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The threat for health care providers of qui tam actions, also known as whistleblower lawsuits, under the federal False Claims Act (“FCA”) is very real these days. Tough economic times and recent statutory changes in the FCA protecting whistleblowers, combined with the government’s intensified interest in stopping healthcare fraud, have made the lure of potential financial gain from qui tam actions more attractive to potential whistleblowers. During 2011, more than 760 new FCA matters were filed.Under the FCA qui tam provision, persons with evidence of fraud against federal programs can sue the wrongdoer on behalf of the United States. The government has the right to intervene in such actions, but if the government declines, the private plaintiff may proceed on his or her own. Employees who bring qui tam actions can receive between 15 and 30 percent of any monies recovered by the government. The FCA specifically protects employees who become whistleblowers from retaliation by their employers.
Employees leave a lot behind when they decide to become whistleblowers. Pursuing such complex litigation can be a lengthy, expensive and emotionally-draining process that can damage the employee’s ability to find work in the healthcare field. For employers, there is a tremendous cost in defending such litigation, paying substantial financial penalties and risking damage to their reputations. There is much healthcare companies can do to discourage well-meaning employees who raise compliance concerns from escalating the concern to a qui tam or retaliation action against the employer. Such proactive measures by employer include:
• Establish A Strong, Effective Compliance Program. An employer’s most powerful defense against whistleblowers is to implement an effective corporate compliance program that promotes a culture of ethical conduct and compliance. While a culture of compliance may seem like a cliché, it is clearly missing in many workplaces. Employers who make procedures for reporting compliance concerns readily available to employees, promptly investigate legitimate employee compliance concerns and protect individuals who report concerns from retaliation may avoid qui tam litigation. Employees who do not believe management is committed to compliance, and those who fear retaliation for bringing issues to light, are less likely to help a company solve its problems and more likely to take their complaints to Uncle Sam.
• Treat Reporting Employees Carefully. When an employee comes to a supervisor or the compliance officer with a compliance concern, it is in the employer’s best interests to de-escalate the situation from the outset and to forge the most positive relationship with the individual as possible. Employees who bring forth compliance concerns should be told “thank you.” However, supervisors who are threatened by employee compliance reports may treat the employee with hostility, suspicion or retaliation. Reporting employees should be assured that the company will take the complaint seriously and take appropriate action to address any compliance deficiency. On the other hand, supervisors should be careful not to placate the employee by agreeing there’s a problem before the facts have been investigated properly.
• Develop Policies and Training Programs for Dealing with Potential Whistleblowers. Clear anti-retaliation policies and procedures for responding to compliance complaints are essential. Protocols that require deliberate action by upper management to support and guide mid-level managers and supervisors will lessen the chances that a compliance complaint becomes a qui tam or retaliation action against the company. Even the most robust compliance plan and policies for receiving and dealing with whistleblower complaints won’t stand up unless supervisors and managers are trained on the fine points of how to recognize a potential whistleblower and respond to complaints with sensitivity. The human resources department should also be trained on how to handle employment issues related to potential whistleblowers, conduct exit interviews and identify people in the annual review process who are not happy with the company’s ethical climate.
• Consider Entering into Agreements with Reporting Employees. Circumstances may warrant entering into a written agreement with a reporting employee who remains in the company workforce. The agreement would lay out expectations about the ongoing conduct between the company and the employee. Some topics covered in such an agreement might be 1) the employee’s continued dedication to his or her duties for the company; 2) protection of company and patient information from improper disclosure and confiscation by the employee; and, 3) the employee’s cooperation with the company’s internal investigation. Legal counsel can assist in negotiating such sensitive matters and preparing the agreement.
A proactive approach to potential whistleblowers can save healthcare employers the substantial aggravation and expense that result from defending qui tam or retaliation litigation. Employers will certainly reap positive benefits from investing resources in their compliance and ethics programs to address responding to reports of compliance concerns and the protection of reporting employees.
