Are You Familiar with the Affordable Care Act’s Anti-retaliation Rules?

Are you familiar with Fed-OSHA’s regulations on whistleblowing and employer retaliation under the Affordable Care Act.

The rules set forth procedures and time frames for reporting and processing whistleblower complaints by employees against their employers and expand the instances in which an employee can sue their employer for retaliation under the ACA.

OSHA has set a low bar for what it considers retaliation in these regulations.

The biggest threat to an employer is if they have employees who may file complaints if they feel slighted after their employer change their health plans or greatly increase the cost-sharing burden on them.

The rules

The ACA whistleblower regulations prohibit employers from retaliating against employees for, among other things:

  • Receiving a subsidy for a marketplace plan;
  • Raising concerns regarding employer practices that the employee believes violate the ACA;
  • Reporting ACA violations;
  • Cooperating with a federal investigation;
  • Participating and/or cooperating in a proceeding associated with an alleged or actual violation;
  • Refusing to participate in a policy or practice that would violate the ACA; and
  • Receiving a premium tax credit or a cost-sharing reduction for enrolling in a qualified health plan.

An employee who believes that he or she has been retaliated against in violation of Title I of the ACA has 180 days after the alleged retaliation to file a complaint with OSHA.

What constitutes retaliation?

Retaliation can include several types of action, such as:

  • Firing or laying off
  • Reducing pay or hours
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidating
  • Making threats
  • Job reassignment that affects prospects for promotion

OSHA has published the “Filing Whistleblower Complaints under the Affordable Care Act” factsheet on the complaint process. As an employer you should read it to understand the rules. You can find them here:

Employer best practices

Make sure that managers and HR personnel ensure strict confidentiality for employees’ ACA-related information and do not share it with other managers and supervisors.

Cover the regulations in your training and meetings for HR personnel, who in turn should train managers to ensure they understand the consequences of taking actions that may be construed as retaliatory.

Train managers on how to respond if an employee complains about their health insurance in light of the ACA. In such cases, the manager should refer the complaint to the HR or benefits personnel responsible for the company’s health insurance plan.


Retaliation scenario

Your HR department is notified by the Department of Health and Human Services that an employee has purchased coverage on a public insurance exchange and received tax subsidies to help pay for it.

An HR manager goes to the employee’s manager to complain, saying that it could cost the company a $2,000 penalty. The manager finds an excuse to reduce the employee’s hours and reassign him to a lesser position.

Help Your Employees Save Money on Drugs

Most employers are doing all they can to keep their employees’ health insurance and health care outlays to a minimum.

And while most of those efforts are focused on the upfront cost of insurance, co-pays and deductibles, many employers fail to help their employees control the very costs they actually have the most control over and one of those areas is medicine.

Helping your employees become wise consumers of health services can also cut your overall insurance costs as well as help your employees conserve more of their own funds if they have high co-pays and deductibles.

The cost of drugs can vary greatly between pharmacies to a shocking degree. And while your employees may have low co-pays for some drugs, if they go to the most expensive option when the insurance is covering the tab, it basically adds to the cost drivers for your insurance plan.

Here’s how wild the price swings can be. Consumer Reports recently surveyed pharmacies to price out a basket of five popular generic prescription drugs and here are the prices:

  • $66
  • Costco:  $150
  • Various independents: $107
  • Sam’s Club: $153
  • Walmart: $518
  • Kmart: $535
  • Grocery stores: $565
  • Walgreens: $752
  • Rite Aid: $866
  • CVS/Target: $928

It also pays to shop around from store to store and ask for discounts.

“A Rite Aid store near our headquarters in Yonkers, N.Y., was able to get the price of atorvastatin, the generic version of Lipitor, down to just $18 from $300 through a combination of in-store and external discount programs,” the report states. “But at another Rite Aid, we were told the cost could only be lowered to $127.”

Consumer Reports recommends that your employees:

  • Use online discounts. There are a number of websites that can provide you with discount coupons or vouchers for drugs, including:
    • GoodRx
    • Blink Health

On these sites you enter the name of the drug, dosage and quantity and where you live and it will provide coupons or vouchers and identify which pharmacies you can use them at.

  • Expand your shopping horizons. As you can see on the list above, prices vary tremendously. And combining shopping around with a good plan for using coupons and your employees can save themselves and your health plan boat loads of money.
    They should also check out their local warehouse discount store as both Costco’s and Sam’s Club’s pharmacies were also quite reasonable.
    Not to be outdone, neighborhood pharmacies and grocery store pharmacies were also much cheaper than the large regional drug store chains. “The absolute lowest prices we found in each city we called were almost always at these kinds of stores,” Consumer Reports wrote.
  • Ask pharmacies if they will honor online coupons. Pharmacies will almost always honor them, Consumer Reports found. But Consumer Reports mystery shoppers had to be persistent in getting the pharmacies to use them, since they often run prescriptions through insurance automatically, even when paying the retail cash price and using discount coupons would cost less.

One last thing

Consumer Reports recommended that once someone settles on pharmacy that consistently gives them good deals on pharmaceuticals, they should fill all of their prescriptions there.

That way it’s easier for them to spot “potentially dangerous interactions and other safety concerns.”

But if your employees notice that their pharmacy bills start rising noticeably, it may be time for them to start shopping around again. To stay on top of this requires regular checks to make sure that they are not seeing prices creep up.

Apple Also Plans to Get into Health Care Game to Create Efficiencies

First Amazon, J.P. Morgan and Berkshire Hathaway announced that they would form a consortium to tackle runaway health care and health insurance costs for their employees, and now another big hitter has announced it too plans to enter the fray – Apple.

While not giving away too many details, chief executive officer Tim Cook said during Apple’s shareholders’ meeting that the company would do more than just wellness apps and devices and try to tackle real health care costs in a variety of ways. Read More