Penalties for False Claims Aren’t the Only FCA Risk to Avoid

By Kelly A. Briganti, Editorial Director, G2 Intelligence

In the last two issues of Lab & Pathology Insider we highlighted new developments concerning the False Claims Act (FCA): the U.S. Supreme Court decision recognizing the implied certification theory of liability and the Department of Justice’s announcement of increased penalties under the FCA.

But there’s another issue with FCA compliance that isn’t new that should also be getting your attention: whistleblowers and how you handle them in your lab. The FCA also includes provisions that bar labs and other providers from taking adverse employment action in retaliation against individuals who blow the whistle on false claims violations. All lab personnel need to be aware of the situation and avoid inadvertently giving rise to potential claims of retaliation. But labs also have to manage their workplace and whistleblower’s protection isn’t unlimited.  Here are five things labs should be doing to avoid FCA penalties for retaliating against a whistleblower:

• Implement a non-retaliation policy
• Make all staff aware of the policy and strictly enforce it
• Limit employees access to protected information. Whistleblowers don’t have carte blanche to use private, confidential records—such as HIPAA-protected records as well as trade secret and proprietary business information—to support their qui tam claims
• Always follow normal disciplinary procedures consistently when disciplining all employees—to avoid any clams that whistleblowers may have been treated differently.
• Keep detailed disciplinary records of any action taken

For more practical guidance on how to avoid False Claims Act liability and other fraud and abuse compliance issues, see Lab Compliance Essentials 2017: Managing Medicare Fraud & Abuse Liability.