Whistleblower Protections: Is it Worth the Risk?

There has been a great deal in the news lately about whistleblowers. Specifically, the whistleblower who triggered the impeachment investigation into President Donald Trump.

Since the whistleblower filed his or her nine-page memo outlining information received from “multiple sources†that the president was “using the power of his office to solicit interference from a foreign country in the 2020 U.S. election,†discussions have ensued as to whether the whistleblower has the right to retain anonymity, as well as the other protections guaranteed.

This certainly has raised some questions about whether or not it is worth the risk to file a whistleblower lawsuit and face the prospect of having your life turned upside down.

When someone files a whistleblower complaint, they do so with the belief that their identity will be protected and that there will be no retaliation as a result. However, that’s not necessarily the case.

The Whistleblower Protection Act of 1989 offers whistleblowers some protection from criminal prosecution and retaliation. However, anonymity is not necessarily guaranteed. Whistleblower protection laws are complex and vary from case to case, agency to agency, so it’s always best to consult professional legal counsel.

In the case of those reporting healthcare fraud under the False Claims Act, the qui tam provision is one of the strongest whistleblower protection laws in the country. The identity of a healthcare whistleblower (also referred to as a relator), will be kept confidential for as long as a case is under seal.

Under the False Claims Act, a seal must remain in place for at least 60 days, although it’s often kept under seal longer while the case is being fully investigated. Should the government decide to intervene, the case will be unsealed and the relator’s identity will become public. The government doesn’t always intervene, and if it doesn’t, then the relator must decide if he or she will continue with the case, or dismiss the claim.

Whistleblowers play a significant role in helping to stem the tide of healthcare fraud. They often are on the front lines, witnessing first hand who is committing fraud and how. The types of fraud varies from billing for and/or performing unnecessary medical procedures or tests, to kickbacks. Whistleblowers have played a significant role in the recovery of billions of dollars in taxpayer money.

The U.S. Department of Justice reported that it obtained more than $2.8 billion in settlements and judgments from civil cases involving fraud and false claims against the government in the fiscal year ending Sept. 30, 2018. Of that, $2.5 billion involved the healthcare industry, including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians. DOJ noted that the largest recoveries came from the drug and medical device industries.

Most recently, as we wrote about in August, the DOJ intervened in a qui tam lawsuit filed against a medical device maker, along with the company’s founder and VP for Business development.

However, as we also wrote about in September, the government doesn’t always decide to intervene, and in some cases have sought the dismissal of a qui tam lawsuit.

Anyone with evidence of fraud against federal programs (i.e. Medicare, Medicaid or TRICARE) can file a qui tam or whistleblower lawsuit. However, if a False Claims Act lawsuit based on the same evidence has already been filed, then a whistleblower lawsuit cannot be filed.

Under the False Claims Act, a whistleblower case must be filed within the latter of the following two time periods: Six years from the date of the violation of the act; or three years after the government knows, or should have known, about the violation. However, it cannot be longer than ten years after the violation of the act.

While a relator’s identity can be revealed, Section 3730(h) of the False Claims Act does offer protections from retaliation. Any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the False Claims Act is entitled to all relief necessary to make the employee whole. Such relief may include:

• Reinstatement
• Double back pay
• Compensation for any special damages including litigation costs and reasonable attorneys’ fees

Whistleblower cases are complex and there are many challenges associated with the filing, as well as the defense of, these cases. The Health Law Offices of Anthony C. Vitale is known for its representation of whistleblowers, as well as our ability to defend those who are the target of a whistleblower action. Contact us for additional information at 305-358-4500 or send us an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.