Defending yourself against whistle blowers: Two views

If you’re looking for a magic talisman that will keep whistle blowers at bay, forget it. Sooner or later you are going to make a billing or other error that violates the False Claims Act, and an employee inflamed by anger or greed can file a qui tam suit. Here’s some advice from experts on both sides of the issue:

The defense: Your best protection is to have a compliance plan in place, says veteran qui tam defense attorney Jack Boese, JD, with Fried Frank Harris in Washington, D.C. A good compliance plan will not only help to prevent billing problems, but more importantly, will give employees a chance to report their grievances. Giving employees a place to report problems, and then investigating, will satisfy some — but not all — potential whistle blowers, Boese believes. "Whistle blowers are self-righteous," Boese adds. "They are people who believe they are right and want to show how smart they are. You have to give them an opportunity to vent."

Your best move is to maintain a special compliance hotline. Still, even hotlines or drop boxes aren’t a panacea. "Most whistle blowers don’t use a hotline even if one does exist," notes Boese.

The plaintiff: "If there are hotlines and the complaints are responded to, great things will happen," agrees Los Angeles attorney Mark Kleiman, who’s currently representing whistle blowers in 17 false claims suits against health care providers. Even if a suit is filed, your foresight will show that at least you tried to address the problem once the whistle blower brought it to your attention, he says.

The catch is that too often, providers don’t listen or they actually retaliate against employees who report compliance problems, according to Kleiman. "The folks I’ve talked to [who filed suits] either no longer worked there, got fired or decided no one was going to listen to them." In one of his cases, an employee reported a complaint to a provider’s hotline, and in another the employee made her report through the chain of command. In both cases, the employee was fired.

Kleiman disputes the notion that whistle blowers are eager to go to court. "One of my clients is a single mother with two kids. A qui tam suit and losing her job were the last things she wanted."

If you don’t want employees to go find a false claims attorney, you’d better keep them happy, warns Kleiman. It’s not so much a question of pacifying them as making them feel that their complaints have been heard and acted upon. "You don’t just want to say thank you’," Kleiman says. "Once in a while you want to say, Hi, we just wanted to let you know that we’re pulling documents and we’ve hired an outside auditor.’"

Note: The rules change if you encounter a blackmail situation, Kleiman acknowledges. Say an employee threatens to file a false claims suit unless his demotion is rescinded. "You don’t want to roll over in an employment situation," Kleiman says. But even if you don’t give in, you had better investigate whatever problems the employee mentioned.