Nurses have long been a crucial part of the healthcare system, and they can be just as crucial when it comes to reporting fraud within that system.
As insiders and observers of many healthcare procedures and billing practices, nurses have much-needed visibility into wrongdoing being committed by hospitals, physician-practice groups, drug manufacturers, home healthcare providers, nursing homes and more.
Nurses have been instrumental in reporting:
-Off-label marketing by drug reps;
-Improper use of laboratory or other tests to churn up payments;
-Upcoding of services provided, to increase payment levels;
-Claims of home-health visits that did not really occur;
-Billing for doctors’ services when the doctors were not present for the procedures; and
-Improper care of children in state-run mental health facilities.
Nurses have a natural affinity toward reporting corrupt and fraudulent healthcare practices because of the possibilities of poor patient care and the draining of public funds that could otherwise support the legitimate needs of beneficiaries of the system.
Healthcare Fraud and the False Claims Act
The federal and state False Claims Acts are designed to weed out fraudulent billing and recover funds for the public fisc – allowing government healthcare programs to operate more effectively and have more funds available to provide healthcare to millions of Americans.
Only false or fraudulent claims on government healthcare programs are covered under these statutes, not other types of false claims such as suspected fraud on private insurance companies.
If fraudulent conduct is reported and results in a payment by the wrongdoer, the whistleblower is credited for the reporting and becomes eligible for an award of anywhere from 15-30% of the amount of the government’s recovery (part of which will typically be paid out as attorneys’ fees).
Nurse Whistleblower Risks and Challenges
It would be irresponsible, however, to not recognize the risks and challenges that nurses – like many other whistleblowers – might face. First, no one likes to have his or her judgments or actions questioned, and one might argue that doctors are high up on that list.
Second, nurses are generally accustomed to working as part of a team, where other members might either be complicit in the suspected wrongdoing or simply not want the distraction and finger-pointing that often accompanies an investigation of fraudulent conduct.
Third, some locales might have a fairly tight-knit healthcare community, where word of someone’s whistleblowing activities could impact his or her ability to find alternative employment opportunities. Finally, nurses might observe problematic healthcare practices, but not have information or documentation about actual billing practices.
Nurses who observe medical practices or billing that they believe to be fraudulent should carefully document the wrongdoing they see, with details about times, dates, persons involved and especially anything they can see about false billing.
Given the potential pitfalls about violating healthcare privacy rules and general limitations on copying employers’ documents, it is advisable to consult with legal counsel early in that process.
The American Nurses Association provides the following sound advice: “Seek the counsel of someone you trust outside of the situation to provide you with an objective perspective, and consult with your state nurses association or legal counsel if possible before taking action to determine how best to document your concerns.”
Depending upon the situation and your relationship with co-workers, you might want to consider working with another employee, especially someone who might be observing the questionable conduct from a different department or perspective.
For example, a clinical nurse might reach out to someone in the billing department, subject to concerns about being “outed” or even beaten to the punch about reporting suspected fraud. A nurse who observes a seeming pattern of unnecessary testing and billing might want to work with someone else who can corroborate the suspected fraud or possibly provide a longer timeline.
Contact an Experienced Whistleblower Attorney
Even when the morality and ethics of reporting problematic conduct seems clear, there can be complications in terms of assessing whether particular conduct actually violates any state or federal billing regulations, and there are always concerns about potential retaliation. Reach out to experienced legal counsel to discuss your particular situation and to get help deciding how you want to proceed.
If you have discovered evidence of fraud committed against the government, you may be entitled to a substantial reward and the legal protections afforded to whistleblowers under state and federal laws. The attorneys at Berger Montague are nationally recognized for their work in Whistleblower/Qui Tam actions. For more information or to schedule your confidential consultation, contact us online or call us at 888-647-9292.