The Affordable Care Act Provides Important Whistleblower Protections

Like many federal statutes, the Affordable Care Act includes anti-discrimination and anti-retaliation protections for employees, which are particularly helpful for health care workers. Specifically, the ACA protects employees who complain about, object to, or participate in an investigation into violations of any ACA provisions. The statute also explicitly protects employees who refuse to participate in any conduct they reasonably believe may be a violation of the Act.

Gallas v. Med. Ctr. of Aurora: a Recent ACA Whistleblower Case

Since the passage of the Affordable Care Act in 2010, there have not been many cases decided that involved whistleblower claims. One of the most recent decisions, Gallas v. Med. Ctr. of Aurora, involved the whistleblower protections for health care employees. In that case, a nurse employed at the Medical Center of Aurora in Colorado alleged that she was terminated after she complained about violations of numerous provisions of the ACA.

Specifically, the nurse complained about the hospital’s so-called “TeleMental Health” program, which she believed violated two other important statutes: the Emergency Medical Treatment and Labor Act (EMTALA) and the Health Insurance Portability and Accountability Act (HIPAA), among other laws and ethics rules. The nurse further feared that her participation in the program would likely jeopardize her license as a registered nurse.

The “TeleMental Health” program required hospital employees to conduct emergency psychiatric assessments remotely using video conferencing, as opposed to in-person. The nurse refused to perform such evaluations, which she believed were illegal and complained to her supervisor, other hospital officials, as well as outside federal and state agencies. As a result, she alleged, she received a negative performance review, was suspended, and ultimately terminated.

Was the nurse’s retaliation claim reasonable?

The Administration Law Judge reviewed the nurse’s retaliation claim but dismissed it during the early stage. However, the Department of Labor’s Administration Review Board (ARB) reversed that decision and directed that the claim be allowed to proceed. According to the Board, her claim “clearly satisfies the low threshold for stating a claim that she engaged in ACA-protected activity.” Specifically, the Board stressed that she met the Act’s “reasonable belief” requirement. In other words, the health care employee was only required to show that she had a reasonable belief that the violation to which she was objecting was an actual legal violation.

What the decision means for health care employees

The decision in Gallas v. Med. Ctr. of Aurora, more clearly defined the scope of the ACA’s whistleblower protections. This relatively lenient decision offers some comfort to health care employees that, if they are subjected to retaliation at the hands of their

employers, those retaliation claims will not be dismissed early on, even when they fail to state that they were objecting to either general or specific ACA violations.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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