‘Best Practice’ Whistleblower Rights Apply to Basic Medical Care Providers

(Washington, D.C.) – The Government Accountability Project (GAP) today praised “best practice” anti-retaliation whistleblower rights in the Patient Protection and Affordable Care Act signed into law by President Obama. The law provides protection for workers who challenge breakdowns in the provision of most medical care, including upcoming medical exchanges.

Specifically, the new law has best practice whistleblower protections covering hospital employees across the country, along with employees of direct care providers.

Inexplicably, however, the accountability shield only applies to Title I out of nine in the law. GAP Legal Director Tom Devine explained, “The health reform law has gold standard rights for those who challenge patient care breakdowns, fraud, waste or abuse in traditional medical care settings. There is no excuse, however, to leave whistleblowers defenseless who challenge integrity breakdowns in the rest of this massive law.”

Whistleblower protections for the new law are in sections 1558 and 2706(b) of Title I, covering the basic provision of medical care. They are identical to those passed by Congress in 2008 for retail employees in the Consumer Products Safety Improvement Act, and consistent with seven other national corporate whistleblower laws campaigned for by GAP and enacted by Congress since 2005. The rights include:

  • protection for refusing to violate the law, or public or private whistleblowing disclosures
  • an administrative investigation and hearing at the Department of Labor to challenge any discrimination
  • access to court for a jury trial if the Department of Labor (DOL) has not provided relief sought by the whistleblower within 180 days, or within 90 days of an adverse ruling
  • legal burdens of proof so employees can prove a case by demonstrating that whistleblowing or refusal to violate the law was a “contributing factor” in getting fired or other discrimination, after which employers must prove by clear and convincing evidence that they would have taken the same action anyway for independent reasons had the whistleblowers remained silent
  • reinstatement, compensatory damages, attorney fees and any other relief necessary to “make whole” whistleblowers who win their cases
  • bans on gag orders conflicting with the law’s free speech rights that employers often impose as a job prerequisite
  • bans on company-financed arbitrations imposed as substitutes for statutory rights like DOL hearings or jury trials –.also imposed frequently as a condition of employment.

Unfortunately, employees falling outside of Title I (the new law’s core provision for medical care in conventional settings) are not covered. Those workers will proceed at their own risk against fraud, waste or abuse for these other types of activities, including those involved in Medicare and Children’s Health Insurance Program (SHIP) expansion; Medicare, Medicaid and CHIP program integrity; nursing home care for the elderly; innovative treatment and therapies; payments and reimbursements; prescription drugs; preventive care; expansion and increased training of the health care workforce; house-call visits; and grants for expansion of care to under-served populations.

Partially compensating for the loophole, the new law makes it easier to file False Claims Act suits against fraud for any provision, including the new “exchanges.”

The loophole for eight out of nine titles comes despite a January letter from 46 patient care, taxpayer, consumer, community and public interest organizations both for and against the legislation, who had protested:

Protection for corporate employees defending part of a statute would be unprecedented. Every corporate whistleblower provision ever passed has covered the entire law that it was part of. The loophole also would cut back on accountability boundaries in the stimulus law, which has whistleblower protection for all medical care stimulus spending recipients.

GAP will keep trying to close this accountability loophole in any future, relevant legislation.

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.