No matter how you feel about Edward Snowden, his story is one of the hottest going in the world today. Snowden is a whistleblower who felt compelled to publicly disclose information he had concerning actions by the U.S. government. The saga of Snowden, who is now an international fugitive, has been in newspapers and media news stories constantly in recent weeks. What does this have to do with laboratory compliance? Many laboratory compliance officers and administrators worry that a whistleblower may be working in their facility, copying files and documents to use against the laboratory in a legal action, and if they aren’t worried, they should be. Many people view whistleblowers in a negative way. However, statistics show that many health care whistleblowers are conscientious people who feel that if they don’t speak out patients at their facility may be harmed in some way. The percentage of False Claims Act (FCA) actions that are either a result of a whistleblower suit or were initiated by a whistleblower suit is in the high 90 percent range. A whistleblower is a private person who brings a qui tam action, a lawsuit, against another who has defrauded the federal government by knowingly presenting a false claim for payment. Qui tam actions are part of the FCA. In 1986, Congress amended the FCA to make it more lucrative to file a suit and added other provisions to protect whistleblowers, known as qui tam relators, from retaliation by the person or entity against whom the suit was filed. Whistleblowers often are employees of the company; however, they can be a competitor, a customer, a government employee, or a variety of other private individuals and groups. In other words, pretty much anyone who interacts with a laboratory could be a whistleblower. These qui tam lawsuits are filed under seal, which gives the government an opportunity to join the suit. If the government chooses not to join the lawsuit, the whistleblower may continue on his or her own. Whistleblowers who win their lawsuits are entitled to 15 percent to 30 percent of the recovered funds and other costs and attorneys’ fees. In the past, if the government chose to not intervene in the lawsuit, the whistleblower might just give up. Even if the government believes a whistleblower action has merit, its own limited resources may prevent it from intervening in the case. In the current environment, many private individuals go forward with their cases even if the government decides not to intervene. There are plenty of resources available to them to guide them and improve their chances of winning their case. If you doubt that, do an Internet search using the terms “whistleblower attorney support.” According to statistics from Taxpayers Against Fraud Education Fund (TAF), fiscal year 2012 was a record year for FCA recoveries. Last year also saw an increase in state FCA recoveries. Thirty states have false claims acts of their own. Eight are Medicaid-only false claims acts, and 13 states laws provide an additional 20 percent to 35 percent reward. According to TAF, the bulk of FCA cases currently are in health care at both the state and federal level. A chart on the TAF Web site lists the top 30 FCA actions in 2012, of which 28 were initiated by whistleblowers. There is no doubt that federal prosecutors believe that investing in whistleblowers is an important tool in their arsenal in the fight against Medicare and Medicaid fraud and abuse. Retaliation Can Be Costly
To underscore the importance the government and juries place on protecting whistleblowers, take a look at Doculan v. Bayonne Medical Center
. In this case, a hematology technician who was a 20-year employee of the medical center reported to his supervisors, human resources, and upper management that he believed the staffing practices in the blood bank did not meet the requisite credentials set forth in the New Jersey State Sanitary Code and other regulations that govern the laboratory. Most of his complaints went unanswered or unresponded to and eventually Doculan became the subject of repeated disciplinary events as a result of actions by the blood bank supervisor against him. His complaints were focused on her department. Eventually he was fired. After his termination, Doculan contacted the New Jersey Department of Health, which subsequently investigated the laboratory, substantiated his allegations, and directed the hospital to create an acceptable plan of correction. For our purpose, the details in the court documents are not as important as the result. After a six-day trial, an eight-member jury unanimously awarded the plaintiff $80,640 in lost wages, $60,000 for pain and suffering, and $2 million in punitive damages totaling $2.14 million. An effective plan to address whistleblowers would have prevented this action. Whistleblower: Friend or Foe?
Some laboratories have set up programs designed to avoid whistleblower lawsuits. These programs encourage employees who have complaints or who think that they have found a problem at the laboratory or the hospital to report them. Many companies encourage employees to report problems but then don’t follow up or provide feedback to the reporting employee. Many complaints and problems are a result of employees, competitors, customers, or others not understanding either the laws and regulations or company policy concerning whatever their complaint is about. In some cases they have been misinformed about an incident or misunderstood something they saw or heard. If ignored, these things have a way of festering, particularly if they are reported in good faith and no one has responded to them, which was precisely the case with the hematology technician in New Jersey. Laboratories that see whistleblower reports as an opportunity to detect and correct problems within their laboratories and hospitals are actually strengthening their compliance programs and reducing the risk of small problems becoming large problems, as well as reducing the risk of a whistleblower action against their laboratory. Mitigating Whistleblower Risk
The most important whistleblower prevention tool in the laboratory’s arsenal is communication. Make sure that lines of communication between employees and management, and communication between members of the management team, are always open and always receptive. Encouraging employees to report problems and then not providing positive feedback may do more damage than good. Active listening, good eye contact, taking notes, and other demonstrations of serious interest are all good ways to encourage employees to report problems. Make sure that the supervisory staff, including the management team, understands the importance of keeping promises that they make to employees, including the promise, “I’ll get back to you and let you know what happened with this.” Whether the management team’s interview with an employee is positive or negative, it will be discussed among employees and the tone will be set, so be careful when communicating with employees. There are a number of things that the management team must be paying attention to as well. There should be policies and procedures regarding how complaints are handled and some kind of guidance or criteria that is used to determine if the complaint has a compliance implication. If the employee who receives the complaint is uncertain of its compliance implication, he or she should seek the compliance officer’s guidance or opinion. Managers and supervisors should be very aware of security procedures in the laboratory. They should not leave confidential documents lying around on their desk when they are not in their office. They should make sure that filing cabinets are locked and passwords are kept secure. The laboratory should also have policies and procedures in place to ask about compliance problems and issues during performance reviews and any other opportunity where interaction with employees occurs. This is especially true for interactions involving disciplinary problems. The laboratory should also conduct exit interviews, part of which should be addressing any known compliance problems or issues that the employee would like to report. One important aspect of preventing whistleblowers is to identify potential whistleblowers as early as possible. One of the things to look for during the hiring process is to be aware of potential employees who change jobs often. Be particularly aware of sales and marketing employees and experienced billing employees. Make sure to check references to the extent possible. During early employment watch for employees who complain often about compliance issues or other kinds of issues. Always follow up with these employees. Train supervisors to be aware of aberrant behavior like an excess of questions about things like billing and other compliance problems and issues. Be aware of employees who stay late after work or come in on off times but seek no additional pay. Make it a point to do three-month evaluations and ask if the employee has noticed any kinds of compliance issues or is aware of any. Just remember: Whistleblowers can be a serious risk or a great opportunity depending on how your laboratory chooses to deal with them. Christopher Young, CHC, president of Laboratory Management Support Services, can be reached at firstname.lastname@example.org