Healthcare fraud is a major issue. According to federal government estimates, it costs taxpayers in the realm of $100 billion every year. While the U.S. Department of Justice (DOJ) and U.S. Department of Health and Human Services (DHHS) can pursue civil and criminal remedies for healthcare fraud under the False Claims Act, they can only do so if they know that a healthcare provider has misappropriated federal funds.
As a result, whistleblowers play a key role in the federal government’s ongoing fight against Medicare fraud, Medicaid fraud, Tricare fraud, and other fraudulent billing practices. Healthcare employees and former employees, federal employees responsible for administering federal healthcare programs, members of the armed forces, veterans, and other patients can all file whistleblower claims when warranted. Federal law protects workers against whistleblower retaliation, and certain whistleblowers may also be eligible for financial rewards in some cases.
“Whistleblowers play a key role in the federal government’s fight against gross waste, gross mismanagement, and other forms of fraud in the federally funded healthcare sector. While the DOJ—the nation’s top law enforcement agency—prosecutes healthcare fraud, it can only do so when it is aware that prosecution is warranted.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
Here are the answers to some frequently asked questions about whistleblower protections for healthcare providers and other employees and individuals who report fraud, waste, and abuse to the federal government:
Is There a Healthcare Whistleblower Protection Act?
While there is not a federal Healthcare Whistleblower Protection Act, there are federal whistleblower laws that apply to healthcare providers in the private sector. These include the Whistleblower Protection Act (WPA) and the False Claims Act (FCA). Healthcare workers and others who have a reasonable belief that they are privy to information about fraud, waste, and abuse under federal healthcare programs may be eligible to file claims under these whistleblower protection laws. When they do, filing a claim in good faith constitutes protected activity, which (among other things) means that whistleblowers are entitled to protection against adverse action in their employment.
How Does the Whistleblower Protection Act Protect Healthcare Workers?
The Whistleblower Protection Act protects healthcare workers who work for federal contractors, subcontractors, and grantees who report alleged wrongdoing to the government through the appropriate channels. This alleged wrongdoing can take many forms, including (but not limited to):
- Overbilling Medicare, Medicaid, Tricare, and other federal healthcare programs
- Providing medically unnecessary services in order to bill federal healthcare programs
- Violations of the Anti-Kickback Statute and Stark Law
- Failure to effectively manage federal grant oversight, contract compliance, or healthcare program compliance
- Scientific research practices that present a specific danger to public health or safety
Again, these are just examples. When the WPA applies, it prohibits retaliation against employees who come forward, and it provides remedies when employers violate employees’ rights. This includes such actions as demoting and terminating employees based on their decision to blow the whistle.
What Are Some Examples of Protected Disclosures Under the Whistleblower Protection Act?
In healthcare, Whistleblower Protection Act disclosures can take many different forms. Some examples of fraudulent practices that qualifying healthcare workers can report to federal agencies under the WPA include:
- Billing for medical services provided by non-qualified healthcare personnel
- Double-billing the federal government and insurance companies
- Unbundling related healthcare items or services in order to bill separately at higher rates
- Upcoding items or services in order to bill at higher rates
- Phantom billing (billing for items or services not provided to patients)
All of these are specifically prohibited under federal health acts and regulations, federal grants and contracts, and the billing rules for Medicare, Medicaid, Tricare, and other federal healthcare programs. Essentially, if a qualifying healthcare worker has information about any violation of any law, rule, or regulation related to federal healthcare billings, this can potentially provide grounds to come forward under the whistleblower protections of the WPA.
How Can Healthcare Providers and Healthcare Professionals Report Fraud to the Federal Government?
Qualifying healthcare providers and healthcare professionals (i.e., those that work for federal contractors, subcontractors, and grantees) can report fraud under the Whistleblower Protection Act through various means. With that said, individuals seeking to establish whistleblower rights under the WPA must come forward through the appropriate channels in order to secure protection from disciplinary action. Even when an individual has information about a substantial and specific danger to patients, if the individual does not come forward through the appropriate channels, the WPA’s protections will not apply.
Some of the appropriate channels for making protected disclosures under the Whistleblower Protection Act include:
- Designated agency officials at the U.S. Department of Justice (DOJ), U.S. Attorney General’s Office, and other law enforcement agencies
- DHHS’s Office of Inspector General (DHHS OIG)
- Federal courts and grand juries
- Government Accountability Office (GAO)
- Members of Congress and representatives of Congressional committees
This means that healthcare providers and healthcare professionals who disclose fraud, waste, and abuse to state agencies and non-governmental audiences generally are not eligible for protection under the WPA. This includes disclosing fraud, waste, and abuse to media outlets or on social media platforms.
Are the Reporting Procedures the Same for Employees of Federal Grant Recipients and Healthcare Providers with Federal Contracts?
Yes, for all employees in private-sector healthcare, Whistleblower Protection Act disclosure requirements and procedures are the same. As discussed below, however, there are slightly different requirements for disclosure depending on whether a whistleblower works in the private sector or for the federal government.
What Agencies Are Authorized Recipients Under the Whistleblower Protection Act?
As noted above, the DOJ, DHHS OIG, and GAO are authorized recipients under the Whistleblower Protection Act. This means that the WPA protects qualifying employees who report fraud under federal contracts, grants, and healthcare benefit programs to these agencies. With that said there are different procedures for disclosure depending on the agency a whistleblower chooses to contact. For example, while DHHS OIG accepts whistleblower claims through its OIG hotline (among other means), the DOJ and GAO have different submission procedures for healthcare fraud complaints under the WPA.
Does the WPA Exclusively Protect Whistleblowers in the Healthcare Industry and in Public Health?
The Whistleblower Protection Act does not exclusively protect whistleblowers who work in the healthcare sector. It also protects qualifying federal employees. For example, as DHHS OIG explains, DHHS employees, “may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” As DHHS OIG goes on to explain, “However, if the information is classified or specifically prohibited by law from release, it may only be shared with OIG, [the Office of Special Counsel (OSC)], or a designated agency official.”
Certain other federal employees may be eligible to come forward under the Whistleblower Protection Act as well. Importantly, however, as DHHS OIG notes, “the definition of wrongdoing varies slightly depending upon your place of employment.” For example, while private-sector healthcare personnel can generally report the types of fraud listed above (among others), DHHS employees are only eligible to receive whistleblower protections for reporting:
- Abuse of authority
- Censorship related to scientific research or analysis
- Gross mismanagement or waste of funds
- Substantial and specific danger to public health or safety
- Violation of any law, rule, or regulation
With this being the case, federal personnel who are interested in coming forward under the Whistleblower Protection Act should consult with experienced legal counsel before doing so. An attorney who has experience representing WPA whistleblowers will be able to assess whether the statute’s protections are available under the circumstances at hand.
How Does the Whistleblower Protection Act Protect Federal Workers Who Have Information About Healthcare Fraud?
As amended by the Whistleblower Protection Enhancement Act, the Whistleblower Protection Act prohibits federal agencies from taking adverse action against personnel who make protected disclosures. This means that federal employees who report fraud, waste, and abuse in compliance with the WPA’s requirements cannot be fired, demoted, or otherwise disciplined for doing so.
Does the Whistleblower Protection Act Also Apply to Occupational Safety Issues in Healthcare Workplaces?
Along with healthcare fraud, occupational safety issues are a very real concern in many healthcare workplaces as well. Whether the Whistleblower Protection Act applies to these types of issues depends on the circumstances at hand. With that said, healthcare personnel also have other options for reporting violations of the Occupational Safety and Health Act (OSHA) and other federal workplace safety laws and regulations.
Are There Financial Rewards for Reporting Healthcare Fraud to the Federal Government?
While the Whistleblower Protection Act does not include reward provisions, healthcare employees and former employees may also be able to come forward under the qui tam provisions of the False Claims Act. These provisions apply primarily to fraud under Medicare, Medicaid, Tricare, and other federal benefit programs, and they provide for the issuance of whistleblower rewards in appropriate cases.
What Should I Do if I Have Information About Healthcare Fraud?
With all of this in mind, what should you do if you have information about fraud, waste, or abuse in federally funded healthcare? To ensure that you are making informed decisions, you should consult with an experienced attorney promptly. Talking to an attorney should not cost you anything in this scenario; and, if you decide to blow the whistle, your attorney will be able to file a complaint on your behalf with an authorized recipient.
