At times, we receive inquiries on cases wherein someone has been fired from a job for reporting or threatening to report Medicaid/Medicare fraud. Obviously, this usually takes place in a medical setting, including but not limited to chiropractic practice, ophthalmology practice, dental practice, physical therapy practice, etc…. It usually takes the form of an employee noticing something irregular with Medicare or Medicaid reimbursements/billings and then reporting it to a third party or the attorney general—the clearest examples are reporting duplicate billing, false billing and medically unnecessary procedures. After the reporting, the employee is fired or strung along for a couple months and then fired for some insignificant reason like not brewing coffee hot enough. Let’s take a look at what we call Wrongful Termination and what is required.
Requirements to make a Wrongful Termination case
There are four things required to prove a wrongful termination or whistleblower case:
- The plaintiff acts or refuses to perform an act (as in “reported child abuse” or “refused to bill Medicaid more than once for a certain procedure”), and
- The defendant fired the plaintiff at some point after the act or refusal; and
- The actions of the plaintiff in #1 were a contributing factor to his/her firing; and
- As a result of the firing, plaintiff was damaged, either emotionally or financially.
If you can prove all 4 of those, you have a case for Wrongful Termination. Usually, numbers 1, 2, and 4 are easy to prove. The most difficult is the contributing factor portion of number 3. That is where the cases are won or lost. What it means is that you can be fired many reasons but if the jury finds that your reporting of the fraud or threat to report it contributed to you being fired, you win.
You may also have a case if you were constructively discharged, demoted or suffered adverse job consequences. I will explain Constructive Discharge below.
What is Constructive Discharge?
Constructive Discharge is essentially your employer making things at work so unbearable you had no choice but to quit. The employer will then claim you were never fired and actually quit on your own. It is a sneaky move by employers but the law provides for recovery if this happens to you. For example, you suspect some shady, illegal activity and report it to HR or the Missouri Attorney General. Within the next couple weeks, you assignments change, you are no longer given work, your computer is swapped out, your desk is changed, your phone never works, you are required to come in extra early, etc…. All of these things can lead to what is called “Constructive Discharge”. At its most basic level, it just means the employer made things so difficult for you after you reported something that you had no choice but to quit.
Role of the Attorney General
The Missouri Attorney General has an entire division devoted to whistleblowing. Whistleblowing is the reporting of public fraud, waste or abuse. It is the theft of the taxpayer’s money by way of public programs like Medicaid, Medicare, etc…. If you are the first one to report the fraud (ie, you are the whistleblower), you are entitled to 10% of the funds stolen. See RSMo 191.907.1 (http://www.moga.mo.gov/mostatutes/stathtml/19100009071.html).
Steps You Should Take
First and foremost, if you notice irregularities in billing at your office, especially Medicaid or Medicare, you have an obligation to report it immediately. You should contact the attorney general. Their website is very easy to use with downloadable forms, phone numbers and e-mails. Next, consult an attorney. This will be free of charge but you need to know your rights. No one else will tell you what your rights are—it is a personal responsibility to learn them. So do it. It will protect you. Doing these two things will help you protect yourself when your employer is caught abusing the system.