The qui tam provisions of the False Claims Act compensate whistleblowers who report different forms of fraudulent claims made against the government. In addition to paying whistleblowers, the False Claims Act also prohibits employers from retaliating against employees who report fraud. Under 31 U.S.C. § 3730(h), an employee can bring a retaliation claim against an employer who discriminates against the employee for attempting to stop the employer from submitting a false claim.
The United States District Court for the Middle District of Florida recently addressed whether an employee properly alleged a retaliation claim under the False Claims Act. See U.S. ex rel., Perkins v. Wellcare Health Plans, Inc., CA No. 8:12-CV-2032-T-30EAJ (M.D.Fla. Mar. 18, 2016). The whistleblower in Perkins was a former Wellcare employee who brought a qui tam action against the company under both the False Claims Act and Florida’s Whistleblower Act.
The Perkins whistleblower was a “clinical supervisor of prior authorizations and therapy.” While at Wellcare, the employee claimed that the company implemented a practice of approving all pre-authorizations for medical equipment without giving proper consideration to whether the equipment was medically necessary. Id. at *3. The employee also alleged that she wrote to Wellcare’s Chief Compliance Officer regarding her concerns regarding different types of fraudulent activities. At some point the employee refused to falsify documents, which she claimed led to her eventual termination. Under the False Claims Act, the employee alleged in her lawsuit against Wellcare that the company fired her in retaliation for reporting violations of the Act to her employer.
The court in Perkins had to address whether the employee alleged a valid retaliation claim against her employer. Section 3730(h) of the False Claims Act protects whistleblowers from retaliation. The purpose of this section is to protect employees who are discriminated against because they attempted to stop the submission of a false claim under the FCA. See Ingle v.. Janick, No. 2:14-CV-544, 2014 WL 6469412, at *3 (M.D.Fla. Nov. 17, 2014).
In order for an employee to allege a retaliation claim under the False Claims Act, she must allege three elements: (1) she was acting in furtherance of an FCA enforcement action or other efforts to stop violations of the FCA; (2) the employer knew that the employee was engaged in the protected conduct; and, (3) the employer was motivated to take an adverse employment action against the employee because of the protected conduct. Perkins at *4, citing United States v. KForce Gov’t Solutions, Inc., No. 8:13-cv-1517-T-36TBM, 2014 WL 5823460, at *10.
The 2009 amendments to the False Claims Act broadened the protections for whistleblowers as they expanded the scope of what courts can consider protected activity. According to the court in Farnsworth v. HCA, Inc., No. 8:15-cv-65-T-24-MAP, 2015 WL 5234640 (M.D.Fla. Sept. 8, 2015), the amendments to the False Claims Act make clear that section 3730(h) not only protects actions taken in furtherance of a potential or actual qui tam action, but also steps taken to remedy fraud through other means, such as reporting the fraud to a supervisor, compliance officer or refusing to participate in the fraud. See also, United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 n.5 (11th Cir. 2010).
The court in Perkins found that the whistleblower did state a retaliation claim under the False Claims Act because she alleged facts regarding her efforts to stop activities she believed constituted a fraud on the government. The employee complained about Wellcare’s practices of authorizing requests without appropriate review and took her complaints all the way to the company’s Chief Compliance Officer. Soon after, the employee was terminated. Id. at *4.
The False Claims Act does not require that an employee actually be terminated solely because she engaged in protected activity (i.e. reporting fraud). Instead, the employee need only show that the employer was merely motivated in part by the employer’s engagement in the protected activity. Id. at *4, citing Farnsworth at *7.
Jason Cornell is an attorney who represents whistleblowers with the law firm Clark Fountain LaVista Prather Keen & Littky-Rubin. Clark Fountain represents plaintiffs in various matters throughout the United States. If you have questions regarding the issues addressed in this or other posts, you can reach Jason at firstname.lastname@example.org.