Whistleblower Actions Recognized in Missouri
In 1985, a claim of wrongful discharge for whistleblowing was first recognized in Missouri with the Court of Appeals decision in Boyle v. Vista Eyewear, Inc., 700 S.W. 859 (Mo. App. 1985). That decision held that an at-will employee may not be terminated for (1) refusing to perform an illegal act or (2) reporting wrongdoing or violations of the law to superiors or third parties. Boyle and subsequent appellate decisions recognized a cause of action when the employee was discharged in violation of a clear mandate of public policy as expressed both in the letter and purpose of a constitutional, statutory or regulatory provision or scheme.
An employee claiming wrongful discharge must plead and prove (1) that he reported to his superiors or public authority serious misconduct by the employer that (2) constituted a violation of the law and of well established and clearly mandated public policy.
Three important wrongful discharge decisions were decided in 2010:
In Fleshner v. Pepose Vision Institute, P.C., No. SC90032 (Mo. en banc), the Court overruled prior decisions requiring the employee to prove that the whistleblowing activity was the exclusive reason for the termination of employment and held that all the employee needed to prove was that the whistleblowing activity was a contributing factor to the decision to terminate, the same standard applied in claims of discrimination under the Missouri Human Rights Act. It is sufficient that the protected activity be simply a factor in the terminating decision. If the jury determines that it was, that is sufficient to award a verdict for the employee.
In Keveney v. Missouri Military Academy, No. SC89925 (Mo. en banc), the Court expanded whistleblower protection from just “at-will” employees to all employees, including those who are employed under a contract of employment. Since the Boyle decision in 1985, Missouri courts had limited whistleblower claims to at-will employees—those who can be terminated for any reason and not just the reasons set forth in an employment agreement. In making this decision, the Court concluded that limiting the tort to at-will employees ignores the underlying purpose of the wrongful discharge cause of action and there was no justification for distinguishing application of whistleblower protection between employees under contract and those employed at will.
In a pro-employer decision, the older broad definition of the source of the public policy was substantially narrowed in 2010, by the Supreme Court of Missouri in Margiotta v. Christian Hospital Northeast Northwest d/b/a Christian Hospital and BJC Health System, No. SC 90249 (Mo. en banc). In Margiotta, the Court held that the tort would arise only in those situations where the constitutional provision, statute, regulation or rule promulgated by a governmental body explicitly articulates the public policy such that it “clearly gives notices to the employer and employee of its requirements.” This decision precludes claims based on an interpretation of the purpose or intent of the law by a judge—the statute or regulation must be specific; vague or general laws or regulations are insufficient.
What This Means to Employees
Whistleblower claims are, in essence, retaliation claims that employers face under federal, state and local employment discrimination laws, the National Labor Relations Act and a host of specific whistleblower claims created by state and federal laws. The take-away from these decisions for Missouri employers is that the normal mental checklist of potential exposure for decisions to terminate employees should include consideration whether that decision was motivated at all by complaints the employee has made to superiors or to outside agencies about serious misconduct that constitutes a violation of law and of well established and clearly mandated public policy.
Whistleblowing and Medicaid Provider Fraud
The Attorney General’s Office investigates fraud or abuse committed by providers of services (such as doctors, dentists or home health agencies) to Medicaid participants, formerly known under the law as recipients. The Attorney General’s Office does not have statutory authority to investigate fraud committed by Medicaid participants (such as persons who may be concealing income to receive Medicaid services). The Department of Social Services has that authority. Medicaid providers include doctors, dentists, hospitals, nursing homes, pharmacies, clinics, counselors, personal care/homemaker chore companies, and any other individual or company that is paid by the Medicaid program. If a provider intentionally misrepresents the services rendered, and therefore increases the reimbursement from Missouri Medicaid, provider fraud has occurred.
What does the Attorney General’s Medicaid Fraud Control Unit do?
The unit conducts fraud and abuse/neglect investigations on health care providers receiving payments from the Medicaid program. They obtained more than $50 million in judgments and recoveries for Missouri that had been stolen by Medicaid fraud, as well as obtaining 12 state criminal convictions for Medicaid fraud in 2012.
What are some examples of provider fraud that an employee may blow the whistle on?
- Billing for any services not actually performed, known as phantom billing;
- Billing for a more expensive service than was actually rendered, known as upcoding;
- Billing for several services that should be combined into one billing, known as unbundling;
- Billing twice for the same medical service;
- Dispensing generic drugs and billing for brand-name drugs;
- Giving or accepting something in return for medical services, known as a kickback;
- Billing for unnecessary services;
- False cost reports;
- Embezzlement of participant funds; and
- Falsifying timesheets or signatures in connection with the provision of personal care services.
How can I qualify as a Medicaid fraud whistleblower?
Section 191.907 of the Revised Statutes of Missouri allows any person who reports MO HealthNet fraud to receive 10 percent of the amount recovered by the state through the use of that person’s information. To qualify for this incentive, you must meet three criteria:
- You must be the original source of information, meaning the information must not be already known to the government or public;
- You must not have planned, initiated or participated in the fraud being reported; and
- The information you submit must be used by the Attorney General to bring a civil action for recovery of expenditures made by the MO HealthNet Program.
You may call the Medicaid Fraud Hotline toll free at (800) 286-3932 or email firstname.lastname@example.org.
Who do you contact if you suspect Medicaid participant fraud?
Contact Department of Social Services, Division of Legal Services — Investigations Unit at (877) 770-8055, or you can e-mail the complaint email@example.com.
You may also send the complaint in writing to:
Department of Social Services
Division of Legal Services — Investigations Unit
P.O. Box 1527
Jefferson City, MO 65109