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See Something, Say Something: Protecting Workers Who Report Affordable Care Act (ACA) Violations

By Tammy Marzigliano and Kendall Onyendu

As patients pour into hospitals and healthcare facilities during the COVID-19 emergency, health insurance coverage becomes more important than ever. The Affordable Care Act prohibits insurers from unlawfully denying coverage to patients, and it also prohibits employers from retaliating against employees who report the wrongdoing. These whistleblowers may prove to be critical in the fight against the current coronavirus pandemic.

The Affordable Care Act Protects Individuals With Pre-Existing Conditions

Many out-of-work Americans have lost their employer-provided health insurance and are now scrambling to obtain private coverage. Others have been without health insurance for some time, opting to avoid high premiums and gamble on continued good health. As the coronavirus pandemic sweeps the nation, many of the uninsured are attempting to gain coverage on the open market.

The Patient Protection and Affordable Care Act, more commonly known as the Affordable Care Act or the ACA, protects individuals seeking health insurance from  discrimination based on their past or ongoing health conditions. The Affordable Care Act prevents health insurers from denying coverage to people with pre-existing conditions, charging people with pre-existing conditions more for premiums, deductibles, or copays, and enforcing "lifetime caps" on the amount of coverage they will pay. It also requires that policies cover essential health benefits, including emergency room and hospitalization visits. 

An insurance company employee who suspects their employer is improperly denying coverage to applicants because of pre-existing conditions, providing legally inadequate coverage to patients, or otherwise violating the ACA, are protected from retaliation if they report their concerns to their employer, the federal government, or their state's attorney general

Whistleblower Protections Under the Affordable Care Act

The ACA protects all employees who report wrongdoing under the Act from whistleblower retaliation by their employer. They are also protected if they testify, assist, or participate in a proceeding involving their employer's alleged wrongdoing under the ACA. The Act further protects individuals who object to or refuse to participate in any activity that violates the Affordable Care Act.

A whistleblower complaint must allege four key things:

  • The employee participated in a protected activity, like making a complaint;
  • The employer knew about, or suspected, that the employee engaged in protected activity;
  • Their employer engaged in a retaliatory action against them; and
  • The retaliatory action was caused by the employee's participation in protected activity. 

Retaliation includes actions that negatively affect an employee's pay, position, or other terms of employment, such as:

  • Termination or demotion
  • Involuntary transfers to less desirable shifts or locations
  • Loss of opportunity
  • Subtle acts of discrimination

However, just because an employee engaged in protected conduct doesn't mean they will be protected from retaliation in every case. If an employer can show that the negative action taken against the employee was made for another reason, not the whistleblowing, the employer may not be held liable for retaliation. Further, the Affordable Care Act's whistleblower provision does not cover Medicare and Medicaid fraud or patient abuse. However, employees reporting those types of violations may still have protection under the False Claims Act (FCA) and New York Labor Law 741.

Bringing a Whistleblower Claim Under the ACA

A whistleblower who brings a successful claim for retaliation under the Affordable Care Act can recover back pay with interest, compensation for special damages (including emotional distress, mental anguish, humiliation, and injury to reputation), attorney's fees and litigation costs, and possible reinstatement. Claims can be made directly to the Occupational Safety and Health Administration (OSHA), but they must be initiated within 180 days of the termination or negative employment action. 

While it's not necessary to hire an attorney to file a claim, an experienced whistleblower retaliation lawyer can help you understand your rights under the Affordable Care Act and other whistleblowing statutes. The attorneys at Outten & Golden can help you evaluate your claims and ensure that you file the appropriate claims correctly and promptly.