Whistleblowers play a critical role in uncovering healthcare fraud in the private sector. This applies across the board—from fraudulent billings for patient services to fraud in federally funded scientific research. Because of the critical role that whistleblowers play, federal law provides strong protections for those who come forward in good faith. These include confidentiality protections and protections against retaliation in employment.

While there isn’t a healthcare whistleblower protection act that applies specifically to fraud under Medicare, Medicaid, and other federal healthcare programs, several whistleblower laws provide protections to private-sector healthcare workers, federal employees, and other employees who choose to come forward. These include the False Claims Act and the Whistleblower Protection Act, among others. To secure protection under these laws, whistleblowers must come forward through the appropriate channels, and they must do so based on a reasonable belief that governmental action to address misconduct or fraud is warranted.

“Multiple whistleblower protection laws apply within the federally funded healthcare sector. When a recipient of federal funds violates federal law, filing a whistleblower claim is the first step toward helping the government establish accountability.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

From Medicare and Medicaid fraud to gross waste, gross mismanagement, and threats to public health, healthcare whistleblowers can report numerous forms of wrongdoing perpetrated by health care facilities, research facilities, and other entities. With that said, if you are thinking about serving as a healthcare whistleblower, it will be important to ensure that you are making informed decisions. While submitting information about healthcare fraud to the federal government can qualify as a protected activity, whistleblowers must come forward in accordance with all applicable substantive and procedural requirements in order to secure the protections that are available.

FAQs: Whistleblower Protections for Healthcare Workers and Others

With this in mind, here are the answers to some frequently asked questions (FAQs) about the whistleblower protections that are available to healthcare workers and others:

How Does the Federal Government Protect Whistleblowers Who Expose Health Care Fraud?

The federal government protects workers in the public and private sectors who report practices that violate federal law and federal regulations such as the Medicare and Medicaid billing rules. The protections afforded to whistleblowers who expose healthcare fraud fall into three broad categories:

• Confidentiality – Whistleblowers who come forward under the False Claims Act, Whistleblower Protection Act, and other applicable laws are entitled to strict confidentiality.
• Anti-Retaliation Protections – Anti-retaliation laws prohibit employers from taking adverse employment action against employees based on their decision to blow the whistle.
• Remedies for Unlawful Retaliation – If an employer unlawfully retaliates against a healthcare whistleblower, the whistleblower is entitled to equitable and/or legal remedies.

As stated above, however, these protections are only available when whistleblowers come forward through the appropriate channels. Depending on the circumstances, this may involve filing a qui tam complaint under the False Claims Act, contacting a federal law enforcement agency such as the U.S. Department of Justice (DOJ), or submitting a complaint to the U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG) hotline. Federal employees may have other options as well.

Do These Protections Apply to All Federal Contracts, Grants, and Programs Involving Healthcare?

Generally speaking, yes. Individuals who report alleged wrongdoing under federal healthcare contracts, grants, and programs through the appropriate channels can all qualify for whistleblower protections under federal law. While most healthcare whistleblower cases involve allegations of billing fraud and other financial violations, whistleblowers can also report violations that they believe pose specific dangers to patient safety or public health.

Do These Protections Apply to All Employees and Personal Services Contractors?

Generally speaking, yes. Just as federal whistleblower protection laws apply to all federal contracts, grants, and programs involving healthcare, they also apply to all individuals who come forward. Federal employees responsible for grant oversight and other pertinent matters can serve as whistleblowers in some cases as well, though the definition of covered wrongdoing varies slightly depending on whether an employee works in the public or private sector.

What Qualifies as a “Protected Disclosure”?

Information about alleged fraud or other alleged wrongdoing generally qualifies as a “protected disclosure” if it meets three basic requirements: (i) the information is disclosed in good faith and based on a reasonable belief that fraud or other wrongdoing has been committed; (ii) the individual making the disclosure is the first to come forward (subject to certain exceptions); and, (iii) the disclosure is made to an authorized recipient. As discussed in greater detail below, “authorized recipients” vary for individuals who work in the public and private sectors.

Subject to these three basic requirements, protected disclosures can take many different forms. Some common examples of protected disclosures for healthcare whistleblowers include:

• Billing fraud under Medicare, Medicaid, and other federal healthcare programs
• Billing fraud and other violations under federal healthcare contracts and grants
• Gross waste or gross mismanagement of federal funds
• Substantial and specific dangers to public health or safety
• Censorship related to scientific research or analysis
• Illegal kickbacks and referral fees that violate the Anti-Kickback Statute or Stark Law
• Violation of any other law, rule, or regulation related to healthcare billing or compliance

As noted above, however, the types of wrongdoing that individuals can report varies depending on their employer (and, in some cases, the nature of their employment). To ensure that they will be eligible to receive the protections that are available, prospective whistleblowers should consult with experienced legal counsel before coming forward.

What Federal Agencies Are “Authorized Recipients”?

For most employees (and former employees) in the private sector, filing a healthcare whistleblower complaint most often involves coming forward under the False Claims Act. However, in appropriate cases, private-sector whistleblowers may choose to contact the DOJ or HHS OIG directly. Disclosing fraud to a state agency (i.e., a state Medicaid Fraud Control Unit (MFCU)) may be appropriate in some circumstances as well.

For employees in the public sector, “authorized recipients” vary depending on their federal employer. For example, HHS civilian employees can make protected disclosures, “to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” When information is classified or prohibited from release, HHS civilian employees may only share the information with the HHS OIG, the Office of Special Counsel (OSC), or a designated agency official.

In contrast, HHS contractors and grantees may only make protected disclosures to the following authorized recipients:

• A member of Congress or a representative of a congressional committee
• U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG)
• Government Accountability Office (GAO)
• A Federal employee responsible for contract or grant oversight or management at the relevant agency
• An authorized official of the DOJ or other law enforcement agency
• A court or grand jury
• A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover or address misconduct

U.S. Public Health Service Commissioned Corps officers and certain other federal personnel are subject to differing “authorized recipient” rules as well.

The need to ensure that whistleblowers disclose information to the appropriate recipient is another important reason to consult with experienced legal counsel before coming forward. In all cases, whistleblowers must comply with the relevant substantive and procedural disclosure requirements as well; and, here too, relying on the advice of experienced legal counsel can be essential.

What Happens When a Healthcare Worker Who is Protected from Retaliation Experiences an Adverse Action?

While whistleblowers’ rights are clear, employers don’t always follow the law. When a healthcare worker who is protected from retaliation experiences adverse action related to their employment, they can—and should—seek to hold their employer accountable.

From demotion and reassignment to termination of employment, all types of adverse employment actions can warrant unlawful retaliation claims under the False Claims Act and other pertinent federal statutes. The key is being able to prove that the adverse action was based on the employee’s decision to blow the whistle. If an employer has a legitimate reason for taking adverse action against an employee who has blown the whistle, it can generally still do so—provided that this reason is not simply a pretext for an unlawful retaliatory action.

Are Healthcare Workers Also Protected When They Disclose Occupational Safety and Health Violations in the Workplace?

Along with exposing billing fraud and other forms of fraud against the federal government, healthcare workers are also entitled to protections when they disclose occupational safety and health violations in the workplace. Under the federal Occupational Safety and Health Act (OSHA), hospitals and other healthcare facilities have a legal duty to protect against unsafe working conditions. If they fail to meet this duty, they can face civil liability and other consequences, and employees have the right to report health and safety violations in their workplaces when necessary.

Although strong protections are available to healthcare whistleblowers in the public and private sectors, identifying and securing the relevant protections can be challenging. As a result, it is important for all prospective whistleblowers to work with experienced legal counsel who can assess the applicability of the various sources of federal authority relating to whistleblower protection and assist with making an appropriate protected disclosure depending on the specific source of authority that applies.