Starr, Kristopher T. JD, MSN, RN
Kristopher T. Starr is an Attorney at Law, Ferry, Joseph & Pearce, P.A., Wilmington, Del.; Staff RN, Emergency Department, Christiana Care Health System, Newark, Del.; Adjunct Nursing Faculty, Excelsior College, Albany, N.Y.; and Supplemental Nursing Faculty, University of Delaware, Newark, Del. Mr. Starr is also a member of the Nursing2014 editorial board.
SOME RECENT QUESTIONS submitted to this journal have focused on employer and colleague conduct—specifically, what conduct pushes the envelope of legality and what conduct constitutes a breach of legality and/or becomes reportable to an appropriate oversight authority. Reading these letters struck me as a good opportunity to discuss whistleblower liability.
What exactly is a “whistleblower”? The basic definition is a person who discloses wrongdoing to someone with authority to remedy the situation, or a person who discloses wrongdoing indirectly by notifying an external organization, such as the Centers for Medicare and Medicaid Services (CMS) or the press.1
Nationally, legal protection for whistleblowers first arose in federal law. Federal government employees have certain statutory protections for reporting alleged fraud and misconduct involving government activity.2 In addition, various congressional guidelines dictate what actions will trigger the umbrella of protections in the federal Whistleblower Protection Act.3
The intent of federal whistleblower protection is to prevent retaliation against a civil servant who attempts to disclose a known harm to the government (generally financial) and, by way of trickle down, harm to the citizens of the United States.
In point of fact, federal whistleblower protections touch on many areas. Some of these protections are quite specific to the legislated area, such as the Mine Health & Safety Act: Non Retaliation Act, which applies to a specific industry. Others are very general and apply broadly to a type of proscribed behavior, such as the False Claims Act.
Some states also have laws protecting whistleblowers, but these vary as to who is protected. Some states protect both public and private employees, some protect only public employees, and some grant no protection at all. A great resource for seeing where your state falls under the umbrella of protection is the National Conference of State Legislatures: http://www.ncsl.org/research/labor-and-employment/state-whistleblower-laws.aspx. The augmented protections of state whistleblower laws provide a state-based layer of protection for the aggrieved employee and open the doors of the state courts for civil lawsuits.
One of the key questions for “disclosure” is intent. What, exactly, is the nature of the disclosure? Is it the person's intent to shed light upon wasteful and illegal government activity, or is the disclosure related to personal disputes or work-related performance?4 Reporting nurses who suffer some adverse employment action may have to prove that their motives were pure when they disclosed the illegal activity.
Now, where does this take us? Well, unless you, as the nurse, are a federal civil servant, whistleblower protection must apply to you under some other provision of federal or state law in order to protect your job in the course of your reporting activity. For example, if you suspect healthcare fraud in a CMS entitlement program, certain federal provisions may apply to protect you as a private, non-government employee. The relevant provisions of the federal whistleblower laws usually state something along the lines of, “No employer may retaliate for.......” For example, the federal False Claims act would generally protect a non-federal employee whistleblower who reports a healthcare facility or a provider for acts of government program fraud (for example, Medicare/Medicaid fraud).
What also may help you is your state's whistleblower protection laws. The key inquiries are:
- what conduct are you concerned about?
- what law or laws do you believe are being violated?
- how do you confirm your suspicions?
- what protections are in place?
- whom do you report suspected illegal activity to?
But, beware! Many states offer no whistleblower protection, and several offer only the protection of the statutory scheme to public employees. This means if you're a private, at-will employee, you may be hung out to dry by your employer with little to no legal recourse.
What's the take-home message for the nurse? Whistleblower laws are, by their nature, protective and reactive. The protections enumerated under state and federal whistleblower laws are intended to deter employers' illegal conduct, but the statutes suggest rights of action only after the reporting party has been adversely affected.
It bears repeating that whistleblower protections are generally exercised after the reporting party has suffered an adverse employment consequence, usually demotion or termination. He or she may then face a lengthy, costly, and intense legal battle to prove the case.
When nurses encounter a situation that suggests a local, state, or federal law is being violated by their practice, institution, or facility, they should consider reporting the alleged conduct to official persons in the organization intended to address these concerns as a primary action. Most healthcare facilities receiving federal funds as reimbursement for care or federal grant research funds have a compliance officer or risk/compliance department. Submitting the complaint to this department is usually the best first course of action.
In the absence of a compliance hierarchy, nurses who are considering making a report should be entirely clear as to the circumstances giving rise to whistleblower protections and consult an appropriate labor professional, such as a labor lawyer in their jurisdiction, to carefully consider their legal and employment options.