Ongoing review of the Patient Protection and Affordable Care Act (“PPACA”) is much like a long hike through an unfamiliar forest; each time we go around a turn, we find something that we have not seen before.  Included in its many provisions, the PPACA contains whistleblower protection for persons who report abuses or fraudulent conduct in the delivery of health care.

The PPACA whistleblower provisions amend the Fair Labor Standards Act (FLSA).  The amendment provides protection to employees who report fraud waste and other violations under Title I of the PPACA, which applies to “conventional” medical care settings (i.e., hospitals, clinics and physician offices), and other violations in individual and group health plans covered by Title I of the PPACA.   The amendment does not, apparently, extend to violations of Titles II through X of the PPACA.  Thus, unprotected employees would include those working in administration of Medicare and Children’s Health Insurance Program (CHIP) expansion, Medicaid, Medicare and CHIP program integrity, nursing home care for the elderly, innovative treatment and therapies, payments and reimbursements, prescription drugs and preventative care, house-call visits, expansion and increasing training for the health care workforce, and grants for expansion of health care to under-served populations.  Protected activity under the PPACA provisions includes situations where an employee:

1.         provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to the violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of this title

2.         actually did or is about to assist, participate, or testify in a proceeding about such violation, or

3.         objected to or refused to participate in any activity or task that the employee “reasonably believed” to be in violation of the statute or any rule or regulation promulgated under the statute.

An employee who believes he or she suffered discharge or discrimination in violation of this new amendment to the FLSA would file a complaint with the U.S. Department of Labor (DOL).  The DOL would then go through an administrative process to determine whether the employee’s protected conduct was “a contributing factor in the unfavorable personnel action” and, once the administrative process is exhausted, the employee may file a civil action in federal court.  A mixed motive analysis applies to these cases and an employer may avoid liability if it demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of the protected activity.  Remedies available to the aggrieved employee include reinstatement with seniority and benefits, back pay, compensatory damages, costs, and attorneys’ fees.