Qui Tam 2020 is the third annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott discusses CIFPA and IICFPA — two state laws similar to the FCA, except that they incentivize whistleblowers to report fraud against private insurance carriers — with David J. Chizewer of Goldberg Kohn Ltd., who'll moderate a panel on the topic on Day One of the conference.
This video interview by
TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on February 4, 2020.
Qui Tam 2020 Panel Preview: CIFPA and IICFPA
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] We are back with another moderator for the next Qui Tam Conference in Washington on February 27-28, 2020 and [turning to Chizewer] we’re with David Chizewer from Goldberg Kohn.
David, tell us a little bit about your panel. It’s on IICFPA and CIFPA, right? What are these acronyms?
David J. Chizewer: Right. Those stand for the California Insurance Fraud Prevention Act and the Illinois Insurance Claims Fraud Prevention Act. They are counterparts in a very major way to the federal and state False Claims Acts.
Oswald: So what’s the difference between these two statutes and the federal False Claims Act and state analogs?
Chizewer: The federal government under the federal False Claims Act has collected billions of dollars — and whistleblowers have helped the government to collect billions of dollars — in health care fraud. Many of the [illegal] schemes that companies have used to overbill the Medicaid and Medicare systems have also been implemented against [private] insurance companies. And people think, well, you know, the government needs whistleblowers to assist them in uncovering this fraud because the government is a huge, underfunded, bureaucratic organization that can’t discover the fraud themselves — but … insurance companies, those are private companies with more of a direct incentive to uncover fraud. Yet we don’t see insurance companies alongside the government bringing these claims and recovering the same level of dollars. And so I think certain state legislatures thought, well, maybe we need whistleblowers not only to help government entities but to also help insurance companies uncover fraud.
Interestingly enough, you do see insurance companies in the healthcare area go after … the single, solo overbilling doctor who’s using a more complex code to bill every single one of his services, for example. And you’ll hear of doctors who complain about insurance companies going after them — but those are small dollars. They may be adding up across the country, but it’s interesting that you don’t necessarily see insurance companies jumping into some of these really big False Claims Act cases where whistleblowers are helping the government to uncover hundreds of millions of dollars worth of fraud.
And so at least two state legislatures, California and Illinois, have thought: “Hey, let’s see what happens if we allow whistleblowers to help insurance companies uncover this fraud.”
Oswald: So under the federal False Claims Act, an individual stands in the shoes of the government. Here, how is this different?
Chizewer: Right. So the interesting thing is, the legislatures haven’t said [that] if the whistleblower can uncover fraud against an insurance company, that somehow the whistleblower gets the insurance company’s money like they do [with] the government. Because insurance companies, they’re private — and insurance companies haven’t necessarily agreed to allow private citizens to get a portion of the damages that they’ve suffered.
So the way the state legislatures have worked it, is they’ve said, “OK, well there are penalties — criminal penalties — for defrauding insurance companies and those can be monetary penalties. And those monetary penalties belong to the government. So as a governmental entity, as our legislature, we can assign some of that penalty money to whistleblowers if they help us uncover fraud.”
And then you’re not really invading the insurance company’s private damages: You’re just giving whistleblowers a portion of the public penalty money for, you know, going against bad actors.
Oswald: If I don’t live in Illinois or in California but I want to blow the whistle on insurance fraud, do I care about these statutes?
Chizewer: Well, if you are incentivized [by a potential reward]. You don’t have to be a resident of the state. If you know that a company within that state is committing some type of insurance fraud, you can uncover that and get a portion of the penalties that the state would impose on the fraud-doer.
Again, you don’t have access — you don’t get an assignment of a portion of the actual insurance companies’ private damages, since those are private companies and they haven’t agreed to assign to private citizens portions of damages that they’ve suffered. But because of the criminal aspect of fraud, of insurance fraud, and the monetary penalties that go along with that, you can recover a percentage of the monetary penalties.
And sometimes the percentages in these insurance acts are even bigger than in the False Claims Acts.
Oswald: Wow. So tell us a little about your panel at the Qui Tam Conference in 2020 —
Chizewer: Right —
Oswald: What can we expect to hear if we’re in the audience?
Chizewer: Right. Well again this is a panel where we want to be objective and represent both sides — really three sides. You’ve got defendants who are accused of insurance fraud; you’ve got whistleblowers who are bringing the fraud [claims]; and there’s the insurance companies. We’re going to hopefully have someone on the panel who has represented insurance companies who have brought their own claims for their own damages under these statutes — as both a whistleblower and a damaged party — and maybe [we can get] perspective on why we need whistleblowers, and why aren’t more insurance companies filing claims under these statutes.
And then we’ll, of course, have defense lawyers who are defending claims under these statutes, who will have their own perspective on whether these [laws] are a good or bad thing.
Oswald: David, thank you.
Chizewer: Sure thing.
Oswald: [Turning to camera] We look forward to seeing you on February 27-28 here in Washington at the 2020 Federal Bar Association Qui Tam Conference. You can register on our Web site at fedbar.org.