Citizens may file whistleblower complaints or qui tam actions against violators (persons or companies) through a variety of mechanisms. The two most common mechanisms for complaint filing in the dental industry are workers via the US Department of Labor especially though the Occupation and Safety and Health Administration (OSHA) and civil lawsuits filed for alleged violations to the False Claims Acts (state and federal).
Expert Michael W. Davis, DDS, is back. Continue reading for more of his coverage of the risks and rewards of being a dental industry whistleblower.
US DEPARTMENT OF LABOR
Employees (or misclassified “independent contractors” or “managers”) may file a complaint with US Department of Labor’s Office of Administrative Law Judges and/or their state labor department for a variety of violations inclusive of misclassification of employment status, workplace discrimination, and failure to provide overtime and required break periods.
The government suggests victims also retain personal legal representation.
Employer retaliation is specifically prohibited by adverse actions inclusive of:
- Firing or laying off
- Demoting
- Denying overtime or promotion
- Disciplining
- Denying benefits
- Failing to hire or rehire
- Intimidation or harassment
- Making threats
- Reassignment to a less desirable position or actions affecting prospects for promotion (such as excluding an employee from training meetings)
- Reducing or changing pay or hours
- More subtle actions, such as isolating, ostracizing, mocking, or falsely accusing the employee of poor performance
- Blacklisting (intentionally interfering with an employee’s ability to obtain future employment)
- Constructive discharge (quitting when an employer makes working conditions intolerable due to the employee’s protected activity)
- Reporting or threatening to report an employee to the police or immigration authorities
This includes full-time, part-time, and temporary employees. Staffing agencies and the host employer may both hold potential liabilities.
The US Internal Revenue Service (IRS) and state taxation authorities may additionally file a demand for unpaid taxes, interest, and penalty in situations of misclassified employees by employers.
One lawsuit in the dental industry filed under violations to the federal Fair Labor Standards Act resulted in a $1.3 million dollar settlement. This particular class action was filed against a dental service organization (DSO) which allegedly denied dental clinic office managers overtime pay.
OSHA VIOLATIONS
Workplace safety whistleblower complaints may also be filed through OSHA. Employer retaliation upon whistleblowers may result in additional penalties.
OSHA’s Whistleblower Protection Program enforces the provisions of more than 20 federal laws protecting employees from retaliation for, among other things, raising or reporting concerns about hazards or violations of various workplace safety and health, aviation safety, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws.
The dental industry is not immune from OSHA compliance requirements.
Numbers of compliance training programs exist to assist the dental industry.
OSHA COVID-19 VIOLATIONS
With the advent of the coronavirus with the pandemic, OSHA has enacted added safety standards to protect workers, most particularly in the healthcare industry, but not exclusive to healthcare workers. The US Department of Labor has released a listing of inspections with resulting related violations.
Offenders range widely, from nursing homes and elder care facilities to government healthcare and border immigrant programs, to food processing centers. Most, if not every state is represented among offenders. Not excluded among wrongdoers are dental clinics, both smaller operations and larger DSOs.
Reuters News has reported that approximately two-thirds of violators are not paying their fines.
All the while, regulators are frequently ignoring OSHA COVID-19 complaints from workers.
FALSE CLAIMS VIOLATIONS
In the dental industry, these sorts of qui tam actions are typically filed for alleged Medicaid fraud.
Generally, one or more whistleblowers will file a lawsuit(s) in civil court with their private attorneys.
Government attorneys general (state and/or federal) may then later elect to join the lawsuit on behalf of plaintiffs.
Whistleblowers (called “relators”) may range from patients (or parents), to doctors, to dental auxiliaries, to office managers. Relators may receive 15-25% of the eventual settlement or judgement (in an intervened case), depending on their contribution to the prosecution and their time order in filing.
Because the federal False Claims Act allows a treble damages penalty, and the common dollar amount of Medicaid fraud often being millions of dollars, payouts for prevailing relators may result in substantial sums.
However, most successful False Claims litigation may take several years, just to reach a settlement. Many cases are never joined by government attorneys, and private law firms may lack financial resources to bring cases to conclusion. Further, qui tam False Claims litigation is a legal specialty, which many or most attorneys are ill-prepared to prosecute.
Additionally problematic for relators is that government attorneys or courts may weigh the service of some relators more valuable versus others. It is not unusual to see one relator in a major DSO Medicaid fraud case to receive over a million dollars, while another receives virtually nothing beyond coverage of their attorney fees.
Michael (Mick) Greenwald, DDS was a primary relator in government’s False Claims action against Kool Smiles Dental. The lawsuit eventually settled with no admission of wrong-doing for $23.9 million. Greenwald offered solid advice for any whistleblower. “Get real time, solid unequivocally true and accurate information.”
He cautioned “I knew someone who actually called the feds and told them what she saw. They asked if she had hard evidence. She said no. They said… we won’t investigate based on hearsay.
Evidence, evidence, evidence!”
COMPANY RETALIATION
Although numbers of statutes are designed to afford whistleblowers legal protections, company retaliation is common. Company threats, intimidation, and efforts to disparage whistleblowers or potential whistleblowers are frequently evidenced.
Moreover, companies which include unlawful activity as an essential element to their business models, often require new hires to sign nondisclosure and non-disparagement agreements. Additionally, as part of employee severance packages, exiting workers are frequently required to sign similar nondisclosure and non-disparagement contracts.
In settlement agreements, which usually includes a financial payout by the offending company, there is generally no admission of wrong-doing. Whistleblowers are again most often (not always) required to sign nondisclosure and non-disparagement agreements. As such, the public learns little about what really is happening.
The following email was submitted in public record evidence against a certain dental chain, in a civil lawsuit. The legal action among other issues alleged the parent company forced defective quality laboratory work upon doctors and their patients. The email’s author was a dental chain corporate officer, and the recipient was a former sub-franchise owner dentist.
“Doug,
I couldn’t agree with Cindy more.
Go f*** yourself, and do us all a favor and never say you ever knew us.
You worthless, despicable piece of s***.
This will follow you forever, but maybe you’ll do the world a favor and disappear.”
Employers may create hostile workplaces for employees who decline to work under unsafe conditions, such as with mercury spills.
Employment hours may be reduced accompanied by threats and cursing.
In research for this article, a vast number of dental industry whistleblowers were contacted. Almost all declined to be interviewed on-the-record, because of contract obligations and fear of retaliation by former employers.
WHISTLEBLOWERS WITH MEDICAID MCOs
Some of the most fascinating alleged fraud centers around alleged misrepresentations proffered by dental Medicaid management service organizations (MCOs) to respective states like Texas, in order to gain contracts to administer a state’s dental Medicaid program. Such whistleblowers merit protections.
A lack of full transparency by bidding MCOs has led to rejection of the apparent lowest bidders.
Such was recently the case in Arkansas.
Other times, there exists alleged collusion between a state’s dental Medicaid director and an MCO, to deny patient access for certain providers and effectively excluding them as Medicaid providers, as was allegedly evidenced in Tennessee and Massachusetts.
Disadvantaged patients may be denied access to care. Providers may be denied access to patients.
However, states save money and willingly share their savings with an alleged accomplice MCO.
CONCLUSION
Edwin J Zinman, DDS, JD explained “A whistleblower has to decide which direction his/her moral compass is pointed. In the dental community some dentists (and DSOs) may try to defame the whistleblower. However, if convicted of dental fraud the fraudulent dentist (or DSO) would likely be reluctant to blame the whistleblower and further publicize their fraud.”
“In any defamation case- truth is a defense to defamation. I have not seen violating dentists (or DSOs) filing defamation cases against a whistleblower for that reason.” (Author’s note: although rare, I have provided consultation to a whistleblowing dentist who was a defendant in a defamation lawsuit.)
Zinman added, “Whistleblowers in qui tam suits can recover a portion of the monies the government collects from the wrong-doing dentist (or DSO) for dental fraud. Also reporting tax evasion provides a portion of the taxes and penalties due to the government as an incentive reward to the whistleblower.”
Greenwald was asked if he would step forward again. “Personally, with all the stress, anxiety, (slow) wheels of justice process, and last minute mudslinging as THEIR last minute Hail Mary to discredit me…. I’d do it again, month after month, year after year.”
ABOUT THE AUTHOR
Dr. Michael W. Davis practices general dentistry in Santa Fe, NM. He also provides attorney clients with legal expert witness work and consultation. Davis also currently chairs the Santa Fe District Dental Society Peer Review Committee. He can be reached at MWDavisDDS@Comcast.net.
