Prohibits disclosing the identity of the worker, subject to exception. Provides for enforcement through private civil actions and, for certain willful and repeated violations, criminal penalties. Declares that this Act does not preempt other laws and allows States to enforce laws providing equivalent or greater worker protections.
[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2340 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 2340
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
June 27, 2001
Mr. Foley (for himself and Mr. Sandlin) introduced the following bill;
which was referred to the Committee on Energy and 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.
Be it enacted by the Senate and House of Representatives 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 2001''.
SEC. 2. PROHIBITION AGAINST DISCRIMINATION OR RETALIATION.
(a) In General.--No person shall retaliate or discriminate 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 relating 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 participated in any
investigation or proceeding of any governmental entity relating
to the care, services, or conditions of a health care entity.
(b) Attempts.--No person shall retaliate or discriminate 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 retaliation 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 communications 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 professional
or clinical standard; or
(B) relates to care, services, or conditions which
potentially endangers one or more patients or workers
or the public.
SEC. 3. CONFIDENTIALITY OF COMPLAINTS TO GOVERNMENT 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, reimbursement of any wages, salary, employment
benefits, or other compensation denied or lost to such employee
by reason of the violation, as well as punitive 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, preliminary, and
permanent injunctive relief restraining violations of this law,
including the restraint of any withholding of the payment of
wages, salary, employment 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 employment and may
award such other equitable relief as may be appropriate,
including employment, reinstatement, and promotion.
(4) An action may be brought under this subsection 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 provision 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 appropriateness 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 subsection, 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 patients 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 burden 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
alleged in the complaint. A prima facie case shall be established if
the complainant can show that--
(1) the respondent knew of the complainant's protected
activities at the time that the alleged unfavorable 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 establishes a prima facie
case, the burden shifts to the respondent 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 organization). Such term also includes those State,
Federal, 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 subcontractor 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
employee, laundry staff, kitchen staff, maintenance worker, and
a current or former worker or contractor.
(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 employer.
(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 entity (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
connection with the provision of such health care services, the
coverage or provision of benefits under a health insurance
policy or by a health maintenance organization, the processing
of claims under a health insurance 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 entity, 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 notice, to be prepared or approved by the
Secretary, setting forth excerpts from, or summaries of, the pertinent
provisions 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 penalty 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
disclosure of unsafe practices or conditions in the health care
industry.
SEC. 9. EFFECTIVE DATE.
This Act shall apply to acts of retaliation or discrimination
occurring on or after the first day of the first month that begins
after the date of the enactment of this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and 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.
Referred to the Committee on Energy and 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.
Referred to the Committee on Energy and 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.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on Crime.
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