I

106TH CONGRESS

1ST SESSION H. R. 137

To prohibit discrimination or retaliation against health care workers who

report unsafe conditions and practices which impact on patient care.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 6, 1999

Mr. FOLEY (for himself, Mr. KLINK, Mr. SERRANO, Mr. SANDLIN, Ms. KILPATRICK, Ms. DELAURO, Mr. GEORGE MILLER of California, Mr. STARK,

Mr. ABERCROMBIE, Mr. ACKERMAN, Mr. GEJDENSON, Mr. KILDEE, Mr.

BALDACCI, Mr. EHRLICH, Mr. MASCARA, Mr. DOYLE, Mr. FILNER, Ms.

ROYBAL-ALLARD, Mr. KLECZKA, Mr. MARTINEZ, and Ms. WOOLSEY) introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on the Judiciary, for a period

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee

concerned

A BILL

To prohibit discrimination or retaliation against health care

workers who report unsafe conditions and practices which

impact on patient care.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Patient Safety and

5 Health Care Whistleblower Protection Act of 1999’’.
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1 SEC. 2. PROHIBITION AGAINST DISCRIMINATION OR RE2 TALIATION.

3 (a) IN GENERAL.—No person shall retaliate or dis4 criminate in any manner against any health care worker

5 because the worker (or any person acting on behalf of the

6 worker) in good faith—

7 (1) engaged in any disclosure of information re8 lating to the care, services, or conditions of a health

9 care entity;

10 (2) advocated on behalf of a patient or patients

11 with respect to the care, services, or conditions of a

12 health care entity; or

13 (3) initiated, cooperated, or otherwise partici14 pated in any investigation or proceeding of any gov15 ernmental entity relating to the care, services, or

16 conditions of a health care entity.

17 (b) ATTEMPTS.—No person shall retaliate or dis18 criminate in any manner against any health care worker

19 because the health care worker has attempted or has an

20 intention to engage in an action described in subsection

21 (a).

22 (c) RESTRICTIONS ON REPORTING PROHIBITED.—

23 No person shall by contract, policy, or procedure prohibit

24 or restrict any health care worker from engaging in any

25 action for which a protection against discrimination or re26 taliation is provided under subsection (a).
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1 (d) CONFIDENTIAL INFORMATION.—This section

2 does not protect disclosures that would violate Federal or

3 State law or diminish or impair the rights of any person

4 to the continued protection of confidentiality of commu5 nications provided by State or Federal law.

6 (e) GOOD FAITH ACTION.—A health care worker with

7 respect to the conduct described in subsection (a)(1) shall

8 be considered to be acting in good faith if the health care

9 worker reasonably believes that—

10 (1) the information is true; and

11 (2) the information disclosed by the health care

12 worker—

13 (A) evidences a violation of any law, rule,

14 or regulation, or of a generally recognized pro15 fessional or clinical standard; or

16 (B) relates to care, services, or conditions

17 which potentially endangers one or more pa18 tients or workers or the public.

19 SEC. 3. CONFIDENTIALITY OF COMPLAINTS TO GOVERN20 MENT AGENCIES.

21 The identity of a health care worker who complains

22 in good faith to a government agency or department about

23 the quality of care, services, or conditions of a health care

24 entity shall remain confidential and shall not be disclosed

25 by any person except upon the knowing written consent
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1 of the health care worker and except in the case in which

2 there is imminent danger to health or public safety or an

3 imminent violation of criminal law.

4 SEC. 4. ENFORCEMENT.

5 (a) PRIVATE CAUSE OF ACTION.—

6 (1) Any health care worker who believes that he

7 or she has been retaliated or discriminated against

8 in violation of section 2 may file a civil action in any

9 Federal or State court of competent jurisdiction

10 against the person believed to have violated section

11 2.

12 (2) If the court determines that a violation of

13 section 2 has occurred, the court shall award such

14 damages which result from the unlawful act or acts,

15 including compensatory damages, reinstatement, re16 imbursement of any wages, salary, employment ben17 efits, or other compensation denied or lost to such

18 employee by reason of the violation, as well as puni19 tive damages, attorneys’ fees, and costs (including

20 expert witness fees). The court shall award interest

21 on the amount of damages awarded at the prevailing

22 rate.

23 (3) The court may issue temporary, prelimi24 nary, and permanent injunctive relief restraining

25 violations of this law, including the restraint of any
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1 withholding of the payment of wages, salary, employ2 ment benefits, or other compensation, plus interest,

3 found by the court to be due and the restraint of

4 any other change in the terms and conditions of em5 ployment and may award such other equitable relief

6 as may be appropriate, including employment, rein7 statement, and promotion.

8 (4) An action may be brought under this sub9 section not later than 2 years after the date of the

10 last event constituting the alleged violation for which

11 the action is brought.

12 (b) CIVIL PENALTY.—Any person who violates a pro13 vision of section 2 shall be subject to a civil penalty of

14 not to exceed $10,000 for each violation. In determining

15 the amount of any penalty under this subsection, the ap16 propriateness of such penalty to the size of the business

17 of the person charged and the gravity of the violation shall

18 be considered. The amount of any penalty under this sub19 section, when finally determined, may be—

20 (1) deducted from any sums owing by the

21 United States to the person charged; or

22 (2) ordered by the court, in an action brought

23 for a violation of section 2 brought by the health

24 care worker (or workers) who suffered retaliation or

25 discrimination.
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1 (c) CRIMINAL PENALTY.—Any person who willfully

2 and repeatedly violates a provision of section 2 and such

3 violation is related to—

4 (1) a pattern or practice of such violations,

5 (2) quality of care, services, or conditions which

6 would likely lead to serious injury or death for pa7 tients or health care workers, or

8 (3) retaliation against a health care worker

9 which could lead to serious injury or death,

10 shall be fined in accordance with title 18, United States

11 Code, imprisoned for not more than 1 year, or both.

12 SEC. 5. BURDEN OF PROOF.

13 (a) ON COMPLAINANT.—In any civil action brought

14 under this Act, the complainant shall have the initial bur15 den of making a prima facie showing that any behavior

16 described in subsections (a) through (c) of section 2 was

17 a contributing factor in the adverse action or inaction al18 leged in the complaint. A prima facie case shall be estab19 lished if the complainant can show that—

20 (1) the respondent knew of the complainant’s

21 protected activities at the time that the alleged unfa22 vorable action or inaction was taken; and

23 (2) the discriminatory action occurred within a

24 period of time such that a reasonable person could

25 conclude that an activity protected by section 2(a) or
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1 2(b) was a contributing factor in the discriminatory

2 treatment.

3 (b) ON RESPONDENT.—Once the complainant estab4 lishes a prima facie case, the burden shifts to the respond5 ent to demonstrate, by clear and convincing evidence, that

6 it would have taken the same adverse action or inaction

7 in the absence of such behavior.

8 SEC. 6. DEFINITIONS.

9 For purposes of this Act:

10 (1) HEALTH CARE ENTITY.—The term ‘‘health

11 care entity’’ includes a health care facility (such as

12 a hospital, clinic, nursing facility, or other provider

13 of health care services) or a health care carrier (such

14 as an insurance plan or health maintenance organi15 zation). Such term also includes those State, Fed16 eral, or local agencies whose responsibilities include

17 oversight of health care or health care entities.

18 (2) HEALTH CARE WORKER.—The term ‘‘health

19 care worker’’ includes a worker directly employed by

20 a health care entity as well as an employee of a sub21 contractor or independent contractor that provides

22 supplies or services to a health care entity. Such

23 term also includes a nurse, nurse’s aide, laboratory

24 technician, physician, intern, resident, clerical em25 ployee, laundry staff, kitchen staff, maintenance
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1 worker, and a current or former worker or contrac2 tor.

3 (3) DISCRIMINATION OR RETALIATION.—The

4 term ‘‘discrimination or retaliation’’ includes a

5 threat, intimidation, or any adverse change in a

6 health care worker’s wages, benefits, or terms or

7 conditions of employment. In the case of a health

8 care worker who is not an employee of the health

9 care entity, such term includes any adverse action

10 taken against the worker or the worker’s employer,

11 including the cancellation of or refusal to renew a

12 contract with the health care worker or the em13 ployer.

14 (4) CARE, SERVICES, OR CONDITIONS.—The

15 term ‘‘care, services, or conditions’’ includes, with

16 respect to a health care entity, all aspects of the

17 care or treatment of patients by the health care en18 tity (whether on an inpatient or outpatient basis),

19 any health care related services provided directly or

20 indirectly to a patient of the entity, the provision or

21 use of any supplies or equipment utilized in connec22 tion with the provision of such health care services,

23 the coverage or provision of benefits under a health

24 insurance policy or by a health maintenance organi25 zation, the processing of claims under a health in-
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1 surance policy, and any conditions that exist in any

2 facility of the entity which affect or may affect the

3 quality or safety of the health care services provided

4 to patients.

5 (5) PERSON.—The term ‘‘person’’ includes an

6 institution, Federal, State, or local governmental en7 tity, or any other public or private entity.

8 (6) SECRETARY.—The term ‘‘Secretary’’ means

9 the Secretary of Labor.

10 SEC. 7. NOTICE.

11 (a) IN GENERAL.—Each health care entity shall post

12 and keep posted, in conspicuous places on the premises

13 of the health care entity where notices to employees and

14 applicants for employment are customarily posted, a no15 tice, to be prepared or approved by the Secretary, setting

16 forth excerpts from, or summaries of, the pertinent provi17 sions of this Act and information pertaining to the filing

18 of a charge under section 2.

19 (b) PENALTY.—Any employer that willfully violates

20 this section may be assessed by the Secretary a civil pen21 alty not to exceed $100 for each separate offense.

22 SEC. 8. NONPREEMPTION.

23 Nothing in this Act preempts any other law, and

24 nothing in this Act shall be construed or interpreted to

25 impair or diminish in any way the authority of any State
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1 to enact and enforce any law which provides equivalent

2 or greater protections for health care workers or the dis3 closure of unsafe practices or conditions in the health care

4 industry.

5 SEC. 9. EFFECTIVE DATE.

6 This Act shall apply to acts of retaliation or discrimi7 nation occurring on or after the first day of the first

8 month that begins after the date of the enactment of this

9 Act.

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