Medical workers are essential to the health and wellness of millions of Americans, but their importance doesn’t stop there. Doctors, nurses, billing specialists, and medical assistants, as well as medical device, pharmaceutical, lab, and insurance employees are also the first line of defense for stopping fraud, waste, abuse, and patient harm.
The fact is – anyone and everyone in the medical field can be a whistleblower who speaks up against illegal activity. Raising these issues can be intimidating, but medical whistleblowers can take solace knowing there are many laws that protect them from retaliation, and potential incentives if they report their concerns to the government.
The Federal False Claims Act protects medical whistleblowers against retaliation and offers incentives for whistleblowers to report fraud.
The Federal False Claims Act, or the “FCA,” protects all whistleblowers who speak up about fraud, or try to stop fraud against the government. It is against the law for employers to retaliate against an employee who tries to stop fraud against the government, and employees who suffer retaliation may be able to recover back pay, special damages, and attorneys’ fees.
While there are no magic words you have to say to be protected under the FCA, some courts have held that FCA retaliation cases require a whistleblower to show that their concerns were “objectively reasonable.” Whether your belief is objectively reasonable is a fact-intensive question. If you’re a current medical professional who has spotted fraud in the workplace, an experienced whistleblower attorney can help you determine whether the conduct potentially violates the FCA, and guide you through the process of blowing the whistle.
What if I’m a former employee? Can I still speak up and be protected under the FCA?
Recently, bipartisan legislation was introduced in the Senate to further strengthen the FCA’s anti-retaliation protections, clarifying that the FCA’s anti-retaliation protections apply to both current and former employees. In the meantime, if you’re a former employee who has been retaliated against for raising concerns or trying to stop potential False Claims Act violations, you may still be protected against retaliation. That’s because some courts, including those where you may live or may file your claim, have held that the FCA applies to former employees. An experienced whistleblower attorney can help you assess your situation, including the proper venue to file your lawsuit.
What incentives are available to medical industry whistleblowers under the FCA?
In addition to protections for reporting fraud, the FCA also provides incentives. Whistleblowers who report Medicare, Medicaid, or other government-funded healthcare fraud through qui tam lawsuits may be eligible for a reward of 15 – 30% of the amount recovered in the lawsuit.
Recent settlements have included:
- a $12.56 million reward for a medical director whistleblower who reported fraud by several healthcare providers who violated provisions of the Affordable Care Act;
- a $2.1 million reward for an operations and marketing director whistleblower who alleged that a spine and sports medicine practice performed unnecessary skin biopsies, spinal cord stimulation surgeries, and urine drug testing, costing the government millions of dollars;
- and a $5.58 million reward to two clinician whistleblowers who raised concerns about fraud by a seller of Electronic Health Record software.
In addition, state laws protect against retaliation and provide incentives for whistleblowers to report fraud.
Medical whistleblowers are also protected against retaliation under various state laws. For example:
- New York Labor Law § 740 prohibits employers from retaliating against employees who report any activity, policy, or practice that the employee reasonably believes is a violation of law or that poses a substantial and specific danger to public health or safety.
- New York Labor Law § 741 specifically protects employees activities, policies, or practices that the employee in good faith reasonably believes constitutes improper quality of patient care, or objects to participating in an activity, policy, or practice that they reasonably believe constitutes improper patient care.
- California’s Health & Safety Code § 1278.5 prohibits health care facilities from discrimination or retaliating against employees, members of the medical staff, or other healthcare workers for presenting a grievance, complaint, or report to the facility or to the government, or for participating or cooperating in investigations into patient care or conditions at a healthcare facility;
- Colorado’s Protected Health/Safety Expression and Whistleblowing Law (“PHEW”) prohibits employers from retaliating against workers who raise reasonable concerns about workplace violations of government health or safety rules or threats to health or safety.
- New Jersey’s Conscientious Employee Protection Act (“CEPA”) provides broad protections for employees who disclose concerns about violations of law to their supervisors, and, for healthcare workers in particular, for employees who raise concerns about improper quality of patient care.
Connecticut’s private whistleblower protections prohibit retaliation against employees who report violations or suspected violations of state, federal, or local laws and regulations to a public body.
There are also more than thirty states, including New York, California, Colorado, Virginia, and Florida, along with Washington D.C., with state False Claims Acts that provide rewards for reporting state Medicaid fraud. Because the federal government also funds Medicaid, it often makes sense for a healthcare whistleblower to bring Medicaid fraud claims under both the Federal False Claims Act and, if it exists, their state false claims act as well.
