Whistleblowers Face Difficulties and Challenges

John Barnett, a former employee of Boeing Airlines, was a whistleblower who raised quality and safety concerns about the company’s aircraft production.  He was recently found dead and appeared to have died of a self-inflicted gunshot wound.  Barnett was a quality manager who retired from Boeing in 2017 after several decades with the company.  His whistleblower complaint has been pending for more than seven years.

Barnett originally filed a complaint with the Occupational Safety and Health Administration (OSHA) in January of 2017 in which he claimed that Boeing retaliated against him.  Barnett claimed that he was subjected to a “hostile work environment” and “constructive discharge.” He claimed that he was subjected to pervasive retaliation and harassment as a result of his whistleblowing.

Four years later, OSHA concluded that there had been no retaliation against Barnett, but he appealed this decision.  A judge refused to dismiss his appeal.  Barnett’s appeal is pending.  Despite the passage of years, a hearing on the merits of Barnett’s claim has not been scheduled.

According to Attorney David Colapinto in The Washington Post on March 12, 2024: “Whistleblower retaliation cases can be extremely challenging and stressful, but lengthy delays can worsen the negative impact on the complainant…Prolonged litigation of whistleblower retaliation claims that allege loss of career and employment is a life-changing event that can result in profound personal consequences on the whistleblower and their families.”

Whistleblowers in the healthcare industry suffer similar difficulties, whether or not providers retaliate against them. 

An important article, “The Personal Toll of Whistleblowing” by Sheelah Kolhatkar, was published in the February 4, 2019, issue of The New Yorker.  The article focuses on employees of Medicare Advantage Plans who blew the whistle on their employers for alleged fraudulent conduct. 

A whistleblower profiled in the article was a physician, Darren Sewell, who worked for Freedom Health in Tampa, Florida, starting in 2007.  Dr. Sewell was the third highest ranking employee at Freedom and initially led the department that made clinical decisions and administered medical benefits.

Dr. Sewell became convinced that Freedom was defrauding the government of hundreds of millions of dollars.  He believed that Freedom was intentionally targeting and getting rid of sicker enrollees, a practice known as “lemon-dropping,” and was paying sales agents cash bonuses to get enrollees who needed a lot of care out of the Plan.  Sewell also believed that Freedom was cherry picking, i.e., recruiting healthy enrollees who needed little or no care.

Dr. Sewell worked with the FBI and wore a wire over a period of a couple of years.  He recorded many hours of meetings with his colleagues and superiors at Freedom.   He ultimately filed a qui tam suit in 2009 under the federal False Claims Act, which allows private citizens to file suit on behalf of the government against anyone they think is defrauding the government.

In the meanwhile, Sewell had a new position at Freedom that included risk adjustment activities.

Codes were assigned to Medicare Advantage Plan enrollees that reflected their diagnoses.  These codes were used to determine how much reimbursement Freedom received from the Medicare Program.  Sewell identified numerous coding inaccuracies, many of which were in Freedom’s favor.  Sewell concluded that Freedom was also committing risk-adjustment fraud.

The investigation instigated by Sewell dragged on for several years.  In 2012, Freedom learned of the investigation and conducted its own internal investigation.  When Sewell declined to answer some questions, it was clear that he was involved in the investigation.  Sewell was ultimately placed on administrative leave and then submitted his “involuntary resignation.” 

Thereafter, despite many efforts, Sewell could not find employment elsewhere in the area.  Months later, he was digging into his savings to pay the bills.  He also began experiencing health problems that appeared to be related to the stress of his unemployment and the pending qui tam suit. 

In September, 2014, Sewell died as a result of a head injury suffered in a fall.  His brother was substituted as the relator in the qui tam suit.

In 2016, seven years after the qui tam suit was filed, the Justice Department joined Sewell’s suit.  In May of 2017 Freedom settled and agreed to pay $31.7 million.  The whistleblower’s share of the recovery was $6.4 million, a portion of which went to Sewell’s attorneys.

In an article in The New England Journal of Medicine in 2010, researchers studied how qui tam suits affect whistleblowers in major healthcare fraud cases. Here are a few of the comments from participants in the research:

“One interviewee, in response to a question about what advice he would give a potential whistle-flower, wrote ‘(Can they) afford 5 years of their life in turmoil?’ Another said, “Part of your ability to do anything about this is keeping yourself together,’ and suggested that whistle-blowers find someone ‘like a minister or a shrink who’s confidentiality-protected,’ because ‘this could go on for a while.’  A high proportion of whistle-blowers reported divorces or other marital strain, family conflicts, and stress-related health issues, including shingles, autoimmune disorders, panic attacks, insomnia, and migraines.  Several of them said that the financial consequences were devastating.  ‘Honestly, I would not advise anybody to do it,’ one said.”

What are the lessons to be learned? 

Health care providers must have up-to-date Compliance Programs that are fully implemented.  It is way past time for all providers to have Compliance Plans in place, but it’s not too late.  Private duty agencies, this surely means you, if you accept any federal or state funds, including Medicaid, Medicaid waiver, Tri-Care, or VA.  These Programs must require employees and contractors of providers to report possible violations to providers first for their own benefit as well as the benefit of their employers. 

It is equally important for providers to create a culture that encourages reports and outlaws retaliation, even if staff members turn out to be wrong about their perceptions of non-compliance.  It’s really not rocket science!


©2024 Elizabeth E. Hogue, Esq.  All rights reserved.

No portion of this material may be duplicated by any means without the advance written permission of the author.

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