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The Patient Protection and Affordable Care Act and How It Affects the Whistleblower

Long existing solely as debate between opposing sides of the political aisle, the battle for examining the United States’ healthcare system witnessed actual movement in 2010 with the passing of the Patient Protection and Affordable Care Act (ACA or commonly referred to as its politically coined nickname, Obamacare).  The bill completely revised national healthcare with the intent…

The Patient Protection and Affordable Care Act and How It Affects the Whistleblower

Edward Kang and Michael Chiumento, Clerk

Introduction

Long existing solely as debate between opposing sides of the political aisle, the battle for examining the United States’ healthcare system witnessed actual movement in 2010 with the passing of the Patient Protection and Affordable Care Act (ACA or commonly referred to as its politically coined nickname, Obamacare).  The bill completely revised national healthcare with the intent of not only vastly increasing the number of citizens covered but also decreasing their out of pocket costs to obtain coverage.  Since its enactment, however, it has experienced countless attacks, mostly from the right, with regard to whether it is constitutional.  In 2012, the United States Supreme Court famously ruled in National Federation of Independent Business v. Sebelius that the bill is, indeed, constitutional by a 5-4 vote.
Past new healthcare operations, new whistleblower protection was also built in to Obamacare to go hand in hand with the shifting landscape.  Whether Obamacare as a whole positively or negatively impacts the healthcare system may depend on one’s own personal views, but the bill does, without a doubt, establish new whistleblowing measures to accompany the new healthcare provisions.
The inner workings of the various whistleblower protections enacted by the Patient Protection and Affordable Care Act are rather complex, as they exist in different capacities depending on the situation – i.e., While the protections affect some cases more so than ever, these protections may not apply at all in some cases.  Also, due to the manner in which the bill was intended to be put into effect over the next few years, some specificities may not apply in practice for some time.  Overall, however, Obamacare made many positive implementations to whistleblower laws.
Claims Filed With Regards to Title I and Tax Credits
Obamacare is broken up into numerous parts that serve different purposes.  Although it has many pieces, whistleblower claims filed throughout the bill follow a process similar to most areas of the general work force as The Occupational Safety and Health Administration (OSHA) is tasked with responding to filed claims.  Title I of the bill deals with the most conventional occurrences of health care, such as hospital, clinical, and physician care.  It also stands as the section of the bill which finds the strongest protection from any form of retaliation resulting from whistleblowing on fraud, waste, or other violations.  The activities that are protected by these prohibitions are as follows:

·         providing information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to:  the employer, the Federal Government, or the attorney general of a state;

·         testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so; or

·         objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA.

A second provision that the Occupational Safety and Health Administration lists under the same provisions is a part of Section 1558 which amends the Fair Labor Standards Act of 1938 by adding section 18C.  The Fair Labor Standards Act was established as a means to completely reinvent the American workplace by instilling broad revisions to the expectations set forth by American businesses.  Under the bill, the country witnessed new labor hours, overtime compensation, a minimum wage, and the addressing of the issue of child labor. In the context of Obamacare and what amendment 18C to the Fair Labor Standards Act actually accomplishes, it is important to have a basic understanding of the state and federal “exchanges” set forth by the health care bill.  These exchanges serve as marketplaces for customers to compare various private health care providers’ prices in order to seek one out that makes the most financial sense.  Section 1402 of Obamacare allows for consumers purchasing health care through an exchange to receive a cost-sharing reduction.  Section 18C applies to these citizens as well as those who may receive a tax credit under Section 36B of the Internal Revenue Code of 1986.  18C prevents any retaliation in these two instances (i.e., when an employee either receives a tax credit or a cost-sharing reduction).

Section 1558 sets clear standards in barring retaliation by employers who engage in retaliation such as intimidation, termination, discipline, and blacklisting in settings specified under Title I.  The remedies provided for the whistleblower if retaliation is found include reinstatement, back pay with interest, the payment of compensatory damages, the payment of attorneys’ fees, and the payment of expert witness fees.

The False Claims Act

Preexisting whistleblowing statutes also find themselves involved in the subsections of Obamacare as the new healthcare bill subjects some actions related to its exchanges to potential treatment under the False Claims Act.  These actions are stated as “payments made by, through or in connection with an exchange” by Section 1313 and fall under the False Claims Act.  In the context of healthcare, the False Claims Act’s existing governance applies in instances where an invoice for health care service through an exchange containing overcharges is knowingly presented.  In these cases, there is the potential for a civil penalty which may include a fine up to $10,000, a penalty between three and six times the overcharge, as well as repayment to the federal government for any costs it incurred in bringing about the civil action.  Interestingly enough, much like how Dodd-Frank greatly expanded existing durations and amounts, Obamacare doubles the maximum penalty of the False Claims Act from three to six times the amount.

A False Sense of Security

A large number of employees and consumers seeking to report fraudulent conduct may be thankful for the many protections that Obamacare provides, but as mentioned above, the bill must be read very cautiously to ensure that one may actually receive any protection at all.  Specifically, only Title I instances of retaliatory activity by an employer grant whistleblower protection by Section 1558 to the wronged employee.  Those falling under Title II through Title X are not protected by Section 1558.  The following are some of the common settings in which a claim would NOT be protected:

·                     administration of Medicare and Children’s Health Insurance Program Expansion

·                     Medicaid, Medicare and CHIP program integrity

·                     Nursing home care for the elderly

·                     Innovative treatment and therapies

·                     Payments and reimbursements (not through exchanges)

·                     Prescription drugs and preventative care

·                     House-call visits

·                     Expansions of and increasing in training for the health care workforce

·                     Grants for the expansion of health care to under-served populations

Given the large number of unprotected areas, many false claims may go, unfortunately, unnoticed or unreported as many employees who know of them would be in fear of the potential consequences of blowing the whistle without protection.

The Procedure of Investigating a Retaliation Complaint

While the whistleblowing process may take many different forms, the process of filing a complaint of retaliatory behavior under Obamacare is rather straightforward.  Possessing a statute of limitations from the time of the violation of 180 days, the method of reporting maintains one direct route.  All complaints against an employer are filed with the OSHA through either an oral complaint by telephone or in person, or through a written complaint in fax, electronic, or mail form.  The administration then determines the validity of said complaint and, upon conducting an investigation, issues its order against the employer.  Barring an appeal within thirty days of the ruling, OSHA’s order is final and the process is complete.  If either the employer or the employee seeks an appeal, there may be a hearing before an administrative law judge of the Department of Labor.  All in all, the procedure is rather simple in that there is one path to be taken in all cases.

Conclusion

The Patient Protection and Affordable Care Act stands as one of the most controversial pieces of legislation to find its way into law in the history of the United States.  With 37 repeals of at least some parts of the bill in the house since its passage just three years ago, it remains clear that health care is a pisive issue on the political spectrum.  Be that as it may, the law of the land is Obamacare, at least for now, and with it, comes many accompanying measures to boost whistleblower action in health related fields.  Among those protected fields are hospital care, clinical care, physician care, and activity related to the new health exchanges created under the bill.  These advances are empowering steps in continuing the strong stand in recent law of furthering the protection of whistleblowers.  But one must wonder if the ultimate legacy of the bill with regard to the whistleblower will be the positives it brings to the table.  Only time will tell if the lasting memory of Obamacare will instead be the negative implications of continuing to leave so many areas of healthcare completely open for retaliation against reported misconduct.

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