A recent ruling by the U.S. Department of Labor’s Administrative Review Board (ARB) upheld the anti-discrimination and anti-retaliation provisions contained in the Affordable Care Act (ACA). These “whistleblower provisions,” among other things, provide protections to employees who raise concerns or participate in an investigation of ACA violations, or who refuse to participate in what they reasonably believe to be a legal violation of the ACA.
The ARB decision, made in April 2017, dealt with the case of a nurse who worked at a hospital. The nurse alleged that the hospital fired her because she had complained about and refused to participate in a hospital program that she believed violated federal and state laws and could result in the loss of her nurse’s license.
A Department of Labor Administrative Law Judge had previously granted the hospital’s motion to dismiss the nurse’s claim that the hospital was retaliating against her because she was acting as a whistleblower. The ARB reversed the judge’s decision. The ARB directed the judge to allow the retaliation claim to proceed, reasoning that the claim had met the threshold of an ACA-protected activity.
The ARB decision demonstrates the Department of Labor’s willingness to uphold the protections the ACA provides to healthcare whistleblowers. It will be interesting to see if any final legislation to repeal and replace the ACA will remove these anti-discrimination and anti-retaliation provisions currently in the ACA.
