Reporting Suspected Healthcare Fraud on a Work Visa

The healthcare industry is the most reported fraud by whistleblowers that result in recoveries and awards under the False Claims Act. This is largely because the healthcare industry–including pharmaceutical companies–cover an expansive scope of issues and there’s hundreds of billions of dollars in play, if not trillions. For individuals on a foreign work visa, encountering healthcare fraud can be particularly challenging due to unfamiliarity with the legal system and fear of potential repercussions on their visa status.

Given the propensity for fraud to take place in the healthcare industry, coupled with the high number of healthcare workers who are foreign nationals who have their immigration status tied to their employment, it is crucial for those with work visas to know their rights as potential healthcare whistleblowers. Just because you are on a work visa doesn’t mean you are powerless when you uncover wrongdoing in healthcare and you shouldn’t be made to feel like you have to submit to the misconduct. However, before you report any fraud internally or externally, you should consult with and probably retain a whistleblower law firm to assist, especially since the reporting may have immigration consequences to you.

Understanding Healthcare Fraud

Healthcare fraud involves the intentional deception or misrepresentation that results in unauthorized benefits or payments. Common examples include:

• Billing for services not rendered: Charging for medical services that were not actually provided.
• Upcoding: Billing for a more expensive service than the one performed.
• Kickbacks: Accepting or offering payments in exchange for referrals or services.
• Falsifying diagnoses: Manipulating patient records to justify unnecessary tests or procedures.

Rights of Whistleblowers on a Work Visa

Many people with work visas are hesitant to report any employer misconduct for fear of retaliation since their immigration status is tied to their employment. Fortunately, there are several legal protections to help ensure whistleblowers are protected, regardless of one’s immigration status. This list is not exhaustive.

• Federal False Claims Act (FCA)

The FCA is a statute that addresses fraud against federal programs or contracts. For example, cases involving fraudulent Medicare or Medicaid claims are cases under the FCA. ^[3] In regard to whistleblower protections, an employer is prohibited from firing an employee or otherwise retaliating against an employee for making a “protected disclosure”. A whistleblower’s disclosure is typically deemed protected if it is based on a reasonable belief that wrongdoing has occurred and it is made to a proper person or entity. Thus, if the individual reports fraud properly, then the employer can’t take an action against you or your immigration status. Furthermore, if the False Claims Act case is filed properly, then the case is filed confidentially so the defendant won’t know about it for quite some time.

The key to both of those concepts is to do things properly, and to function properly when there’s something as important as your immigration status, you need to rely on a retained counsel, not this blog, not other information you find online, but someone you retain to work with who can work the case and work to protect you. Both you and your whistleblower lawyer will be able to interface with the Department of Justice for the likely years it’s under seal and potentially discuss any immigration concerns with the DOJ.

• Employment Authorization Document (EAD) – Compelling Circumstances

There are situations where a foreign national is no longer able to continue working for their employer, the hardship is out of their control, and they may face serious harm as a result of the job loss. Discretionary temporary employment authorization can be granted by the U.S. Citizenship and Immigration Services (USCIS) in certain circumstances for those with approved employment-based immigrant visa petitions who face “compelling circumstances”. If granted, this allows the ability to remain in the United States and continue working for an authorized period of stay. One example where an EAD may be justified is when an applicant has been retaliated against by their employer because the applicant “is involved in a dispute regarding their employer’s alleged illegal or other forms of abusive conduct” such as a whistleblower action. ^[4]

In this case, the EAD applicant would submit substantiating evidence of the employer retaliation to support a finding that compelling circumstances exist. Typically, a timely and non-frivolous applicant will be not labeled as an unlawful presence during the EAD validity period.  If you filed a strong FCA case while asserting this route, it may assist in the government granting the visa, since you are helping the government, but there’s no guarantees. Plus, its delicate about how to raise it with immigration since the FCA is under seal, so there’s going to be a complex route to advance the case, as well as safeguard your EAD rights.  Please note firms that handle whistleblower matters like Brown, LLC, often focus on the litigation aspects of the case and to protect you, they may insist you hire an outside immigration counsel who knows the ins and outs of the immigration process to help your circumstances.

Protections for Whistleblowers

The US has robust protections in place for whistleblowers, including those who report healthcare fraud. The False Claims Act, for instance, allows individuals to file qui tam lawsuits on behalf of the government and potentially receive a portion of the recovered funds. Whistleblower protections are designed to prevent retaliation, such as job termination or demotion, ensuring that individuals can report fraud without fear of personal repercussions.

Understanding Whistleblower Protections

• Confidentiality: Many reporting mechanisms allow for anonymous or confidential submissions. Properly filing an FCA claim with an attorney can protect your identity and preserve your employment.
• Retaliation Protections: Laws protect whistleblowers from retaliation by their employers. It is against the law for an employer to fire or otherwise negatively impact an employee’s position as a result of whistleblowing.
• Financial Incentives: In some cases, whistleblowers may receive a portion of the recovered funds.

Whistleblowing in Healthcare

If you are a healthcare worker and suspect fraud or other violations are occurring, don’t let fear over your immigration status stand in the way of doing the right thing. Learn how to be a whistleblower in healthcare by speaking with one of our healthcare fraud attorneys.

Disclaimer: This article does not constitute legal advice or an attorney-client relationship. Contact an attorney for legal advice and assistance. Immigration laws and other laws are subject to change. Brown, LLC does not provide immigration advice, but can discuss your rights as a whistleblower.