Protection from Within

Every home care company must protect itself from problems caused by whistleblowers. When insiders communicate to the government ongoing or recurring problems that they have discovered, this can cost an HME supplier much money, time, stress and governmental troubles. One key solution to the problem of whistleblowers is for a home care company to launch and operate an effective compliance program.

Here's why. First, whistleblowing often occurs because personnel (or other insiders) believe that the home care company does not value their input, nor their concerns about company compliance. Because an effective compliance program must, by definition, include a mechanism for encouraging and acting on personnel tips about compliance problems, the staff member will probably not be ignored when he or she brings information about internal problems to the company's attention.

Also, because fewer problems remain unresolved, there is less motive and opportunity for qui tam action under the Federal False Claims Act, or for government hotline reporting under HIPAA. When a home care company fixes a problem quickly, it's hard to argue that the company had any “intent to defraud” the government.

Second, a compliance program can reduce the dangers of whistleblowing even when the company declines to resolve the problem to the reporting staff member's satisfaction. Nothing requires a compliance program to eliminate every problem, or a home care company to choose a solution or form of discipline that satisfies the reporting staff member. When personnel feedback leads to a reasonable investigation and reasoned response to the identified problem, the company will usually be insulated from fraud liability.

Violations of the law certainly can occur notwithstanding an effective compliance program. But, the qui tam opportunities for whistleblowers are available only when the wrongdoing creates false claims, not merely inadvertent or negligent errors. Even when the home care company fails to eliminate errors or problems that create reimbursement violations, the fact that the company utilized an effective internal mechanism to address these sorts of problems will make it very difficult to characterize the wrongdoing as creating false claims permitting qui tam relief.