A new court ruling clarifies who can bring a whistleblower or qui tam action. The 9th Circuit revisited a decades old interpretation of a rule that barred whistleblower actions based on publicly disclosed allegations unless the person bringing the action was the original source of the information. Federal law defines an original source as someone with "direct and independent knowledge" of the facts and who "voluntarily provided the information to the Government before filing" the whistleblower action. The case involved claims brought by two different employees relating to misuse of the KX modifier in billing for a wound healing device. The first whistleblower alleged the provider billed using the KX modifier without meeting the requirements for using that modifier. The second whistleblower also alleged the KX modifier was used when criteria weren’t met and that the provider failed to get Detailed Written Orders before delivering the device and beginning treatment. These claims were initially denied because the court determined that the information on which the claims were based had already been publicly disclosed and the whistleblowers weren’t the original source of the information. Previously, the 9th circuit had interpreted the rule to require three criteria be satisfied to find a…
