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
millions of 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.
