Tuesday, June 13, 2017

ACA Retaliation Is Very Broad

A recent federal Administrative Review Board decision concerning a whistleblower under the provisions of the Affordable Care Act demonstrates how broadly this administrative panel is construing the protections under the statute. Any entity involved in the healthcare business should be aware of this standard when it terminates an employee who has complained about almost any aspect of healthcare, the provision of services, or the administration of an insurance program.
The facts are straightforward.  A Medical Center terminated a psychiatric nurse after she complained about the Center's implementation of a program in which it conducted emergency psychiatric assessments remotely rather than in person. The nurse complained that the program violated medical standards and ultimately refused to perform the evaluations. She specifically alleged violations of the Emergency Medical Treatment and Labor Act, HIPAA, and various state laws and ethical rules, as well as state  professional standards of conduct. She complained internally to anyone who would listen, as well as to outside federal and state agencies, to no avail.
After she refused to perform a remote mental health evaluation on a patient located at another hospital, the Center terminated her. The nurse filed a complaint under Sarbanes-Oxley, as well as a retaliatory discharge under the provisions of the Affordable Care Act. The Center move to dismiss both claims, and an administrative law judge dismissed the ACA claim, determining that the nurse failed to allege any activity that is protected by the statute.
The Board reversed the ALJ, determining that even where there is no specific allegation of a violation of the statute ostensibly affected by ACA, a whistleblower's claim can proceed as long as it shows some "relatedness" to the area policed by ACA. Or, to put it in the inimitable words of the Board, "to state a whistleblower claim under the ACA, Gallas need only allege activity or disclosures 'related' to ACA's subject matter."  Given that the ACA's subject matter includes the provision of health services, health insurance, Medicare and Medicaid processes, and virtually every other aspect of healthcare and its insurance coverage, it would seem virtually impossible for a hospital employee to complain about something that was NOT related to the ACA's subject matter.
For healthcare industry employers, this is a very easy standard to meet. Expect more of these cases as long as the ACA stays on the books.

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