeatedly selected as a Michigan Super Lawyer Rising Star, among other distinctions.

Szura represents and counsels health care clients on many aspects of their business, including complex health care regulations, such as the Stark Law, the Anti-Kickback Statute, and HIPAA. He also advises on licensing issues, telemedicine, medical staff and peer review matters, and employment matters, among other areas. In addition, Szura has represented health care clients in a wide variety of matters in state and federal courts and in administrative hearings.

Szura & Delonis, P.L.C. is a firm of Michigan business lawyers who provide legal counsel for small and medium-sized businesses with a particular focus on health care law, real estate and labor and employment law.

However, earlier this month the Centers for Medicare and Medicaid Services (CMS) proposed significant changes in government reimbursement for telehealth services in the 2019 Physician Fee Schedule and Quality Payment Program.

Specifically, CMS is proposing new codes for remote patient monitoring services. The new codes will reduce some of the burden on practice groups. They will require less treatment time for a service to be reimbursed (20 minutes a month instead of 30 minutes). They provide separate reimbursement for set-up and patient education of the system. Finally, and perhaps most importantly, they allow other staff professionals (e.g., RNs) to be reimbursed for such services. These new codes might be the difference in the decision whether to provide remote patient monitoring.

CMS is also seeking to increase access to qualified health professionals by advancing virtual care services. CMS is proposing new codes for virtual check-ins, evaluations of forwarded images and videos, and peer-to-peer online consultations. Importantly, those codes would not require the use of live, interactive audio-video technology and would not require the patient be located in a rural area or a specific qualifying originating site. The originating site requirements and the live face-to-face requirements have been major hurdles in adopting or expanding telehealth services. The fact that CMS is proposing to remove those requirements in this area indicates the requirements may be losing favor. That would be good news for those who have been stopped by those hurdles when deciding whether to expand their telehealth services.

These changes are only proposals at this time. CMS is currently accepting comments on these changes up to September 10, 2018. However, it is likely that they will be adopted in some form for the 2019 fee schedule. That would be good news for providers seeking to expand their practice and good news for patients who have trouble traveling to a qualified provider for the treatment they need.