I
105TH CONGRESS
2D SESSION
H. R. 3342
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
MARCH 5, 1998
Mr. FOLEY (for himself, Mr. KLINK, Mr. BARCIA, Mr. BROWN of California,
Ms. CHRISTIAN-GREEN, Mr. COYNE, Ms. DELAURO, Mr. EHRLICH, Mr.
FILNER, Ms. FURSE, Mr. GEJDENSON, Mr. GREEN, Ms. HARMAN, Mr.
HINCHEY, Ms. EDDIE BERNICE JOHNSON of Texas, Mr. KENNEDY of
Massachusetts, Mr. KENNEDY of Rhode Island, Mr. KLECZKA, Mr.
KUCINICH, Ms. JACKSON-LEE of Texas, Mr. MARTINEZ, Mr. MATSUI,
Mrs. MEEK of Florida, Mr. MICA, Mr. MILLER of California, Ms.
MILLENDER-MCDONALD, Ms. PELOSI, Mr. RAHALL, Ms. RIVERS, Mr.
SANDERS, Mr. SANDLIN, Mr. SERRANO, Mr. ADAM SMITH of Washing-
ton, Mr. STARK, Mr. TORRES, Mr. TOWNS, Mr. WEYGAND, Ms. WOOL-
SEY, Mr. WYNN, Mr. YATES, and Mr. MASCARA) 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 deter-
mined 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Patient Safety and
Health Care Whistleblower Protection Act of 1998’’.
SEC. 2. PROHIBITION AGAINST DISCRIMINATION OR RE-
TALIATION.
(a) IN GENERAL.—No person shall retaliate or dis-
criminate in any manner against any health care worker
because the worker (or any person acting on behalf of the
worker) in good faith—
(1) engaged in any disclosure of information re-
lating to the care, services, or conditions of a health
care entity;
(2) advocated on behalf of a patient or patients
with respect to the care, services, or conditions of a
health care entity; or
(3) initiated, cooperated, or otherwise partici-
pated in any investigation or proceeding of any gov-
ernmental entity relating to the care, services, or
conditions of a health care entity.
(b) ATTEMPTS.—No person shall retaliate or dis-
criminate in any manner against any health care worker
because the health care worker has attempted or has an
intention to engage in an action described in subsection
(a).
(c) RESTRICTIONS ON REPORTING PROHIBITED.—
No person shall by contract, policy, or procedure prohibit
or restrict any health care worker from engaging in any
action for which a protection against discrimination or re-
taliation is provided under subsection (a).
(d) CONFIDENTIAL
INFORMATION.—This section
does not protect disclosures that would violate Federal or
State law or diminish or impair the rights of any person
to the continued protection of confidentiality of commu-
nications provided by State or Federal law.
(e) GOOD FAITH ACTION.—A health care worker with
respect to the conduct described in subsection (a)(1) shall
be considered to be acting in good faith if the health care
worker reasonably believes that—
(1) the information is true; and
(2) the information disclosed by the health care
worker—
(A) evidences a violation of any law, rule,
or regulation, or of a generally recognized pro-
fessional or clinical standard; or
(B) relates to care, services, or conditions
which potentially endangers one or more pa-
tients or workers or the public.
SEC. 3. CONFIDENTIALITY OF COMPLAINTS TO GOVERN-
MENT AGENCIES.
The identity of a health care worker who complains
in good faith to a government agency or department about
the quality of care, services, or conditions of a health care
entity shall remain confidential and shall not be disclosed
by any person except upon the knowing written consent
of the health care worker and except in the case in which
there is imminent danger to health or public safety or an
imminent violation of criminal law.
SEC. 4. ENFORCEMENT.
(a) PRIVATE CAUSE OF ACTION.—
(1) Any health care worker who believes that he
or she has been retaliated or discriminated against
in violation of section 2 may file a civil action in any
Federal or State court of competent jurisdiction
against the person believed to have violated section
2.
(2) If the court determines that a violation of
section 2 has occurred, the court shall award such
damages which result from the unlawful act or acts,
including compensatory damages, reinstatement, re-
imbursement of any wages, salary, employment ben-
efits, or other compensation denied or lost to such
employee by reason of the violation, as well as puni-
tive damages, attorneys’ fees, and costs (including
expert witness fees). The court shall award interest
on the amount of damages awarded at the prevailing
rate.
(3) The court may issue temporary, prelimi-
nary, and permanent injunctive relief restraining
violations of this law, including the restraint of any
withholding of the payment of wages, salary, employ-
ment benefits, or other compensation, plus interest,
found by the court to be due and the restraint of
any other change in the terms and conditions of em-
ployment and may award such other equitable relief
as may be appropriate, including employment, rein-
statement, and promotion.
(4) An action may be brought under this sub-
section not later than 2 years after the date of the
last event constituting the alleged violation for which
the action is brought.
(b) CIVIL PENALTY.—Any person who violates a pro-
vision of section 2 shall be subject to a civil penalty of
not to exceed $10,000 for each violation. In determining
the amount of any penalty under this subsection, the ap-
propriateness of such penalty to the size of the business
of the person charged and the gravity of the violation shall
be considered. The amount of any penalty under this sub-
section, when finally determined, may be—
(1) deducted from any sums owing by the
United States to the person charged; or
(2) ordered by the court, in an action brought
for a violation of section 2 brought by the health
care worker (or workers) who suffered retaliation or
discrimination.
(c) CRIMINAL PENALTY.—Any person who willfully
and repeatedly violates a provision of section 2 and such
violation is related to—
(1) a pattern or practice of such violations,
(2) quality of care, services, or conditions which
would likely lead to serious injury or death for pa-
tients or health care workers, or
(3) retaliation against a health care worker
which could lead to serious injury or death,
shall be fined in accordance with title 18, United States
Code, imprisoned for not more than 1 year, or both.
SEC. 5. BURDEN OF PROOF.
(a) ON COMPLAINANT.—In any civil action brought
under this Act, the complainant shall have the initial bur-
den of making a prima facie showing that any behavior
described in subsections (a) through (c) of section 2 was
a contributing factor in the adverse action or inaction al-
leged in the complaint. A prima facie case shall be estab-
lished if the complainant can show that—
(1) the respondent knew of the complainant’s
protected activities at the time that the alleged unfa-
vorable action or inaction was taken; and
(2) the discriminatory action occurred within a
period of time such that a reasonable person could
conclude that an activity protected by section 2(a) or
2(b) was a contributing factor in the discriminatory
treatment.
(b) ON RESPONDENT.—Once the complainant estab-
lishes a prima facie case, the burden shifts to the respond-
ent to demonstrate, by clear and convincing evidence, that
it would have taken the same adverse action or inaction
in the absence of such behavior.
SEC. 6. DEFINITIONS.
For purposes of this Act:
(1) HEALTH CARE ENTITY.—The term ‘‘health
care entity’’ includes a health care facility (such as
a hospital, clinic, nursing facility, or other provider
of health care services) or a health care carrier (such
as an insurance plan or health maintenance organi-
zation). Such term also includes those State, Fed-
eral, or local agencies whose responsibilities include
oversight of health care or health care entities.
(2) HEALTH CARE WORKER.—The term ‘‘health
care worker’’ includes a worker directly employed by
a health care entity as well as an employee of a sub-
contractor or independent contractor that provides
supplies or services to a health care entity. Such
term also includes a nurse, nurse’s aide, laboratory
technician, physician, intern, resident, clerical em-
ployee, laundry staff, kitchen staff, maintenance
worker, and a current or former worker or contrac-
tor.
(3) DISCRIMINATION
OR
RETALIATION.—The
term ‘‘discrimination or retaliation’’ includes a
threat, intimidation, or any adverse change in a
health care worker’s wages, benefits, or terms or
conditions of employment. In the case of a health
care worker who is not an employee of the health
care entity, such term includes any adverse action
taken against the worker or the worker’s employer,
including the cancellation of or refusal to renew a
contract with the health care worker or the em-
ployer.
(4) CARE, SERVICES, OR
CONDITIONS.—The
term ‘‘care, services, or conditions’’ includes, with
respect to a health care entity, all aspects of the
care or treatment of patients by the health care en-
tity (whether on an inpatient or outpatient basis),
any health care related services provided directly or
indirectly to a patient of the entity, the provision or
use of any supplies or equipment utilized in connec-
tion with the provision of such health care services,
the coverage or provision of benefits under a health
insurance policy or by a health maintenance organi-
zation, the processing of claims under a health in-
surance policy, and any conditions that exist in any
facility of the entity which affect or may affect the
quality or safety of the health care services provided
to patients.
(5) PERSON.—The term ‘‘person’’ includes an
institution, Federal, State, or local governmental en-
tity, or any other public or private entity.
(6) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Labor.
SEC. 7. NOTICE.
(a) IN GENERAL.—Each health care entity shall post
and keep posted, in conspicuous places on the premises
of the health care entity where notices to employees and
applicants for employment are customarily posted, a no-
tice, to be prepared or approved by the Secretary, setting
forth excerpts from, or summaries of, the pertinent provi-
sions of this Act and information pertaining to the filing
of a charge under section 2.
(b) PENALTY.—Any employer that willfully violates
this section may be assessed by the Secretary a civil pen-
alty not to exceed $100 for each separate offense.
SEC. 8. NONPREEMPTION.
Nothing in this Act preempts any other law, and
nothing in this Act shall be construed or interpreted to
impair or diminish in any way the authority of any State
to enact and enforce any law which provides equivalent
or greater protections for health care workers or the dis-
closure of unsafe practices or conditions in the health care
industry.
SEC. 9. EFFECTIVE DATE.
This Act shall apply to acts of retaliation or discrimi-
nation occurring on or after the first day of the first
month that begins after the date of the enactment of this
Act.
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