In fiscal year 2013, a record 752 whistleblower suits were filed, and the government brought in $2.9 Billion in recoveries, with whistleblowers taking home $345 Million. These numbers may have compliance officers and others within provider organizations feeling like sitting ducks, just waiting for their turn to get hit. And who can blame them with examples like these making the news:
a $28.1 Million jury assessment against an Illinois nursing home owner and a $400,000 reward for the two nurses who brought the suit alleging false claims for substandard care;
- $30 million paid to resolve anti-kickback allegations (therapy co paid approx $500,000 in exchange for a therapy services contract at a nursing home chain). The whistleblower, a competitor, will receive $5.7 Million;
- $48 million against a skilled nursing provider for knowingly submitting claims for medically unnecessary rehab therapy; whistleblower rewards are between 15% and 25%;
- NH and therapy company paid $700,000 for false claims for excessive, medically unnecessary or otherwise non-reimbursable therapy services to 37 Medicare beneficiaries. Two former employee-therapists will receive $122,000 as whistleblower rewards.
The high dollar amounts being paid to whistleblowers in recent enforcements are strong motivation for healthcare workers and others to file whistleblower suits.
Despite the surge in whistleblower cases and recoveries, the OIG and CMS have made it abundantly clear that litigating is not their chosen method for collecting what CMS is owed. Woven throughout OIG compliance guidelines for nursing facilities are numerous references to reporting. For example, the OIG guidance explains that providing “a mechanism to encourage employees to report potential problems and allow for appropriate internal inquiry and corrective action is one of the benefits of a compliance program.” Other benefits listed in the guidelines include that, through early detection and reporting, loss to the Government from false claims is minimized, and the nursing facility’s exposure to civil damages and penalties, criminal sanctions, and administrative remedies is reduced.
So, how should we proceed? There are a number of measures, all found in the guidelines, that can directly reduce the chances of being hit with a whistleblower case:
1. Make internal reporting mandatory; and when a report comes in, investigate it immediately and promptly self-report overpayments. Reports should be kept anonymous if requested.
2. Establish a culture of compliance. This means displaying an open, transparent demeanor, one that welcomes internal reports—from the top down. This also means showing that compliance and ethics are priorities in the organization; rewarding internal reporting; and establishing and fairly enforcing discipline for failure to report.
3. Publish your hotline boldly and frequently. Let everyone know you are proud of your compliance program.
4. Train to make sure employees know what to look for and where to report it.
5. Retaliation for internal or external reporting should be strictly prohibited. Any form of retaliation against a whistleblower can result in additional litigation and high-dollar damages.
Avoiding false claims in the first place is the first measure of defense against whistleblower suits. Early detection and internal reporting in conjunction with an environment of openness and transparency are strong program components for avoiding false claims and preventing whistleblower suits.