Healthcare Whistleblower Protection Act (September Update)

The Whistleblower Protection Act Protects Those in the Healthcare Industry Who Come Forward with Information About Fraud, Waste, and Abuse

Healthcare is among the most important industries in our society. Every day, people rely on doctors, nurses, in-home caregivers, testing labs, and other healthcare professionals and facilities to help them live comfortable and fulfilling lives. Everyone needs healthcare—and, as someone who works in healthcare, you play an important role in many people’s everyday lives.

Unfortunately, while healthcare providers and facilities do a lot of good, they also do some not-so-good things in some cases. Statistics show that fraud, waste, and abuse are major problems in the healthcare industry. Medicare and Medicaid fraud cost taxpayers more than $100 billion annually; and, by some estimates, fraud perpetrated under federal healthcare grants and contracts as well as against insurance companies, patients, and other private parties doubles this figure.

Whistleblowers in the Healthcare Industry Are Entitled to Clear Protections

As a result, if you are thinking about blowing the whistle on fraud, waste, or abuse in the healthcare industry, you are not alone. Whistleblowers play a key role in preserving the integrity of the healthcare system and protecting patients, insurers, and government healthcare programs. The U.S. Department of Health and Human Services (DHHS) relies on whistleblowers to help it take action when necessary.

If you have concerns about what might happen if you come forward, you are not alone here, either. Many people have concerns about losing their job or facing other forms of retaliation if they blow the whistle on their employer. But, there are several federal laws that protect whistleblowers, and the Whistleblower Protection Act of 1989 specifically protects federal employees and healthcare employees who work for employers that rely on federal funds.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

What Healthcare Providers and Employees Should Know About the Whistleblower Protection Act

The Whistleblower Protection Act protects whistleblowers who work for federal contractors, subcontractors, and grantees. It also protects employees of DHHS and other federal agencies. Under the Whistleblower Protection Laws, private and public employers are prohibited from retaliating against whistleblowers—as long as whistleblowers take the necessary steps when they come forward.

The Department of Health and Human Services has published several resources for potential whistleblowers. These resources make clear that DHHS relies heavily on whistleblowers—and that it is committed to helping protect public-sector and private-sector employees who choose to come forward. These resources also explain the steps involved in blowing the whistle on fraud, waste, and abuse in the healthcare industry.

Under the Healthcare Whistleblower Protection Act, healthcare workers who engage in protected activity—including reporting wrongdoing, exposing fraud, or making such disclosures to authorized officials—are entitled to strong employment rights and legal safeguards. These whistleblower laws are designed to shield individuals from whistleblower retaliation, allowing employees to file retaliation claims or pursue whistleblower claims if their employer takes adverse action after they report concerns under the statute.

Protected Disclosures Under the Healthcare Whistleblower Protection Act

For example, on its Whistleblower Information Page, DHHS explains the two major criteria for making a “protected disclosure” under the Whistleblower Protection Act. To establish an employee’s right to whistleblower protections under the law:

• “The disclosure must be based on a reasonable belief that the alleged wrongdoing has occurred. . . . [T]he definition of wrongdoing varies slightly depending upon your place of employment.”
• “The disclosure must be made to a person or entity that is authorized to receive it (i.e. authorized recipients). Employees who reasonably believe they have evidence of wrongdoing are always protected for submitting information to the OIG Hotline. However . . . there are some limitations as to who is authorized to receive a disclosure depending upon your place of employment.”

At Oberheiden P.C., we help healthcare workers understand their options and make informed decisions when they have information about fraud, waste, or abuse. A whistleblower lawyer at our firm can explain whether the information you have in your possession qualifies under the Whistleblower Protection Act—and, if it does, we can assist you with making a protected disclosure. We will hold your identity and information in strict confidence, and we will not share any information unless you specifically authorize us to do so. We are on your side, and we are here to help you feel comfortable and confident as you move forward.

Types of Protected Disclosures and Authorized Recipients By Employment Status

As DHHS explains, the requirements for making a protected disclosure under the Whistleblower Protection Act depend, in part, on your employment status. Under the laws, all potential whistleblowers fall into one of three categories:

1. Employees of DHHS Contractors, Subcontractors, and Grantees

Employees of DHHS contractors, subcontractors, and grantees are protected under the Whistleblower Protection Act when they make “protected disclosures” to the appropriate federal authorities. The types of information that qualify these employees for protection under the statute include:

• Abuse of authority relating to a federal contract or grant
• Censorship related to scientific research or analysis
• Gross mismanagement of a federal contract or grant
• Gross waste of federal funds
• Substantial and specific danger to public health or safety
• Violation of a law, rule, or regulation related to a federal contract or grant (including competition for or negotiation of a contract)

To qualify as a protected disclosure under the Whistleblower Protection Act, an employee of a DHHS contractor, subcontractor, or grantee must make the disclosure to one of the following individuals or entities:

• A court or grand jury
• Authorized official of the U.S. Department of Justice (DOJ) or another law enforcement agency
• DHHS’s Office of Inspector General (DHHS OIG)
• Federal employee responsible for contract or grant oversight or management at the relevant agency
• Government Accountability Office (GAO)
• Management official or another employee of the contractor, subcontractor, or grantee responsible for investigating, discovering, or addressing fraud, waste, and abuse
• Member of Congress or a representative of a Congressional committee

2. Civilian Employees of DHHS

Civilian employees of DHHS can also qualify for protection under the Whistleblower Protection Act. However, the types of wrongdoing they can disclose and the individuals and entities to which they can make their disclosures vary slightly from those for employees in the private sector. The types of wrongdoing civilian employees of DHHS can disclose under the Whistleblower Protection Act include:

• Abuse of authority
• Censorship related to scientific research or analysis
• Gross mismanagement
• Gross waste of funds
• Substantial and specific danger to public health or safety
• Violation of any law, rule, or regulation

The individuals and entities to which civilian employees of DHHS can make protected disclosures include “anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” When dealing with information that is classified or otherwise protected, DHHS employees may only disclose the information to DHHS OIG, the Office of Special Counsel (OSC), or another designated agency official. 

3. Officers of the U.S. Public Health Service Commissioned Corps

Along with the types of protected disclosures listed above for civilian employees of DHHS, officers of the U.S. Public Health Service Commissioned Corps are also protected under the Whistleblower Protection Act if they disclose certain other types of serious misconduct. Officers can make their disclosures to DHHS OIG, members of other law enforcement organizations, members of Congress, and certain other specified parties.

Blowing the Whistle on Healthcare Fraud When You Don’t Fall Under the Whistleblower Protection Act

What if you have information about fraud, waste, or abuse in healthcare but you don’t fall into any of these categories? In this scenario, the Whistleblower Protection Act may not apply, but other federal whistleblower protections will.

For example, the False Claims Act (FCA) includes whistleblower protections that apply to individuals who report false and fraudulent claims under Medicare, Medicaid, and other government healthcare programs. We have extensive experience representing whistleblowers both within and outside of healthcare, and we can use our experience to fully explain your options and help you make a decision about how best to proceed.

FAQs: The Whistleblower Protection Act and Its Protections for Employees in Healthcare

Further Information About Our Healthcare Whistleblower Attorney

• Healthcare Whistleblower Attorney
• Healthcare Whistleblower Reward