A new federal program that will reward whistleblowers who help the government successfully prosecute corporate wrongdoing could incentivize long-term care workers to dig into their facilities’ records and cause added hassles for operators who ignore internal reports.

Overall, the new program should not be seen as an existential threat to nursing homes, according to two legal experts, but it does raise the specter of a new class of professional whistleblowers who employ fresh data-gathering technologies to make providers’ lives more difficult.

The program’s primary goal is to strengthen compliance and self-reporting, according to Thomas H. Barnard, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz.

“This program could easily be misunderstood as a path toward ‘easy money,’ which it really is not,” Barnard, coordinator of the firm’s Healthcare Investigation Response Team, wrote in an email to McKnight’s Long-Term Care News on Tuesday.

Even so, some employees and former employees could see the program as encouragement to bring prosecutors heaps of data that can be used to question nursing homes’ practices. 

The US Department of Justice’s Corporate Whistleblower Awards Pilot Program went into effect Aug. 1. While it does not specifically address nursing homes or the long-term care sector, a background statement notes that it will fill in “important gaps” in current programs and also “supercharge” prosecutions. 

The program also encourages companies to strengthen internal compliance programs as a platform where employees should report misconduct before acting as a government whistleblower. The Department of Justice document notes that, if an employee submits a whistleblower report within six months of the internal report, they may still be eligible for a reward. 

“Internal reports may be a factor that increases an award,” the DOJ said. 

Barnard explained that the new program makes clear that employers must take internal reports seriously. 

“The threat here is to ignore the clear warning sign … [and] if you ignore and don’t listen and respond to complaints, you run the risk of people being incentivized to report,” Barnard said. 

He recommended that nursing home owners and operators educate employees on their rights and ensure that those rights will be respected. The idea that this new program, which focuses on criminal investigations and forfeiture, will turn into a get-rich-quick scheme isn’t realistic, he added. 

“That lack of understanding, given there is no need to go through the burden of hiring an attorney or filing a lawsuit to get the potential benefit, may cause some inquiry and investigation that could otherwise be avoided,” Barnard said. 

‘Litigation game’ has changed

The new program could incentivize a different kind of whistleblower, warned 

Kara Silverman, a partner at Arnall Golden Gregory with extensive experience in government investigations and litigation, particularly in healthcare law. The threat of professional whistleblowers who are combining AI and data mining technologies could be a potent combination. 

Those technologies can sort through large volumes of data that, prior to their arrival, were cumbersome and time consuming. 

“It’s clear that the whistleblowing litigation game has been changed,” Silverman wrote in a post on her firm’s blog, titled, “Wave of the Future: Are AI and Data Mining the Next Generation of ‘Professional Whistleblowers’?”


A major threat to the long-term care sector is professional agitators using publicly available information such as Medicare data to file qui tam cases, Silverman wrote in her post. She referenced a 2021 case against 11 skilled nursing facilities, two individuals and a management company that was initiated by reporting from Integra Med Analytics, which describes itself as offering “expert analysis to tackle fraud, waste, and abuse in healthcare.” The US Attorney for the Southern District of New York is still pursuing that case, which involves allegations of False Claims Act violations over excessive billing and prolonged rehabilitation stays. 

“Litigants must continue to be vigilant in asserting defenses based on who has standing to bring these claims,” Silverman wrote.