Department of Labor Issues Rules to Protect Affordable Care Act Whistleblowers

By on February 25, 2013

On February 22, 2013, the Department of Labor issued its interim final rule providing procedures and deadlines for handling whistleblower complaints under the Affordable Care Act (ACA).  The rule is expected to become effective February 27, 2013. The ACA amended the Fair Labor Standards Act to provide protections, such as prohibiting retaliation for employees and third parties similar to those of other protected whistleblowers, for providing information about violations of Title I of the ACA, including denial of insurance because of pre-existing conditions, using factors like medical history to set premium rates, or receiving health insurance tax credits that could translate to a tax penalty for certain employers.

The whistleblower provisions state that retaliation complaints (written or oral and not required to be in English) must be filed within 180 days of the alleged violation, namely when the retaliatory decision is made and communicated to the employee. The complaints need only inform OSHA of the retaliation alleged and that the employee wants the agency to look into it. OSHA must issue findings within 60 days of the filing of a complaint on whether reasonable cause that the complaint has merit.  Then complaintant has 90 days to file suit or 210 days if no final OSHA decision occurs.

Since the ACA’s enactment in 2010, there have been 4 whistleblower cases in 2010, 14 in 2011 and 14 in 2012.  With the implementation of the ACA and its numerous provisions and uncertainty, whistleblower complaints are likely to increase.