Avoiding Whistleblower Settlements Gets Even Harder
While healthcare organizations who undertake steps to defraud the government are often punished with large fines or settlements for their malfeasance, healthcare organizations operating compliantly should theoretically have nothing fear. Interestingly, and perhaps concerningly, tenets from a pair of recent court cases reveal that organizations may still be at risk for whistleblower cases even without any evidence of institutional noncompliance:
Two recent court decisions out of the First Circuit Court of Appeals and Eastern District of Tennessee serve as a reminder that healthcare employers can be liable under the FCA’s anti-retaliation provisions even if there is no finding that they submitted a false claim...These decisions illustrate that refraining from illicit activity, alone, will not insulate employers from FCA whistleblower retaliation claims.
So where does that leave healthcare organizations wanting to avoid these costly settlements? How can an organization best protect itself against whistleblower cases, real or imagined, being referred to the OIG?
Time and again, the OIG has pushed for establishing a culture of compliance at all levels of the organization as the best preventative measure to guard against non-compliant behavior and to be shown leniency if any compliance issues arise.
Create an environment and culture where employees do not constantly worry that noncompliant conduct may be occurring. When employees understand an organization’s culture and values and see those play out everyday, they are less likely to assume fraudulent conduct is occuring and hopefully will instead report their concerns to the internal compliance department with a justified conviction that the organization will investigate and take any necessary action if problematic conduct is taking place.