Does the federal False Claims Act provide sufficient protection to whistleblowers who risk their careers to call out fraud and other misconduct? The case of one health care worker who filed a qui tam lawsuit against her employer, RehabCare Group Inc. raises that very question.
According to McKnight’s, a whistleblower brought a False Claims Act lawsuit against RehabCare and its parent company Kindred Healthcare, alleging RehabCare submitted claims to Medicare for therapy services that were inadequate, not medically necessary, and in some cases not even provided.
When a whistleblower files a False Claims Act lawsuit on behalf of the federal government, it remains under seal for a minimum of 60 days while federal prosecutors look into the complaint’s allegations. If the government can’t complete its investigation in that time, it can extend the seal period. In the RehabCare whistleblower’s case, the government declined to intervene.
While False Claims Act lawsuits can, and often do, move forward without the government’s involvement, the RehabCare whistleblower “requested that the proceedings of the case be dismissed and remained sealed, citing her fear of retaliation from current and future employers and a desire to remain employed in the health care industry,” McKnight’s reported.
However, U.S. District Court Judge Ronnie White, Eastern District of Missouri, disagreed with the whistleblower’s argument that unsealing the case would expose her to risk of a backlash and potentially cause her “significant” harm in the future.
According to McKnight’s, Judge White built his opinion on similar previous cases, writing that the whistleblower’s “concerns are no different from those of the many employees who bring suits against their employers or former employers for various reasons.”
“These employees continue to bring suits without the protection of sealing the case,” Judge White wrote. “There is no reason that retaliation concerns should merit special protection.”
The judge’s ruling, like those before him, no doubt has a chilling effect on would-be whistleblowers. Doing the right thing – calling out fraud and other misconduct harmful to taxpayer-funded agencies and programs – can be treacherous without confidentiality.
This risk is why lawmakers included confidentiality rules when establishing the Securities and Exchange Commission’s (SEC) Office of the Whistleblower under the Dodd-Frank Act of 2010. The SEC regularly announces whistleblower payouts but never discloses any details that might directly or indirectly reveal a whistleblower’s identity.
Nondisclosure doesn’t just shield the whistleblower from retribution, it emboldens them to step forward and report the alleged misconduct to authorities. If the confidentiality rules are so vital to the SEC’s whistleblower program, why would they be any different for False Claims Act plaintiffs?