Managed Care Outlook 2023

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Managed care companies have long been aware that statutes such as the False Claims Act (FCA) allow private citizens to file lawsuits on behalf of the federal government against organizations that have defrauded it, potentially resulting in significant recoveries for such individuals should the claims be successful. Yet, how high can these recoveries be? In September 2022, a relator in an FCA case against Biogen Inc. received a $250 million whistleblower award in a settlement, which is reported to be the highest award ever given to a whistleblower. The relator was a former employee who alleged he was demoted for trying to prevent the company form paying kickbacks to health care providers to influence them to prescribe its multiple sclerosis drugs.

Autoren: Jill S. Vorobiev

Aside from the FCA, it is important to be aware that whistleblowing complaints increased during the COVID-19 pandemic and that beyond the FCA, employees have a growing arsenal of potential remedies available to them in the wake of increased legislative initiatives protecting whistleblowers. According to the SEC’s November 15, 2022 annual report, the SEC received 12,322 whistleblower tips in fiscal year 2022, which was the record for the most tips it has received. In August 2022, in the wake of these increased tips, the SEC adopted two amendments related to dollar recoveries for whistleblowers, which effectively more highly incentivize individuals to bring tips forward.

Also, in New York State, for example, amendments to existing legislation protecting individuals from retaliation for engaging in protected complaints ‒ Labor Law 740 ‒ took effect in 2022. The amendments expanded the definition of “employee” to include current and former employees, as well as independent contractors. They also expanded the scope of protected activity to prohibit retaliation against an individual who not only who discloses or threatens to disclose an unlawful activity but also reasonably believes the unlawful activity poses a substantial and specific danger to the public health or safety. New York is just one of many states amending or creating new laws designed to protect whistleblowers in expanded contexts.

The Association of Certified Fraud Examiners’ biennial study, Occupational Fraud 2022: A Report to the Nations, found that tips continue to be the most common method of detection and that they mostly come from employees. The study also found that tips most frequently come through email and web-based or online reporting systems, with email being the most common method and reporting via telephone hotlines decreasing as a means of reporting fraud.

Training programs targeted at identifying protected complaints can help ensure that managed care companies are aware of and protect themselves against risk. When employees report complaints through emails rather than official reporting tools, it can be harder to detect whether they are whistleblowers. Employees sending emails do not necessarily use buzzwords such as “fraud” or “whistleblower” in their communications but may more subtly raise complaints that nevertheless serve to put companies on notice that they are raising a protected complaint.

Often, complaints go directly to an individual employee’s manager rather than through compliance outlets. Employees often feel more comfortable sending their concerns in this way, such that it is important to ensure that managers are trained to recognize complaints and know where to direct them. Employees often ask for confidentiality when raising complaints in this way, but concerns must always be escalated so that the company can conduct effective investigations. There is no such thing as an “off the record” complaint when protected conduct occurs.

Key takeaways
  • Whistleblowing complaints increased during the COVID-19 pandemic.
  • There are increased protections for and categories of whistleblowers in many states.
  • Managed care companies can help protect themselves through effective investigations.
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