Prior to the 2009 False Claims Act Amendments, healthcare compliance employees, in effect, were largely uncovered by the False Claims Act anti-retaliation provision. Under the prior statutory language and case law, such individuals could only pursue anti-retaliation actions in the rare instances when their employer knew that they were filing a qui tam action. The 2009 amendments broaden the statutory language, allowing the right to relief not only on pursuit or aid of a qui tam case, but on any conduct by or on behalf of the employee to stop FCA misconduct.
This broader protection was the focus of a recent Ohio district court case, which dissected the differences between the pre- and post-2009 FCA anti-retaliation provisions. In that case, the plaintiff was a former corporate compliance vice president, who brought an FCA anti-retaliation action against her former employer, Holzer Health Systems.
According to the plaintiff, she was fired soon after commencing an investigation into allegations that employees were disproportionately using the services of an ambulance company, Life Ambulance, in exchange for gifts and luncheons paid for by Life Ambulance.
The defendant asserted, the factual allegations indicated only that the plaintiff was performing her duties as a compliance officer, and this was not sufficient to trigger FCA anti-retaliation liability. For support, the defendant cited a Sixth Circuit decision, Yuhasz v. Brush Wellman, Inc., which concluded that performing ordinary and expected employment duties of informing an employer that certifications were illegal and might incur liability under the FCA failed to provide the employer with notice of protected activity.
The court rejected the defendant’s argument, noting that Yuhasz pre-dated the 2009 FCA amendments.
Under the amended FCA, anti-retaliation protection now properly extends to healthcare compliance employees who are fired for simply trying to stop FCA violations.
More information for whistleblowers is located at the Nolan Auerbach & White website.