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Department of Labor Expands Whistleblower Protection Under Affordable Care Act

February 26, 2013 | No Comments
Posted by Frank Ciesla

Below is a link to the Department of Labor’s website in regard to its proposed regulations expanding whistleblower protection to individuals who complain about the actions taken under the Affordable Care Act.

The difficulty for the employers in this situation is the fact that they are looking at an Act that covers almost 2,000 pages and has thousands of pages of implementing regulations.  There is no question that this is and will continue to be a complex area of the law, particularly as the various government agencies continue to issue implementing regulations.  Employers, insurers, and health care providers all have to pay attention to both the statute and its implementing regulations so as not to cause an inadvertent violation that can form the basis of a whistleblower suit.

Below is the summary of the new rule.  The DOL’s Occupational Safety and Health Administration requested comments on the rule, which will become effective when it is published in the Federal Register on Feb. 27. The comment period runs for 60 days after publication.

Interim final rule: Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act

http://www.dol.gov/find/20130222/OSHA2013.pdf

DOL News Release: http://www.dol.gov/opa/media/press/osha/OSHA20130327.htm

A fact sheet about filing whistleblower complaints under the ACA: http://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf.

SUMMARY: This document provides the interim final regulations governing the employee protection (whistleblower) provision of section 1558 of the Affordable Care Act, which added section 18C of the Fair Labor Standards Act, to provide protections to employees of health insurance issuers or other employers who may have been subject to retaliation for reporting potential violations of the law’s consumer protections (e.g., the prohibition on denials of insurance due to pre-existing conditions) or affordability assistance provisions (e.g., access to health insurance premium tax credits).

The protections provided by section 18C will extend in 2014 to cover retaliation with respect to an employee’s compensation, terms, conditions or other privileges of employment by health insurance issuers offering group or individual health insurance coverage regardless of whether those issuers are the employer of the person retaliated against.

Since the enactment of the Affordable Care Act, a health insurance issuer is prohibited from retaliating against its own employees who engage in activity protected by section 18C. Beginning in 2014, those issuers will also be prohibited from retaliating against persons who are not their employees with respect to those persons’ compensation, terms, conditions or other privileges of employment, including their employer-sponsored health insurance. An employee will be protected from retaliation (e.g., having that issuer limit or end health insurance coverage), not only by her employer, but also by the insurance issuer that provides employer-sponsored health insurance coverage to the employee.

Section 18C of the FLSA provides protection for an employee from retaliation because the employee has received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction (referred to as a “subsidy” in section 18C) under the Affordable Care Act section 1402, 42 U.S.C. 18071, or because the employee has engaged in protected activity pertaining to title I of the Affordable Care Act or any amendment made by title I of the Affordable Care Act.

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