Coronavirus Whistleblowers

Coronavirus Whistleblowers and Qui Tam: Reporting Fraud and Misconduct on Public Health and Safety Violations

Are employees who report health and safety violations related to the response to the Coronavirus protected under whistleblower laws?

Yes. However, there is no general federal law covering public health whistleblowers. Instead, a patchwork of laws covers federal employees, state employees, and private sector employees. Some of these laws are strong, and others weak. Some loopholes leave whistleblowers open to retaliation.

What laws cover Coronavirus whistleblowers?

That depends on where you work, the state in which you reside, and the issue on which you are blowing the whistle. Two major laws cover federal employees.

The most powerful law covering Coronavirus whistleblowers are the qui tam provisions of the False Claims Act. This law is applicable due to the billions of dollars in federal funding that has been (and will be) allocated to fight the Coronavirus, and the massive federal spending on health programs such as Medicaid and Medicare. State and local government employees are covered under protections in the First Amendment (freedom of speech) and may also have coverage under state laws, including special state laws for healthcare workers. Private sector employees can primarily find coverage under the False Claims Act or under various state whistleblower laws or common law. The Whistleblower Protection Act covers most federal employees, while most federal employees within the Public Health Service are covered under the military whistleblower law.

Why is the False Claims Act potentially the best law to ensure integrity and ethics in all government supported programs fighting Coronavirus?

The False Claims Act is the most powerful and successful whistleblower law. It has a strong anti-retaliation provision, and Coronavirus whistleblowers can qualify for monetary rewards. The Act covers fraud in all federal government (and most state government) procurement and spending.

The law’s coverage includes the Medicaid and Medicare programs, which provide critical care for populations at high-risk for the deadly Coronavirus. If a federally sponsored healthcare provider, contractor, nursing home, or hospital is not providing the level of care mandated under contract or by federal/state laws or regulations, they may be liable under the False Claims Act.

An example of the healthcare-related violations that could give rise to a valid False Claims Act lawsuit concerns the Department of Justice’s National Nursing Home Initiative. On March 3, 2020, unrelated to the outbreak of the Coronavirus, the Justice Department announced an initiative targeting abuse at nursing homes for qui tam lawsuits. The types of violations that could constitute a valid whistleblower-triggered False Claims Act lawsuit was described in an article on Whistleblower News Network to include:

• Failure to provide adequate staff for residents
• Substandard hygiene and infection controls
• Inadequate nutrition for residents
• Improper use of physical or chemical restraints, including withholding of pain medication
• Inadequate facility cleanliness

How can fraud in a Medicaid or Medicare program related to the quality of health services trigger a False Claims Act lawsuit?

The U.S. Supreme Court held that the failure to provide required health services paid for by the government could trigger a False Claims Act qui tam lawsuit. This ruling is especially relevant in the Coronavirus crisis, as many of the most at-risk citizens participate in government-sponsored healthcare programs.

The U.S. Supreme Court, in Universal Health Services v. U.S. ex rel. Escobar, held that a healthcare provider that did not use licensed physicians to treat patients could be liable in a case in which a patient died. The facts in the Escobar case were outlined by the Court, and are instructive as to how a claim for federal (or state) government payments can result in a False Claims Act case based on the failure to provide proper medical services:

“The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal program in which healthcare providers serve poor or disabled patients and submit claims for government reimbursement. . .. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services . . . Yarushka had an adverse reaction to a medication that a purported doctor at [the defendant’s facility] prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitalization. In October 2009, she suffered another seizure and died. She was 17 years old. . .. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D. but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision.”

In reviewing the facts of this case, the Supreme Court explained how False Claims Act liability could result from poor medical attention:

“Specifically, liability can attach when the defendant submits a claim for payment that makes specific representations about the goods or services provided, but knowingly fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading.”

What is especially instructive about the Escobar case is not just how the False Claims Act can be used to empower insiders to report misconduct, but also how greed can impact health services, even when patient lives are at stake.

Are frauds in selling products in government-sponsored programs covered under the False Claims Act?

Yes. One cannot overstate the importance of the False Claims Act to ensuring that goods sold to the federal government are honest, ethical, and meet quality or performance standards. Given the large number of products that will be purchased (or paid for) by the federal, state, or local governments during the Coronavirus crisis, procurement fraud could be a major factor impacting public health. Taxpayers (and consumers) could also be harmed by price gauging. Selling defective products to the government, or overbilling for these products, can trigger a valid False Claims Act case.

An excellent example of this principle concerns the sale of faulty bullet-proof vests to federal and state law enforcement agencies, which created a nation-wide public safety crisis that placed police officers lives in danger

A whistleblower determined that the material used for the vests was defective and could result in injury to police officers when bullets penetrate a vest. Several vests failed, one police officer was permanently injured, and another died after being shot in his vest. The whistleblower, Dr. Aaron Westrick, filed a qui tam action against the largest U.S. bullet-proof vest (Second Chance Body Armor) and a Japanese company that manufactured the defective material (Toyobo). The False Claims Act qui tam action triggered unprecedented reforms and accountably. All of the faulty vests taken off the market, Second Chance was held liable for over $200 million in damages and went bankrupt. Toyobo paid over $66 million in damages. The whistleblower, who lost his job (and was blacklisted in the body armor industry), obtained over $5 million in compensation.

In a July 2018 press statement issued by the Department of Justice announcing the final settlement against the former president of Second Chance, DOJ officials emphasized that it would not tolerate the selling of defective products to the government, in the context of health and safety:

“The Department of Justice will pursue those who attempt to fraudulently profit at the expense of the United States, particularly when the stakes are life or death,” said Acting Associate Attorney General Jesse Panuccio. “Bullet-proof vests protect the brave men and women of our nation’s law enforcement community, and those who manufacture and sell these products have a solemn duty to ensure their safety and efficacy.”

“Fraudulently presenting false claims to the government regarding products intended to protect the lives of public servants is illegal and utterly unacceptable,” said Carol F. Ochoa, Inspector General of the U.S. General Services Administration.”

“I again want to emphasize that marketing faulty protective gear to law enforcement officers who put themselves in the line of fire is an unconscionable act and a betrayal of trust,” said Jon Adler, Director of the Bureau of Justice Assistance. “Our unwavering priority is to protect our officers as they keep our communities safe.”

What about State and local government spending? Is that also covered under the False Claims Act?

Yes. Based on the success of the False Claims Act, a majority of states have passed local versions of that law, covering state and local funding. The new and effective remedies available to whistleblowers under the federal False Claims Act have been duplicated in numerous states. This ensures that all government sponsored medical or health and safety programs can be protected from fraudsters.

The Department of Health and Human Services Office of Inspector General, reviewed all of the state False Claims Act laws and determined that 21 states have laws that provide equal or better protections then the federal law. These include California, Colorado, Georgia, Illinois, Maryland, Montana, New York, North Carolina, Virginia, and Washington. Another eight states have laws that are not as strong as the federal False Claims Act, but still provide significant protections and rights. These include Florida, Michigan, Minnesota and Wisconsin. Some cities have enacted their own False Claims Act laws, including Chicago, the District of Columbia, and New York City. Additionally, many state programs receive federal funding, in whole or in part. Even if a state does not have a False Claims Act law, state and local programs partially funded by federal monies have coverage under the Act.

Given the diversity of protections in each state, and potential changes in laws after the HHS Inspector General’s review, it is essential that whistleblowers carefully review potential state causes of action, including specific rules governing a local False Claims Act, before filing a claim.

What are the procedures for successfully filing a False Claims Act qui tam whistleblower claim?

The False Claims Act qui tam provisions have precise and detailed filing requirements. In addition, most courts require that False Claims Act cases be filed by a licensed attorney, due to the impact these cases have on federal spending and programs.

Please carefully review the FAQs on the False Claims Act and qui tam. Also, the New Whistleblower’s Handbook has extensive information on filing qui tam actions. You must contact an attorney if you believe you may have a federal or state False Claims Act case.

Outside of the False Claims Act, what protections exist for private sector healthcare workers who raise public health and safety concerns?

There is no overarching federal law covering healthcare workers in the private sector. This lack of protection is a crucial issue needing a legislative fix.

Most states do protect medical professionals, including nurses, who raise health and safety issues. The National Nurses Union (NNU) published an excellent survey of state laws covering health and safety issues on its website.

Also, most states have recognized the “public policy exception” to the employment-at-will doctrine. Under this exception, employers generally cannot fire employees if their discharge would be counter to “public policy.” Blowing the whistle on public health and safety matters or patient care is usually considered protected under the public policy exception. Still, you should review these rules on a state-by-state basis.

What federal coronavirus whistleblower protections are available to state and local government workers who raise public health and safety concerns?

Most of the states that have enacted whistleblower laws or provide protections under the “public policy’ exception apply these rights jointly to government employees and private sector employees. Thus, you should review the laws identified above to determine whether or not they apply to state and local government employees.

Unlike the private sector, there is an overarching federal law that provides whistleblower protections to state and local government employees. The Civil Rights Act of 1871, 42 U.S.C. § 1983 applies federal constitutional First Amendment free speech rights to state and local government workers. The U.S. Supreme Court has held that these constitutional protections cover whistleblower disclosures on “matters of public concern.”

The application of First Amendment protections to state and local government employees, including public health officials working in the states affected by Coronavirus, is complex. On the one hand, the rights afforded to state and local government employees under the Civil Rights Act of 1871 are very broad and highly effective. On the other hand, the speech covered is narrower than in different contexts.

The 1968 Supreme Court decision in Pickering v. Board of Education was a landmark decision giving state and local government workers First Amendment protections. That case protected a public school teacher who wrote a letter to the editor highly critical of the actions of his local school board. The Court held that First Amendment protections would apply to government employee speech on “matters of public concern.” Although there is no clear definition of “public concern,” every court reviewing the issue has held that reporting health and safety threats are “matters of public concern.” Based on these precedents, state or local government public health officials or first-responders should be fully protected under the First Amendment if the lawfully blow the whistle on health and safety violations concerning the government’s Coronavirus response.

In Lane v. Franks, the Supreme Court explained the importance of protecting speech on matters of public concern: “Speech by citizens on matters of public concern lies at the heart of the First Amendment, . . . This remains true when speech concerns information related to or learned through public employment. . . There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees. For ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work.'”

Under the Civil Rights Act of 1871, state and local government employees can file “tort” lawsuits in federal court. If they prevail, they can obtain injunctive relief (reinstatement), back pay, compensatory damages, punitive damages, and attorney fees and costs. They also have a right to a trial by jury.

But even if speech is of a matter of “public concern,” it can lose protection if it is disruptive. In Pickering, the Supreme Court adopted a “balancing test” to determine whether the method, manner, and content of a public employee’s speech should be protected. “The problem, in any case, is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,” the Court held.

The final issue concerns where a whistleblower can report wrongdoing. In Garcetti v. Ceballos, the Supreme Court, by a 5-4 vote, significantly narrowed the scope covering the persons to whom a whistleblower could make a constitutionally protected disclosure of wrongdoing. The Court held that most internal disclosures by government workers to their supervisors would not be protected. The majority decision in Garcetti held that constitutional speech protections did not cover the whistleblower “when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings.” Thus, writing an internal memo expressing concerns about violations of law was not protected. The Court reasoned that this internal disclosure was simply “a task () he was paid to perform.”

The court drew a sharp distinction between speech by a public employee that as part of their official duties (generally not protected) and speech that a government employee made as a “citizen,” generally made outside of work, such as a statement to the press, testimony, or a complaint on matters of public concern made outside of any chain of command.

The Court justified this sharp distinction as follows: “The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. . . Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.'”

The Garcetti decision created confusion as to where employees should go to report wrongdoing. Under Garcetti, state and local government employee whistleblowers have more rights when they report violations to the press, a state or local elected official, or even the federal government; then, they do if they disclose to their chain of command. It is critical to discuss precisely how to blow the whistle, and to whom, with an attorney before making a disclosure, as employee rights under the First Amendment are very strong and should not be forfeited simply because an employee decided to tell his or her boss about the violation.

What protections are available to federal employees?

Outside of the Public Health Service, almost all federal employees who raise “significant concerns over public health and safety” have coverage under the Whistleblower Protection Act. 

The Whistleblower Protection Act (“WPA”) is the primary law covering most federal employees. It has a specific provision protecting disclosures of “a substantial and specific danger to public health or safety.” This provision does not apply to dangers that are speculative but does cover credible threats to the public’s safety.

The web pages of the Office of Special Counsel and the Merit Systems Protection Board explain the rules governing cases under the WPA. The Office of Special Counsel published FAQs covering federal employee whistleblowing.

What protections are available to Commissioned Officers of the Public Health Service?

Public Health Service Commissioned Corps (“PHS”) officers play a vital role as key employees within federal public health programs. Thousands of employees within the Centers for Disease Control are Commissioned officers. The whistleblower regulations covering Public Health Service’s Commissioned Corps employees come from the whistleblower law that applies to the military. The Defense Department’s Office of Inspector General published an explanation of these protections, which are significantly less than those afforded to other federal employees or state and local employees.

The persons or offices for which PHS Commissioned Officers may make a disclosure are limited. The whistleblower law defines these offices as follows:

• A Member of Congress;
• An Inspector General;
• A member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
• Any person or organization in the chain of command; or
• Any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

To be protected the whistleblower must “reasonably” believe that his or her disclosure “constitutes evidence of any of the following: (A) A violation of law or regulation . . . Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

You must file retaliation complaints with the Inspector General within 1-year of the alleged discriminatory action.

The PHS whistleblower law is extremely weak. It does not guarantee a right to a hearing and has no provision for federal court appeals. Damages are not defined, and attorney fees are not included in the law. The PHS regulations implementing the military whistleblower law within the Public Health Service are outlined in Commissioned Corps Directive 121.06.

FAQ DISCLAIMER

What are the limits of this FAQ? Is there a disclaimer concerning the information presented here?

Yes. Whistleblower laws are complex. These FAQs give whistleblowers an overview of significant whistleblower qui tam, reward, and anti-retaliation laws. They are not comprehensive. If you believe you may have a whistleblower case, you should contact an attorney and obtain specific advice based on the facts of your case. You cannot rely only on the information in this FAQ to determine whether or not you have a valid claim.

A critical resource for those thinking of blowing the whistle is The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press 2017). The Handbook contains a detailed discussion on all major whistleblower laws and has extensive citations to legal cases and statutes the protect whistleblowers. It is an invaluable resource.

There are several qui tam or reward laws that can result in a whistleblower obtaining a multi-million-dollar judgment. Each of these laws has specific filing requirements. Additionally, there are over 50 different federal anti-retaliation laws designed to protect whistleblowers from discrimination. Again, each of these laws has various lengths of statutes of limitation, filing procedures, and definition of a protected disclosure.

Because of the complexity of the whistleblower laws, we disclaim all liability in respect to actions taken or not taken based on the contents of this FAQ. The FAQ is a summary guide to understanding your rights. You should contact an attorney with expertise in whistleblower law before you make a disclosure. You must know your rights before you “blow the whistle,” so you can ensure that your conduct will be protected.

How can the whistleblower attorneys working at Kohn, Kohn and Colapinto help me?

The whistleblower law firm of Kohn, Kohn and Colapinto has a straightforward intake process. It is available here. Every intake is confidential, and the information provided protected under the attorney-client privilege. A senior partner at Kohn, Kohn and Colapinto reads each intake submission.

The intake process is free of charge.

Unfortunately, KKC receives many more requests for assistance then it can handle and must turn away many qualified whistleblowers. If KKC cannot represent you, you still may have a solid case.

If KKC believes you may have a case with which it can help you, you will receive a follow-up call or email to obtain more information and determine whether or not our firm can represent you. Until you have a signed written agreement with the firm, we are not your attorneys (although all of the information you provide to us is privileged and confidential). Almost all of our cases are on a contingency fee basis.

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