The Whistleblower Protection Act of 1989 is federal legislation that protects whistleblowers who are or were employed by the government and who report a federal employee responsible for illegal activity, abuse of authority, or mismanagement within their agency. Because the federal government has several different agencies that are related to the provision of healthcare and providing insurance coverage for it, the Whistleblower Protection Act is frequently invoked by people in the healthcare field.
In this article, Dr. Nick Oberheiden, founding partner of the national whistleblower law firm Oberheiden P.C., reviews some of the basic elements of the act and what you need to know before deciding whether to move forward as a whistleblower.
There are Numerous Federal Healthcare Agencies
The field of healthcare is extremely broad, so it should come as no surprise to learn that there are numerous federal agencies that touch on it in some way. However, many people – even those within the federal government – fail to appreciate how many of them there are. Just a few include the following:
Whether it’s approving pharmaceuticals or medical devices for use by the public, providing financial coverage for healthcare through government programs like Medicare, Medicaid, or Tricare, or actually providing that healthcare to veterans of the U.S. Armed Forces, federal agencies play a huge part in how healthcare gets provided in the United States.
This means that the workers in those agencies have access to potentially incriminating or damning information about healthcare fraud or mismanagement that can lead to whistleblower claims. The Whistleblower Protection Act and the Whistleblower Protection Enhancement Act insulate them from workplace repercussions if they choose to make that information a protected disclosure.
The Act Does Not Just Protect Federal Employees
Because the point of the Whistleblower Protection Act is to help people bring important and damaging information to light, the whistleblower protections take a very broad approach as to who is considered an “employee” of the federal government. It does not just cover actual, current healthcare workers who are in a standard employment relationship with a federal healthcare agency. Instead, it also includes:
- Former employees
- Prospective employees
- Employees on probationary terms
- Job applicants
- Temporary employees under a federal contract
While independent contractors may not benefit from the protections of the Act, they are also less likely to suffer the sorts of adverse employment actions that employees can face.
Even Retaliation That Falls Short of Termination is Prohibited
Similar to the Military Whistleblower Protection Act, federal employees in the healthcare field who blow the whistle on misconduct are protected from workplace retaliation. The Act refers to these acts of retaliation as “personnel actions” (5 U.S.C. § 2302(b)), and it prohibits them even if they are merely threatened against a whistleblower. Personnel actions that would be beneficial to the whistleblower, but are withheld due to his or her whistleblowing activities, are also forbidden by the Act.
Under 5 U.S.C. § 2302(a)(2)(A), personnel actions include:
- Promotions
- Appointments
- Disciplinary or correction actions, up to and including suspensions and job terminations
- Transfers or reassignments
- Reinstatements
- Performance evaluations
- Any other significant change in duties, responsibilities, working conditions, pay, or benefits
Importantly, though, these personnel actions must be made in relation to your whistleblowing activities. It is up to you to prove to a designated agency official or other law enforcement agency that they were.
The Act Protects Blowing the Whistle on All Kinds of Misconduct
The information that you have uncovered does not necessarily have to indicate that laws are being broken for the Act’s protections to apply. Unlike some other whistleblower laws, the terms of the Whistleblower Protection Act cover:
- Violations of a law, regulation, or rule
- Gross mismanagement
- Gross waste of federal funds
- Abuse of authority
- Substantial and specific danger to public health or safety
Therefore, just because what you have found would not be evidence of a crime does not mean that it is not reportable; or that a disclosure based on a reasonable belief will not trigger your legal protections. However, it certainly helps if a law under the Occupational Safety & Health Act is being broken. Blowing the whistle on a federal healthcare agency’s waste of funds only triggers the Act’s legal protections of your conduct if it is a gross waste of funds – the amount matters.
The same can be said for agency mismanagement: Minor or even significant instances or practices of mismanagement may not trigger workplace protections. They have to amount to a gross mismanagement of the agency’s personnel or funding.
Whether financial or personnel mismanagement or waste amounts to a “gross” amount can be debatable, as can whether a danger to public health or safety is a “substantial” one or not. However, just because it would not amount to a crime does not mean that you cannot blow the whistle on it and benefit from federal protections under the Whistleblower Protection Act or False Claims Act.
The Evidence Does Not Need to be Complete or Final
Finally, the information that you want to bring to light does not need to be enough to prove guilt beyond a reasonable doubt or even enough to completely support a criminal or civil case against the healthcare law enforcement agency or an officer within it. Instead, the Whistleblower Protection Act only requires that the information that you bring to light be something that you “reasonably believe evidences” a violation of law or indicates sufficient mismanagement under the Act.
According to Dr. Nick Oberheiden, a leading healthcare whistleblower lawyer at Oberheiden P.C., “People who find evidence of healthcare fraud or mismanagement of funds in a federal healthcare agency should not be concerned if the information that they have found does not paint the complete picture. Taking your case to a whistleblower lawyer is just the first step in a lengthy process that will include months or potentially even years of further investigation. It is also not uncommon for whistleblowers to come forward with information that has been missing from another, similar case for a long time. Just because you cannot prove your case with certainty is not a reason to sit on the information that you have found.”
