Obamacare (PPAPA) Whistleblower Provisions

The Patient Protection and Affordable Care Act of 2009 (H.R. 3590, aka PPACA) includes a number of whistleblower clauses, with some focused specifically on long-term care.

The broadest provision (Act Section 1558) added whistle blower protection to the Fair Labor Standards Act, referenced only to Title I provisions in the bill (critics wonder why not Titles 2 – 9, but there are other pre-existing regs in the federal (and state) law).

Procedural and remedy sections are tied to and mirror the provisions in the Consumer Product Safety Improvement Act of 2008. These include a 180 day statute of limitations, initial complaints are filed with OSHA, options on litigation venues, a right to a jury trial, and a broad range of remedies. The causation and proof standards are very favorable to the employee, and may be an impossible standard for the employer .

Another Section, 6703(b)(3) creates an additional special responsibility for long-term care providers (on top of numerous other reporting regulations) to inform all officers, employees and contractors of mandatory reporting and whistleblowing situations.

Section 6105, specifically focused on long-term care adds a mandatory complaint form for each nursing home (more paperwork, yippee!) and a prohibition against retaliation. Each state must develop (another) process to track and investigate complaints.

Employer “gag order” policies are voided by employee free speech rights, although “gags” related to HIPAA privacy and related issues would appear to remain valid (whistleblowing should be done through government channels therefore not violating HIPAA regs).

Employers may not use mandatory arbitration clauses to bypass or void these statutory rights.