How to Avoid Whistleblower Cases

Whistleblowers are an increasing threat to the healthcare industry. Under the False Claims Act, a single person has the power to “blow the whistle” on behalf of the government, and expose an organization’s liabilities if it is believed that wrongdoing has taken place.

An employer’s best defense against whistleblower complications is prevention. Below are some preventative measures you can take to help protect your organization and workforce:

Develop a compliance program. An effective compliance program can help prevent whistleblower cases from occurring. The benefits of developing a compliance program are two fold: a program will serve as protection, and help improve overall operations, but may also help regulators determine that a whistleblower’s claims are unfounded.

Employers should focus on proactive measures within a program. The program should include all the applicable local, state, and federal requirements, and also take into account the organization’s greatest liabilities. Talk to peers, keep a pulse on the news, and analyze issues that consistently reside under regulators’ microscopes: doing so will help you determine where a whistleblower may strike.

For more information on how to create a program for your organization, read Creating an Internal Healthcare Compliance Program.

Government contracts. Organizations need to be prudent in all government contract interactions. This applies to both billing scenarios and contracts with contractors. For billing purposes, organizations must be accurate and thorough in their reporting of line items, service fees, surcharges, and so forth. This is non-negotiable, and if not followed can directly lead to a violation.

Many False Claim Act liabilities reside within the government contract arena. Depending on contract complexity between the government and a healthcare organization, it may make sense to hire an expert who specializes in government contracting. If there is any question, seek the appropriate legal guidance.

Employee relations. Disgruntled employees produce the highest volume of whistleblower cases every year. Employers should take this fact seriously. Create a positive environment that encourages open communication. Keep in mind that most employees need to feel that their contributions within the organization are valued. Happy employees usually have no reason to blow the whistle.

Training. Make sure that all employees receiving periodic training on code of conduct, policies, and regulatory requirements. Remember that if a whistleblower investigation were to arise, anyone would be fair game. Employees need to understand the importance of polices and requirements, and how they apply to applicable law.

For managers and supervisors, this includes training on whistleblower rights. Make sure managers and supervisors educate employees on their rights under the False Claims Act. Ongoing training for your entire workforce should be a non-negotiable.

Discipline. Disciplinary measures should be enforced to ensure compliance with internal policies, and applicable regulatory requirements. Code of conduct and regulatory compliance especially applies to licensed individuals. In the event your organization is under investigation, accountability oftentimes falls upon the licensed individuals providing care, but not always. Make sure disciplinary procedures are developed and enforced throughout the entire organization.

Reporting options. Employers can ease communication and protect themselves and their employees by offering reporting options. Designate multiple employees throughout the organization or each department to intercept employee concerns as they arise. Also create an anonymous reporting mechanism, such as a hotline.

Remember that all employees have rights under the False Claims Act. To remind employees of their rights, post the Whistleblower Protection Poster throughout the workplace. If an employee needs to address a concern, you want them to feel comfortable doing so. By encouraging open communication and reporting, you can help prevent whistleblower liabilities from escalating out of control.

Conclusion

Whistleblower cases have become increasingly problematic for healthcare employers. Employers should understand that no one is immune: every employee, contractor, and organization is vulnerable to whistleblower liabilities. Your best bet is preventing whistleblower complications from occurring in the first place.

Despite all your best preventative efforts, there are no guarantees. If you suspect a violation exists, address it immediately. Seek the proper counsel, conduct an investigation, and determine the validity of the employee’s claim. Whatever you do – do not sweep the issue under the rug, or push it off to human resources before a thorough evaluation! You can bet that if you do not handle the issue, the whistleblower will make his or her concerns heard elsewhere. Save yourself some time, cut your losses, and deal with all matters immediately.

The article is designed to offer an informative overview on ways to prevent whistleblower liabilities. For specific advice on individual circumstances, seek the appropriate legal counsel.

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