What is Considered to be a Healthcare Whistleblower
What is the Role of a Whistleblower?
Whistleblowers play a crucial role in exposing wrongdoing, promoting transparency and holding individuals or organizations accountable for their actions. In healthcare, whistleblowers play an important role in stopping healthcare fraud, by bringing forward a case under the federal False Claims Act, or the Stark Law or physician self-referrals, or the Anti Kickback statute. This often entails Medicare Fraud, Medicaid fraud, and other healthcare fraud that costs the government money. The fraud is committed in order to gain certain financial benefit, or to out-gun the competition, or outright mistreatment, maltreatment or misrepresenting something to either or the patient or the government or related insurance companies. In healthcare this means a medical provider - a pharmacy, pharmaceutical company, a hospital, a clinic, a nursing home, a home health provider, doctor, dentist, podiatrist, chiropractor, a network, an insurance company and insurance brokers.
Who can be a Whistleblower - Definition and Basics:
"By definition a whistleblower is a person who informs the government when a person or an organization is engaged in illegal activity. A healthcare whistleblower is someone who reports waste, fraud, abuse, corruption, or dangers to the public and safety. A whistleblower is a person, often an employee, who reveals information about activity within a private or public organization that is deemed illegal. This includes activities that the employee sees an employer doing some type of wrongdoing. However a whistleblower is not limited to a current employee whistleblower and whistleblower protection extends to current employees, former employees and anyone regardless of their citizenship status in the United States. Under the Foreign Corrupt Practices Act (FCPA) whistleblowers who report wrongdoing, who are foreign to the United States or report wrongdoing abroad and report it to local foreign officials, can be compensated between 10% to 30% of the damages. Therefore, anyone can be a whistleblower whether you are a current or former employee, at-will employee or not even an employee at all, however the statements you carry must have actual weight. Being able to support your claims with evidence is crucial when becoming a whistleblower. Collect and preserve any relevant documents, emails, photographs, videos, or other tangible evidence that substantiate the wrongdoing. This evidence not only strengthens your case but also helps investigators or authorities in their pursuit of justice.
Who qualifies to be a Whistleblower:
To qualify as a whistleblower, you must possess credible and specific information about illegal activities, fraud or other wrongdoing within an organization or institution. This knowledge could come from personal involvement, witnessing events, or having access to documents or records that reveal the misconduct. If you see yourself as correcting a wrongdoing with the help of others in order to fix a situation you're in the right place.
Should a Whistleblower Report the Matter Internally, first?
Generally, Yes, unless the circumstances are outside the norms of how companies operate. One of the key things a court looks for is: Did the whistleblower exhaust internal reporting systems inside a company before external reporting or filing suit. This can be seen in the case of Campbell vs Regents of University of California (2005), in which a faculty member of the University's Architecture and Design team was told to bid and prepare documents that would limit competition through the use of restrictive specification which was in direct violation of California bidding laws. The Whistleblower suit was successful landing it's way all the way up to the California Supreme Court, however to Campbell's detriment the court ruled "where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” In plain words, saying that because Campbell did not exhaust all internal remedies of reporting even though she protested verbally to the bid and preparing of documents the court wouldn't rule until she exhausted all internal reporting. After the evidence, name and arguments were already in public record giving her a significant disadvantage then if Campbell had exhausted all of their legal remedies from the get go.
How do I know my Whistleblower Case is Strong Enough?
As a whistleblower, it is important to ensure that you follow these two basic questions: ‘do I have personal knowledge or have seen evidence myself that point to wrongdoing' and ‘do I have reasonable means of getting strong and trustworthy information through resources I have access to?'. If you are unsure about your answer to these questions it is important to seek legal counsel before blowing. It is important to understand that after a complaint is submitted to the Department of Justice (DOJ) over 75% of whistleblowing cases are turned down by the DOJ. This is mostly due to the mere problem that people don't truly understand the reward programs for whistleblowers and submit without answering the two questions from before to ensure whether a fraud or misconduct had actually occurred.
Secondly, one of the fundamental qualifications of being a whistleblower is acting in good faith, a genuine desire to expose wrongdoing and protect the public interest. Motivations should not be driven by personal gain, revenge, or malicious intent. Whistleblowing should be seen as a responsible and ethical action taken to rectify a genuine concern. If you see yourself as correcting a wrong that has been incurred with the help of others you are in the right place.
Public vs Anonymous
Lastly, when whistleblowing there are two methods of going about the process that have very different implications and protections surrounding it: Public vs Anonymous reporting. Even though reporting publicly subjects you to retaliation and backlash it is important to note how long whistleblower trials can take. A whistleblower complaint from the date of submission could take a year or two but sometimes up to a decade, your name will not be released publicly unless the DOJ conducts their investigation if they first agree that the case has merit. If at any time the DOJ declines your case or stops pursuing your case, your name will not be released. In many cases you can keep your name out of the public eye until the day you are formally asked by the DOJ if you wanna pursue legal action, which is after the DOJ investigation was concluded which could be easily anywhere from one to five years after the DOJ accepted this case on its merits. Meaning in many cases the healthcare company or firm does not know who blew until multiple years later. However if this is not the way you think you should go based on risk, situation or relationship with company anonymous reporting is the way to go. Maintaining confidentiality helps protect your identity and prevents premature disclosure of information, ensuring that investigations can proceed effectively. Whistleblower protection laws often include provisions to safeguard the identity of whistleblowers, allowing them to report anonymously or with the assurance of confidentiality. This method will still require you to talk to the DOJ if they take your case but your name will never be disclosed publicly. All in all, the decision to engage in public or anonymous whistleblowing carries different implications and protections for individuals seeking to expose wrongdoing. Public whistleblowing involves openly disclosing your identity, potentially leading to personal and professional consequences but also offering the opportunity to advocate openly for change. On the other hand, anonymous whistleblowing allows you to protect your identity, minimizing the risk of retaliation while potentially limiting direct communication. Regardless of the approach chosen, gathering evidence, seeking legal advice, and understanding jurisdiction-specific protections are essential to ensure your safety and the effectiveness of your disclosure.
Can I be fired for being a Whistleblower?
The short answer, no. The long answer under the False Claims Act (FCA) and the Whistleblower Protection Act (WPA) provides protections for healthcare whistleblowers. The FCA allows individuals to file lawsuits on behalf of the government in cases of fraud against federal programs, such as Medicare or Medicaid. Under the FCA, whistleblowers may be entitled to a portion of any financial recovery resulting from successful litigation. The WPA protects federal employees who disclose information they reasonably believe evidences a violation of law, including fraud, waste, or abuse of authority. It prohibits retaliation against employees who make protected disclosures and provides a means of seeking corrective action if retaliation occurs. Anti-Retaliation statutes are universal across all states and jurisdictions just apply in different scenarios, make sure to seek legal advice to know your specific protections.
In Florida for this type of protection we look to section 112.3187 of the Florida Statutes. Furthermore under the Florida Whistleblower's Act, public employees are protected from retaliation when they disclose or object to violations of laws, rules, or regulations committed by their employer or coworkers. If an employee engages in protected whistleblower activity and subsequently experiences adverse actions, such as termination, demotion, or harassment, they may have grounds for a legal claim under the Florida Whistleblower's Act. The Act provides for remedies, including reinstatement, back pay, compensatory damages, and attorney fees.
What is the Reward of Being a Whistleblower
"A whistleblower is typically entitled to a share of the financial recovery, which is typically between 15% and 30%. A whistleblower is called the “realtor” and if they are not an employee at the time of filing the case, it is then called a qui tam case. In order to receive an award that the whistleblower must have: 1) Specific personal knowledge about the violations, 2) Cannot (or minimally) have participated in the violation, and preferably protested on record about the violations, 3) Have evidence in hand, such as emails, texts, contracts, specific transactions, with names, dates, numbers, that would lead the U.S. Department of Justice investigators to start their investigations. Some of the larger awards given to healthcare whistleblowers are well above $100 million, it will depend on the case at hand; and many of them include healthcare providers, insurance companies, and pharmaceuticals.
A reward sends a clear message to potential healthcare whistleblowers that their information is valuable and can mitigate the risks of retaliation for the government.
Becoming a whistleblower is a significant decision that requires careful consideration and understanding of the qualifications involved. By possessing credible knowledge of wrongdoing, supporting your claims with evidence, acting in good faith, and being aware of your legal protections, you can navigate the process more effectively. Remember to prioritize your safety, seek legal advice, and ensure that your motivations align with the goal of exposing misconduct and protecting the public interest. Whistleblowing is a courageous act that can bring about positive change and accountability in society.
Mirza Healthcare Law Partners
Ben Assad Mirza