Made, Not Born

Home care companies should fear whistleblowing! Finger-pointing by employees, former employees, contractors, etc., exposes home care companies to the risks of qui tam litigation, costly investigations and substantial fines and penalties. A home care company should embrace three truths about the creation of whistleblowers:

Truth #1: Whistleblowers are made, not born

A whistleblower rarely joins a company in order to undermine it. A whistleblower is rarely lured into the lucrative field of whistleblowing with a secret plan to seek wrongdoing in order to report it.

Rather, the most common reason for whistleblowing by present and former personnel is because they believe their home care employers do not value their input nor their concerns about company compliance. Billing questions are unanswered. Concerns about the employer’s “Let’s learn the rules as we go” attitude are ignored. Discussion leads to the staffer being branded a “troublemaker.”

This general perception of indifference or hypocrisy then interacts with whatever specific incidents triggered the staff member’s feeling of unfair treatment and disrespect. It is this combination of factors that will frequently encourage the staffer to seek vindication (and financial reward) by telling the government about the very problems he or she tried to discuss with the organization.

Truth #2: Anyone may become a whistleblower

Many home care companies conclude that they face no whistleblower dangers because their people are happy and fulfilled. This attitude can be dangerously naive. First, the extent of an employee’s dissatisfaction may be hidden. Second, the internal attitude problems or poor communications that lead to compliance problems may also mean that management personnel are out of touch with the needs, concerns and perceptions of front-line personnel.

Third, the universe of potential whistleblowers is far, far broader than disgruntled current employees. In addition to a company’s current staff, any of the following categories of potential whistleblowers may lurk in its neighborhood: disgruntled past employees; disgruntled independent contractors, past and present; competitors, past, present and future; co-owners; collaborators and co-venturers in financial transactions; angry spouses, relatives and significant others; consultants, accountants and billing companies; attorneys from the plaintiff’s bar; or compliance personnel who are thwarted from performing their duties.

It certainly is true that many HME companies have deeply loyal staffers. But that is not enough.

Truth #3: Once someone wants to become a whistleblower, powerful tools are available

Once someone is ready to consider becoming a whistleblower, attractive resources make it easy for them to act. First, qualified whistleblowers can seek large financial rewards under the federal False Claims Act. This statute provides that any person who knowingly submits a false claim for payment to the federal government is liable for a civil penalty and treble damages. In 1986, Congress amended the act to add a “qui tam” provision that enables a private party to bring suit against a provider who has submitted false claims.

The financial costs under the various fraud and abuse laws frequently involve fines and penalties in additional to repayment, so the potential reward for a qui tam relator can be substantial, and thus provide a strong incentive to become a whistleblower. Organizations such as Taxpayers Against Fraud and Internet Fraudwatch encourage further whistleblowing opportunities, and lawyers skilled in representing whistleblowers advertise prominently on the Internet.

Finally, be aware that a number of states — including Florida, Illinois and California — have false claims laws that contain qui tam provisions similar to the provisions under the federal False Claims Act.

Before you shrug off sloppy management practices, remember: Big Brother is watching you. But Little Brother may be watching as well.

Neil Caesar is president of the Health Law Center (Neil B. Caesar Law Associates, PA), a national health law practice in Greenville, S.C. He also is a principal with Caesar Cohen Ltd., which offers compliance training, outsourcing and consulting and the author of the Home Care Compliance Answer Book. He can be reached by e-mail at [email protected] or by telephone at 864/676-9075.