Carrie Cherveny

Whistleblower complaints are the main type of lawsuit against healthcare providers so far this year, but anxious operators don’t necessarily have to worry.

That’s because they already hold all the keys when it comes to building a strong defense, according to insurance and legal experts who participated in the 15th annual McKnight’s Online Expo.

“I read case after case of nurses and nursing directors who raised their hands throughout COVID to leaders in their organizations to identify breaks with safety protocols, breaks with COVID safety protocols, exposure cases, lack of PPE,”  said Carrie Cherveny, Esq., senior vice president of strategic client solutions and compliance at HUB International. “And those employers, instead of being applauded for bringing it to the employers’ attention, were summarily terminated.”

In some cases, the termination may be deserved for unrelated reasons. But how can providers protect themselves in the case of employees who contest their firing under whistleblower acts?

“There’s a real fundamental, easy answer,” Cherveny said. “Take the complaint seriously.”

Employers should not only listen to employees’ concerns, they should investigate them and do so in accordance with carefully laid out policies and procedures. Providers who develop, test and enforce standards — and follow them consistently — will have a stronger defense if challenged in court.

Cherveny also said providers should consider using whistleblower services, such as hotlines employees can call to unanimously report concerns. Documenting how complaints are investigated and handled is critical.

“You have an absolute obligation to put protocols and systems in place associated with negligence,” Cherveny said. “If you pay attention to duty and breach, you’ll protect the business.”

Ric Poirier, a provider attorney at Louisiana-based Blue WIlliams LLC, said complacency is a major threat to providers a year into COVID-19.

“People are tired of wearing masks. People are tired of having their temperatures taken when they walk in,” Poirier said. “But it has to be done.”

Smart moves prevent regulatory and civil actions

During underwriting, insurance companies are asking for more information about COVID-19 responses and how well providers follow their own protocols, added Jordan Parnell, senior living practice leader for HUB.

Going through those practices on behalf of the insurer gives providers another opportunity to spot weaknesses in its COVID-19 policies and make needed additions or updates, said Pete Reilly, HUB’s North American healthcare practice leader.

Williams moderated a March 18 Expo session titled, “Hidden risks in your COVID safety and vaccine programs.”

Careful policies also can protect providers from additional enforcement actions, the speakers noted. Cherveny detailed increased support for the Occupational Safety and Health Administration, which received more than $100 million in additional funding through the American Rescue Plan.

This month, the agency announced a new, 12-month National Emphasis Program targeting skilled nursing facilities and others whose companies “put the largest number of workers at serious risk of contracting the coronavirus.” The initiative is designed to increase inspections, outreach and compliance efforts, but it also will focus on employers that retaliate against workers for making complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law, the Department of Labor said.

Also of note, providers should remain on the lookout for EEOC complaints related to mask wearing exemptions and vaccination mandates. It remains unclear whether mandates will be backed by court rulings as they have for decades, Cherveny said. A test case in New Mexico is still unfolding.

“We’ve seen Hep-B, we’ve seen flu shots, but none of those vaccines historically have been under emergency use authorization,” Cherveny said. “So we really don’t know about the courts’ willingness to support an employers’ workplace vaccination program.”

While enforcement is ramping up. Poirier said lawsuits hadn’t yet skyrocketed in the time of COVID-19, thanks in part to early PREP Act protections. But as deadlines for filing approach, that could be changing.

“If I were a betting man, I’d say it’s only a matter of time,” Reilly said. “The plaintiffs’ bar has too much incentive otherwise.”