New Obamacare Regulation Invites Whistleblower Complaints

Susan Jones | February 23, 2013 | 11:25am EST
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President Barack Obama fist pumps with a health-care professional at the White House on March 3, 2010. (White House Photo/Pete Souza)

( – The Affordable Care Act sets up a new arena of whistleblower protections for employees who complain that their company-provided health insurance doesn’t do what it’s supposed to do.

On Friday, the Labor Department’s Occupational Safety and Health Administration (OSHA) published an interim final rule in the Federal Register that establishes procedures and time frames for handling retaliation complaints filed under Section 1558 of the Affordable Care Act.

For example, if an employer-sponsored health plan doesn’t provide an employee with no-cost contraceptives or sterilization – or any other “essential health benefit" -- that employee may complain without fear of retaliation.

Whistleblower complaints may also arise in cases where a large employer does not offer a health insurance plan that meets certain levels of affordability and minimum value. In those cases, the company may be penalized if any of its full-time employees receives a tax credit or subsidy through an Obamacare insurance exchange. That could create an incentive for an employer to fire or lay off an employee.

Section 1558 of the Affordable Care Act protects employees against retaliation for reporting alleged violations of Title I of the Affordable Care Act. Title I requires most health insurance plans to provide certain “essential health benefits,” which were later defined to include no-cost contraception and sterilization. Title I also bars lifetime limits on insurance coverage and exclusions due to pre-existing conditions.

The regulation published on Friday says if an employee is retaliated against in violation of the whistleblower provision, he or she may file a complaint with, and ultimately receive relief from, OSHA or the courts.

The rule says complaints must be filed within 180 days after an alleged violation occurs.

It also says an employer may be found to have violated the ACA if the employee’s whistleblower complaint – or support for someone else’s complaint -- led to one of the following actions:

Fired or laid off; blacklisted; demoted; denied overtime or promotion; disciplined; denied benefits; was not hired or rehired; intimidated; threatened; reassigned/affecting promotion prospects; reduced pay or hours.

A fact sheet about filing whistleblower complaints under the Affordable Care Act can be found here.

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