Several federal whistleblower laws protect workers who come forward with information about fraud, waste, abuse, and other forms of misconduct impacting federal contracts, grants, and programs (including Medicare and Medicaid). These laws protect workers who file complaints with the federal government based on a reasonable belief that the information in their complaint warrants civil or criminal enforcement action.

Among the protections afforded to whistleblowers is a prohibition against retaliation. Blowing the whistle is considered a form of protected activity, and this means that employers cannot lawfully take retaliatory action based on an employee’s decision to come forward. Employers that retaliate unlawfully can be held liable for back pay (with interest), reinstatement, and other appropriate remedies.

“Doctors, nurses, office professionals, and other individuals in the private sector can all serve as healthcare fraud whistleblowers and receive protection against retaliation. Federal personnel are eligible for whistleblower protections in some cases as well. Exposing fraud and other forms of wrongdoing is important, and federal law provides strong protections to those who come forward.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

If you are thinking about blowing the whistle on healthcare fraud, what do you need to know about the risk of facing retaliation (and the protections that are in place)? Here are the answers to some FAQs:

What Are the Whistleblower Protection Laws that Apply to Healthcare Workers?

While there are several anti-retaliation laws that protect whistleblowers who disclose fraud, waste, abuse, and other forms of misconduct to the federal government, the primary law that applies in the healthcare sector is the False Claims Act (FCA). Congress enacted the FCA to allow the government to aggressively pursue all types of “false or fraudulent” claims submitted under federal contracts, grants, and programs.

Under the FCA, healthcare personnel who disclose suspected violations of the FCA in good faith are entitled to confidentiality and protection against retaliation (they are also entitled financial rewards in some cases). The federal government relies on whistleblowers’ assistance to pursue healthcare fraud enforcement actions under the FCA; and, when a healthcare whistleblower files a valid complaint under the FCA, the U.S. Department of Justice (DOJ) has a duty to investigate.

What is the Whistleblower Protection Act, and Who Does It Cover?

The Whistleblower Protection Act (WPA) is a federal whistleblower protection and anti-retaliation law that applies specifically to federal employees. Under the WPA, federal employees can report various violations of federal law, including gross mismanagement and waste of federal funds. Retaliating against whistleblowers in violation of the WPA is a prohibited personnel practice, and federal employees who experience unlawful adverse actions can seek appropriate remedies through the Office of Special Counsel (OSC) in most cases.

What Qualifies as a “Protected Disclosure” for Purposes of Serving as a Healthcare Whistleblower?

To qualify for protection against retaliation when filing a complaint against a health care facility or any other entity in the healthcare sector, a whistleblower must make a “protected disclosure.” Generally, this means that the whistleblower’s disclosure must be:

• Based on a good faith and reasonable belief that fraud, waste, abuse, or other misconduct has been committed;
• Related to a violation of federal law which is not already the subject of an active or resolved federal investigation (i.e., the whistleblower must generally be the first to file); and,
• Submitted through the appropriate channels and in compliance with the relevant substantive and procedural filing requirements (i.e., the requirements for filing a qui tam complaint under the FCA).

If you are interested in serving as a healthcare fraud whistleblower, an experienced attorney can contact the relevant law enforcement agency (i.e., the DOJ) on your behalf to confirm your eligibility for protected whistleblower status. If you are eligible, your attorney can work with the government on your behalf, serving as your liaison while helping to protect your identity throughout the process.  

How Can Healthcare Professionals Secure Protection Against Retaliation as a Whistleblower?

For healthcare professionals in the private sector, securing protection against retaliation as a whistleblower generally means filing a qui tam complaint under the False Claims Act. While the U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG) also accepts complaints about fraud, waste, and abuse under federal programs like Medicare and Medicaid, there are benefits to proceeding under the False Claims Act in most cases. Here too, an experienced attorney can help you make an informed decision about how best to proceed.

Do I Need to Report Fraud, Waste or Abuse in the Healthcare Industry to the Federal Government to Secure Protected Whistleblower Status?

State agencies also accept whistleblower complaints involving healthcare fraud in some cases—in particular, in cases involving Medicaid fraud. However, exposing healthcare fraud (including Medicare and Medicaid fraud) will involve working with the federal government in most cases. Combating healthcare fraud is a top federal law enforcement priority, and protecting those who come forward against healthcare whistleblower retaliation is a top federal priority as well.

Can Healthcare Professionals Report General Public Health Concerns to the Federal Government?

While many healthcare whistleblower complaints involve billing fraud, illegal kickbacks, and other related types of financial misconduct, healthcare professionals can report general public health concerns to the federal government as well. If you have concerns about patient welfare at your health care facility—or at any other facility (or facilities) across the country—this is most likely information of which HHS OIG or the DOJ would want to be aware.

Can Healthcare Workers Blow the Whistle on Occupational Safety and Health Violations?

Along with patient safety and welfare concerns, many healthcare workers have concerns about their own safety and welfare in the workplace. If your employer is violating the federal Occupational Safety and Health Act (OSH Act), you may be able to file a safety or health complaint with the federal government. The federal Occupational Safety and Health Administration (OSHA) accepts complaints about OSH Act violations in workplaces across the country.

Can My Employer Retaliate Against Me if My Whistleblower Complaint Does Not Lead to Government Enforcement Action?

If you qualify as a whistleblower under the False Claims Act (FCA), Whistleblower Protection Act (WPA), or any other federal whistleblower protection statute, you are protected regardless of whether your complaint leads to a successful government enforcement action. Even if the government decides not to take further action or the government’s case is unsuccessful, if you met the requirements to qualify as a federal whistleblower, you are protected.

For employees who have concerns about facing retaliation if they come forward, it is also important to keep in mind that whistleblowers are entitled to strong confidentiality protections as well. The federal anti-retaliation protections serve as a backup in the unlikely event that an employer discerns a whistleblower’s identity. In other words, while you can rely on the federal healthcare whistleblower retaliation protections if necessary, this will only be necessary if both: (i) your employer identifies you as the whistleblower despite the confidentiality protections that are in place; and, (ii) your employer retaliations against you despite the prohibitions that exist under federal law.

What Are My Rights if My Employer Retaliates Against Me Illegally After I Blow the Whistle?

If your employer retaliates against you illegally after you blow the whistle, your attorney will be able to take legal action to seek to hold your employer fully accountable. Potential remedies in these cases include back pay (with interest), reinstatement or placement in a new position, and attorneys’ fees. This applies in cases involving all forms of unlawful retaliation, including:

• Demotion or pay reduction
• Denial or revocation of job benefits or privileges
• Harassment in the workplace
• Reassignment to an unfavorable project or location
• Unjustified disciplinary action
• Termination of employment
• All other forms of adverse employment action

Your attorney can seek to obtain internal communications and various other forms of evidence to prove that the adverse employment action you experienced was retaliatory in nature. Importantly, even if your employer claims to have a valid reason for the adverse employment action taken against you, if this is nothing more than a pretext for retaliation, the adverse employment action still violates federal law.

What is the First Step if I Want to Report Concerns About Healthcare Fraud to the Federal Government?

With all of this in mind, what is the first step if you want to report concerns about healthcare fraud to the federal government?

Due to the complexity of the federal whistleblower process and the importance of ensuring that you secure the protections that are available, you will want to work closely with an experienced attorney. You should be able to schedule a free (and confidential) consultation promptly, and you should not have to pay anything out-of-pocket for your legal representation. An experienced healthcare fraud whistleblower attorney will be able to help you make an informed decision about whether to come forward; and, if you decide to come forward, your attorney will be able to help protect and enforce your legal rights throughout the process.