Protection from Within

Every home care company must protect itself from problems caused by whistleblowers. When insiders communicate to the government ongoing or recurring problems that they have discovered, this can cost an HME supplier much money, time, stress and governmental troubles. One key solution to the problem of whistleblowers is for a home care company to launch and operate an effective compliance program.

Here’s why. First, whistleblowing often occurs because personnel (or other insiders) believe that the home care company does not value their input, nor their concerns about company compliance. Because an effective compliance program must, by definition, include a mechanism for encouraging and acting on personnel tips about compliance problems, the staff member will probably not be ignored when he or she brings information about internal problems to the company’s attention.

Also, because fewer problems remain unresolved, there is less motive and opportunity for qui tam action under the Federal False Claims Act, or for government hotline reporting under HIPAA. When a home care company fixes a problem quickly, it’s hard to argue that the company had any “intent to defraud” the government.

Second, a compliance program can reduce the dangers of whistleblowing even when the company declines to resolve the problem to the reporting staff member’s satisfaction. Nothing requires a compliance program to eliminate every problem, or a home care company to choose a solution or form of discipline that satisfies the reporting staff member. When personnel feedback leads to a reasonable investigation and reasoned response to the identified problem, the company will usually be insulated from fraud liability.

Violations of the law certainly can occur notwithstanding an effective compliance program. But, the qui tam opportunities for whistleblowers are available only when the wrongdoing creates false claims, not merely inadvertent or negligent errors. Even when the home care company fails to eliminate errors or problems that create reimbursement violations, the fact that the company utilized an effective internal mechanism to address these sorts of problems will make it very difficult to characterize the wrongdoing as creating false claims permitting qui tam relief.

A third reason an effective compliance program can reduce or eliminate whistleblowing concerns the importance of following proper procedure. One of the cornerstones of an effective compliance program is that all company personnel, from the CEO to billing entry clerks, must embrace the policies, protocols and underlying ethical philosophy that the program establishes for identifying and resolving problems. A staff member who bypasses the home care company’s internal reporting mechanisms and instead seeks qui tam rewards may be held accountable for failing to follow the company’s own rules for internal reporting and problem-solving.

In addition, such insubordinate action could expose the staff member to disciplinary action (ironically, as part of the company’s compliance program) for failing to follow its rules regarding problem reporting.

One key caution: The disciplined staff member will allege that the organization does not have an effective compliance program, one that satisfies the government’s requirements. So any company that pursues sanctions against an insubordinate whistleblower must be confident that its compliance program will withstand scrutiny. There is also some question as to the enforceability of certain employment provisions that seek to punish a whistleblower.

The fourth reason an effective compliance program can reduce or eliminate whistleblowing is because it helps the home care company show respect for its personnel. Most staff members who develop negative attitudes about their company do not insist that it agree with everything they say, nor implement solutions that mirror precisely the staff members’ preferred solutions. Instead, most staff members want their opinions to be valued, respected and carefully considered.

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.