The Compliance Divas Podcast
Our podcast covers current topics such as infection prevention and control, OSHA and HIPAA compliance for dentistry. We discuss the latest regulatory information, answer frequently asked questions and give suggestions for dental practices to make compliance easy and sustainable. The Compliance Divas are a trusted source for consistent, accurate information based upon current guidelines, standards, science, and recommendations.
The Compliance Divas Podcast
#128 What is Whistleblowing and Does it Apply to Dentistry?
Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.
Whistleblowing occurs in many different industries across the globe and most definitely occurs dentistry as well. It's something not to be taken lightly. In this episode, the Divas discuss what it is and what can trigger whistleblowing. And most importantly, identify steps to prevent whistleblowing in your office or organization.
- Dental Whistleblower Case: https://bit.ly/3PUQcXf
- Whistleblower Protections https://www.dol.gov/general/topics/whistleblower
Welcome. I'm Leslie Cannon. I'm Mary Gavoni.
SPEAKER_02I'm Linda Harvey. I'm Olivia Wan, and together we are the Compliance Divas.
SPEAKER_00Welcome to the Compliance Divas Podcast. This is Linda Harvey, and I will be your moderator today. The Compliance Divas bring clarity and simplicity to compliance by navigating the regulatory world to keep you on course. We invite you to subscribe to our podcast through your favorite podcast channel or on our website, thecompliancedevas.com. Any resources that we mentioned may be found in today's show notes as well as our website. And we invite you to submit any questions that you might have to support at thecompliancedivas.com. Well, today's podcast is on a topic that the Divas have not yet addressed, and it's the topic of whistleblowing. In general, when I think about whistleblowing, I think of someone whistling while they're working, or maybe even a sports official blowing their whistle to stop a play. However, in business, whistleblowing has an entirely different meaning. And I'd like to summarize how Wikipedia defines whistleblowing. Whistleblowing is when a person, often an employee, reveals information about an activity within an organization that is deemed either illegal, immoral, illicit, unsafe, or fraudulent. And when this is done, whistleblowers can use a variety of internal or external means or channels to communicate the information or the allegation. As a matter of fact, on Wikipedia, they state that over 83% of whistleblowers report internally to either a supervisor, the human source, human resources department or individual, to the compliance department, or maybe a neutral third party within the company or organization, hoping that somebody will address and correct the issues. But also importantly, a whistleblower can also bring allegations to light by communicating them with external entities such as the media, government, or even law enforcement. Whistleblowing occurs in many different industries across the globe, and most definitely it occurs in dentistry as well. So let's dive into this topic. Mary, I'd like to ask you if you don't mind to please share with us some of the most common areas that we see happening in dentistry related to whistleblowing.
SPEAKER_01Absolutely, Linda. The most common area that we see is a complaint that may be filed with OSHA about unsafe work conditions. And anyone who files a workplace safety complaint remains anonymous to the employer. However, it's not too difficult, usually, especially in a smaller dental practice, for an employer to figure out who that is. And an employer is not allowed to retaliate, like deny overtime pay or demote them or intimidate them or fire them for making a complaint. And we recently saw the settlement of a case against a dentist who was ordered to pay $20,000 in back wages to an employee who was terminated for making a complaint or an allegation about unsafe work practices in the practice. And so the doctor in the practice apparently spent a great deal of time trying to find out who it was that filed the complaint and made that determination and fired this employee, who then was deemed a whistleblower. And OSHA actually sued the employer, filed a lawsuit, and the settlement was $20,000 in back wages. So usually it's something that has to do with unsafe work conditions. This happened to be related to COVID-19, that the employee wasn't feeling safe, and the employer obviously disagreed and fired them because of it.
SPEAKER_00That certainly shed some light on how this applies in dentistry, Mary. And that's one aspect of what's blowing related to safety, particularly employee safety concerns. And while these concerns are compliance related, I'd like to take it a step further and also distinguish between a legitimate complaint or particularly related to compliance or safety versus someone that's feeling disgruntled, maybe because uh the employer wouldn't buy their exact surface disinfectant or something frivolous, you know, as long as the product meets the requirements. So we want to be really distinguish among that today as we're talking about this topic. And I think you did a great job on that, Mary. That's a perfect example to share with our listeners. Our Diva Leslie couldn't join us today, but she wanted to be sure that we shed some light on other areas of compliance where whistleblowing could impact a practice or an organization. And this is the False Claim Act. The False Claims Act is America's first whistleblower law. And I was surprised when I researched this, and it's one of the strongest whistleblower laws in the United States. Just in case you, even though our listeners may be aware of it, I was not aware that it was actually signed into law in 1863 by President Lincoln during the Civil War. So it's interesting what was happening back then and why that became necessary. But the False Claims Act also applies to proper coding and billing practices throughout healthcare. And that law has been updated many times in recent years. And so this definitely applies to dentistry. So it's important to follow the regulations related to coding and billing because the False Claims Act has some very strong whistleblower protections and it has some very strong punitive actions against those who violate it. So again, whistleblowing allegations must be based upon fact rather than a toleratory action against an employer because you didn't get a raise, for example. So speaking of legal protections, Olivia, could you please share with our listeners about those legal protections a little bit more and the consequences or thoughts or what happens to the whistleblower themselves?
SPEAKER_02Sure, Linda. I think I'd like to introduce that topic by elaborating a little bit on what are the protected issues that an employee would report on, or so to speak, blow the whistle. And OSHA is definitely one of them, employee safety. It could be an environmental protection issue, or it could have to do with health insurance, minimum wage, fraud, or corruption, as you mentioned, family or medical leave, or discrimination. So basically, the False Claims Act, as you beautifully pointed out, provided protection for whistleblowers against retaliation. So it is against the law to fire or take some kind of adverse action against an employee who has blown the whistle, so to speak. And this is really it's very serious. And I've actually had a couple of cases that have related to this where I worked as a consultant in a situation. One of them had to do with an OSHA termination where the employee was terminated for making a complaint. And that's very unfortunate because the complaint was not valid. But being fired resulted in a successful whistleblower claim violation, and the employee had to be paid over $30,000 for restitution of lost wages. And then I've had a couple others that related to uh compensation. But in answer to your question, Linda, regarding the negative consequences, you know, one it one is, you know, nothing is settled in a week. In anytime I actually all of the civil litigation cases that I've been working on, they're in the system for like two years. So we'd like to warn plaintiffs that this is not going to be, unless the other party bends, it's not going to be settled for several years. It's a very complex process. And so whoever's going to file this complaint needs to be prepared that they will have to navigate through that process and all the documentation and lawsuit. Because even if it does result in a settlement, there's still tons of documentation that you have to go through. Um, so you know, on the flip side of the negative effect being that there's delays, you know, people have the satisfaction of knowing that they took a position in standing up for what is right and making sure those are changes are being made. So I think for our audiences, it's it's a good idea to understand what happens when there's a whistleblower act claim made, what that process is. And there's definitely legal protections. Now, with that said, you know, in the sit in the situation that I use as an example where the assistant was fired, well, obviously that assistant does not want her job back. She did not want to be restored to working as a dental assistant in this practice that took adverse action against her. You know, she was after a monetary settlement. And I was able to help negotiate that settlement down to a more minimal amount. Uh, so I think just to be knowledgeable and research the topic, Linda, and and stay on top of things would be very wise.
SPEAKER_00Olivia, that was a perfect example of being able to share some cases you've worked on. And I think Mary would like to add to that.
SPEAKER_01Yeah, I'm so glad, Olivia, that you mentioned that and that you also mentioned, Linda, that um using a whistleblower complaint should not be a form of retaliation if you're mad at your employer. And having worked with a number of OSHA inspectors over the years, I've been told, and you probably have been too, that when a complaint is made, there are a lot of questions asked to try to determine whether this is a disgruntled former employee or whether this is truly a safety concern on the part of this employee. But we still see it, not as much as is, I think, in the early days of OSHA, that that was a way to get even with your employer. And I would hope that any of our listeners would not use that method of trying to resolve issues with their employers.
SPEAKER_00Well said, Mary and Olivia. I think it's important that we really stress that issue. Olivia?
SPEAKER_02I just want to mention, Linda, that in cases that I've worked on, it's really important to keep the emotions out of it. So obviously, employee and employer can be upset, and the employer might respond to this situation too soon while they're inflamed and result in dismissing someone from their job. They really need to sit down and gather all the facts and seek out counsel or working with someone that's familiar with HR so they don't make a rash decision that results in a claim.
SPEAKER_00Perfect. That's very good advice, Olivia. I think it's it's about keeping the emotions out of it and having calm conversations. And I'm going to wrap up with a tip about that in just a few minutes. But I would like to mention another area first, and that is the area of corporate compliance and its significance related to whistleblowing. Many dental practices meet the requirements for having to have a compliance plan, a corporate compliance plan. And this is not HIPAA or OSHA or policies in those areas or even HR. But corporate compliance is required under the Affordable Care Act and has been for a number of years now. And it's required for any dental practice that accepts federal insurance reimbursements either directly through Medicare or Medicaid or indirectly through another private insurance carrier. For example, Medicare Advantage plans that are offered by a private insurance company, maybe a Blue Cross or an Aetna, just to name a two. So it's important that our listeners who fall into this area of compliance be aware of that because one of the components of a corporate compliance plan is to have a process for employees who have a concern about coding and bailing practices to have that concern voiced and addressed in a timely fashion. Just like in your HR policies, if there's a concern about some you know happening in the practice, you share that concern of harassment or whatever it could be or something that's going on, and you have a policy within your practice with how this is going to be handled. So you know the concern is going to be addressed. So this is something that when we think about whistleblowing, it's something that should not be taken lightly by an employer or an employee. And neither should the legitimate safety concerns raised by team members be taken lightly. So to follow up with what Olivia said about keeping emotions out of the conversations, the divas encourage open communication in a practice or organization about any concerns raised. And we'd like to refer our listeners back to episode number 119 on courageous conversations with our guest, Catherine Eitel Belt, that just aired mid-August, just about a month ago. So we would encourage you to go back and listen to that. That would be a great topic for team meetings to listen to that. So ultimately, courageous conversations contribute to the success of a practice or organization and ultimately have a positive impact on quality of care. As the compliance divas, we bring clarity and simplicity to compliance by navigating the regulatory world to keep you on course. We invite you again to subscribe to our podcast through your favorite podcast channel or on our website, thecompliancedevas.com. All the resources that we talked about today will be found in the show notes and on our website. And as always, please feel free to submit your questions to support at the compliancedevas.com. And we look forward to seeing you next episode.