ARB Allows Affordable Care Act Whistleblower Claim to Proceed

June 14, 2017

When the Patient Protection and Affordable Care Act (ACA) became law in 2010, Congress created new anti-discrimination and anti-retaliation protections for all employees, that are particularly helpful to healthcare workers. This provision has received relatively little attention, including in the recent congressional debate on repealing the ACA, but it provides several such protections to employees. Specifically, the law protects employees who receive a credit or subsidy under the ACA or who raise concerns about, object to, or participate in an investigation of, violations of any provision of the ACA. The law also specifically protects employees who refuse to participate in what they reasonably believe to be a legal violation of this nature.

In April 2017, the U.S. Department of Labor’s Administrative Review Board (ARB) issued a decision that is one of only a handful since the passage of the ACA to address these new employment protections. That decision in Gallas v. Med. Ctr. of Aurora, ARB Case Nos. 16-012, 15-076, ALJ Case Nos. 2015-SOX-013, 2015-ACA-005 (ARB Apr. 28, 2017), shows the importance of these protections to healthcare whistleblowers and also provides a helpful example of the relatively low bar a whistleblower must clear for the Department of Labor to hear her case.

About the Gallas Case

In this case, Kitty Gallas, a nurse who worked at the Medical Center of Aurora in Aurora, Colorado, alleged that her former employer fired her for complaining about violations of several healthcare laws and rules. According to the ARB decision, Gallas was concerned that the hospital’s “TeleMental Health” program “violated the Emergency Medical Treatment and Labor Act (EMTALA), the Health Insurance Portability and Accountability Act (HIPAA), state laws and ethics rules, and could jeopardize her license as a registered nurse.” Under this program, hospital employees “conduct[ed] emergency psychiatric assessments” remotely via video conference instead of in-person.

Gallas asserted that she refused to perform evaluations under this program because she believed she would be acting illegally and “complained internally to her supervisor, other managers, and company officers, and to outside federal and state agencies.” Gallas claimed that the hospital gave her a negative performance review, suspended her, and ultimately terminated her employment because of her complaints and her refusal to participate in this TeleMental Health program.

Filing the ACA Retaliation Claim

After Gallas filed her retaliation charge, an Administrative Law Judge (ALJ) with the Department of Labor granted the hospital’s motion to dismiss, dismissing Gallas’s ACA whistleblower retaliation claim at an early stage of the process. The ARB reversed this ALJ decision and directed the ALJ to allow the ACA retaliation claim to proceed, stating that “Gallas’s complaint clearly satisfies the low threshold for stating a claim that she engaged in ACA-protected activity.” The ARB emphasized that Gallas met the law’s “reasonable belief” requirement, meaning that Gallas only needed to show she reasonably believed she was objecting to a legal violation rather than prove an actual legal violation occurred.

In addition, the ARB focused on how Gallas clearly met the “liberal pleading standard” for this early stage of a retaliation charge, requiring that Gallas “need only allege some facts about the protected activity, showing some relatedness” to the ACA. The ARB further noted that Gallas’s allegations, if true, constituted protected activity because of the ACA’s impact on HIPPA and EMTALA, the two laws Gallas named in her objections and in her Department of Labor complaint, as well other provisions of the ACA such as reforms involving “the use of best clinical practices and quality care reporting.”

Takeaways from the Gallas ARB Decision

The Gallas ARB decision demonstrates both the scope of the ACA’s protection and the leniency that Department of Labor adjudicators grant to whistleblowers in bringing charges. This decision should provide some comfort to healthcare employees that, if they are retaliated against, their claims will not be dismissed at the outset even when they do not state that they were objecting to specific ACA violations or even a general violation of the ACA.

On a final note, the current congressional Republican plan to do away with many of the benefits of the ACA, known as the American Health Care Act (AHCA), does not change these anti-discrimination and anti-retaliation provisions. However, most observers believe that the AHCA as passed by the U.S. House of Representatives will undergo substantial changes in the U.S. Senate, and any bill that stands a chance of actually being passed by both houses of Congress will look substantially different from the current AHCA. It remains to be seen whether Congress will seek to weaken or otherwise change these protections, and our firm will closely monitor any attempts to do so.

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