The Truth About Protection of Whistleblowers in Hospice Kickback Cases

February 7th, 2018 by Mike Bothwell

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The protection of whistleblowers is very important in False Claims Act legal actions.

protection of whistleblowersWhen fraud against the federal government occurs, the protection of whistleblowers becomes critical. This is because about 80% of False Claims Act fraud cases originate from a whistleblower. Why so many? Much of the fraud is well hidden and therefore unknown to the federal government. However, someone on the “inside” usually knows about it. In situations where the federal government is aware of fraud, it may not have the evidence to prove it. Again, those on the “inside” can usually find the evidence.

Whistleblowers are important to a federal government’s False Claims Act action against the violator. Therefore, it’s easy to see how the whistleblower could be the victim of retaliation, especially in cases involving kickbacks and hospice care providers. Luckily, there are special protections. Yet, they don’t always work as well as a whistleblower might hope.

Whistleblower Protections: Qui Tam Actions Begin in Secret

The False Claims Act contains various provisions that provide protections for a whistleblower. The first line of defense is the secrecy of a qui tam action when it begins.

A qui tam action is a lawsuit brought by the whistleblower (also called a relator) where the whistleblower sues the violator (often the whistleblower’s employer) on behalf of the federal government. Any of the stolen money the whistleblower can recover goes to the federal government, less a certain percentage as a reward to the whistleblower. This percentage ranges between 10 and 30 percent.

When a qui tam action begins, the whistleblower must file the complaint “under seal.” This means the whistleblower files the complaint in secret. Only the federal government and the court know about the lawsuit. One reason for this secrecy is to protect the identity of the whistleblower while the government investigates the basis of the qui tam action and assesses whether it will take over the case.

Secrecy Has Limits

This secrecy doesn’t last forever. It only lasts for 60 days, although an extension is possible if the government wants additional time to investigate the fraud. Even then, once the case proceeds to trial, things change. It’s very likely the defendant in the qui tam action will be able to figure out who the whistleblower is because the whistleblower will likely be a key federal government witness in the case.

But in many cases, the defendant discovers the whistleblower’s identity before the qui tam action ever gets to trial. Once the federal government begins investigating the alleged fraud, the defendant will know something is up. They’ll realize the investigation probably began with the help of an inside person. Perhaps the whistleblower previously warned the defendant about the fraud. Or maybe they’re the only person with access to information that the federal government now knows. The defendant can often put two and two together. When this occurs, the whistleblower can assume he or she will endure some form of retaliation. Luckily, the False Claims Act has anti-retaliation provisions that make this retaliation illegal.

Whistleblower Protections: Anti-Retaliation Provisions

The False Claims Acts makes it unlawful for an employer to retaliate against a whistleblower. This retaliation can take the form of discrimination, harassment, threats, demotion, firing and pay cuts.

If a whistleblower can prove retaliation, they can get their job back plus double back pay, special damages, interest and attorney’s fees. On paper this is great. But the reality doesn’t work as well, and there are several reasons for this.

First, it’s not always easy to prove retaliation.

An employer might fire the whistleblower. If the whistleblower has a history of poor performance, the employer can make the plausible argument that the firing has nothing to do with retaliation. This may not be true. But it creates enough doubt as to the reason of the whistleblower’s firing to prevent a court from concluding the employer is guilty of unlawful retaliation.

Second, let’s say the whistleblower can prove illegal retaliation.

The potential relief often isn’t worth the consequences. For example, is a whistleblower who suffers retaliation really going to want to still work at the same employer that just tried to fire him or her? What if the whistleblower wants to continue working for the employer. Can the whistleblower expect fair treatment, as if nothing happened? The answer to both these questions is usually “no.”

But working somewhere else is not always possible because now the whistleblower has a reputation for being “untrustworthy.” Even though the whistleblower did the right thing, they may face challenges. Few companies want to hire someone they know has a reputation for going behind the employer’s back and reporting something to the federal government.

The harsh reality is that the False Claims Act’s anti-retaliation provision helps. It can reduce the pain or harm a whistleblower endures. But it rarely provides for the perfect protection of whistleblowers, especially in the hospice care industry.

Thinking about Becoming a Whistleblower?

Contact the Bothwell Law Group by calling 770.643.1606 today. Let our firm’s skilled attorneys explain the protection of whistleblowers so you can make a wise choice.

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