Welcome the Whistleblowers

April 23, 2014

The Wisconsin Health Care Worker Protection Statute (WHCWP) protects healthcare employees who report suspected legal or ethical violations to their supervi­sors. Healthcare employers should encour­age employees to report such behavior to prevent government investigations and penalties. This article provides an overview of the protections afforded to whistleblowers by the WHCWP and outlines the benefits of encouraging employees to report violations.

Whistleblower Issues Abound

In fiscal year 2013, the U.S. Depart­ment of Justice secured $3.8 billion in settlements and judgments in civil cases involving fraud against the government. Since January 2009, the government has recovered nearly $20 billion, and most of the funds were secured from health­care providers. The government’s 2014 fiscal year started out strong with a $2.2 billion settlement with global healthcare giant Johnson & Johnson for allegations of off-label marketing and illegal kick­backs to doctors and pharmacists.

Meanwhile, the Wisconsin Supreme Court recently heard arguments in Masri v. LIRC. In that case, an unpaid health­care intern at the Medical College of Wisconsin was terminated because she reported alleged medical ethics viola­tions to her supervisors. The intern filed a lawsuit under the WHCWP claiming that the college retaliated against her after she reported her concerns to her supervisor. The supreme court will de­cide whether the intern qualifies as an “employee” under the statute.

What do large judgments against healthcare providers have to do with the WHCWP? More than you may think. Judgments against healthcare providers are typical in whistleblower lawsuits. The WHCWP is designed to protect whistleblowers and encourage health­care employees to report suspected legal and ethical violations.

Rather than resist whistleblowers, healthcare employers should create a culture of compliance in which employ­ees feel safe reporting suspected viola­tions to supervisors. A culture of com­pliance can help identify issues before they become problems, stave off govern­ment investigations, and reduce penal­ties for violations. Healthcare providers should encourage employees to report violations and thoroughly investigate issues when they arise.

WHCWP Provisions

The WHCWP is designed to en­courage healthcare employees to report suspected legal or ethical violations. Subsection 2 gives employees explicit permission to report that (1) a health­care facility or its employees violated a law or regulation and (2) the quality of healthcare services violates a law, regu­lation, or clinical or ethical standard and poses a risk to public health or safety.

The statute also encourages healthcare employees to initiate, participate in, and testify in lawsuits or pro­ceedings in which a violation is alleged. Subsection 2 encourages employees to report concerns to state agen­cies, accreditation bodies (e.g., The Joint Commission), an officer or a director of a healthcare facility, or another healthcare employee who is in a supervisory position and is able to take corrective action.

Employees who report alleged violations in good faith are protected from retaliation from the healthcare provider. Healthcare employers are not allowed to take disciplinary action (e.g., dismissal, transfer, or demotion) against an employee who reports an alleged violation. A healthcare employee who reports an alleged violation in good faith and faces real or potential disciplinary action from his employer can file a complaint with the Depart­ment of Workforce Development (DWD). If an employ­ee’s claim is successful, he may be entitled to reinstate­ment, back pay, and even attorneys’ fees.

Welcome the Whistleblowers

Rather than resisting whistleblowing, healthcare employers should encourage employees to report sus­pected legal or ethical breaches directly to them. If you are a healthcare provider, create a culture of compliance in which employees are empowered to report problems directly to their supervisors. A culture of compliance is created in part by establishing a system that allows employees to confidentially report suspected violations without fear of retaliation. In addition, thoroughly in­vestigate suspected violations, document your findings, and follow up with whistleblowers. Doing so will show employees that you take their concerns seriously and will not retaliate against them for reporting possible violations.

A culture of compliance also has other benefits. First, it encourages employees to report concerns di­rectly to their employer rather than a state agency or an accreditation body. That allows employers to identify and address issues before they are reported to outside entities. Second, identifying potential problems early al­lows healthcare providers to make informed decisions on how to address problems before litigation ensues. Fi­nally, if you have committed a violation that is worthy of federal criminal prosecution, the U.S. Sentencing Guide­lines, which apply to corporations as well as individu­als, provide for leniency if you have a robust culture of compliance.

Bottom Line

Like its federal counterparts, the WHCWP protects employees who report suspected violations to their em­ployers. Healthcare employers should make employee reporting an integral part of their culture. Doing so can help head off larger problems down the road.

This article was featured in the April 2014 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorneys Saul Glazer and Timothy Barber and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

To subscribe to email alerts from Axley Law Firm, click here.

For more information about "Welcome the Whistleblowers," contact Tyler K. Wilkinson at twilkinson@axley.com or 608.283.6783.