HB2681 INTR

H. B. 2681

(By Delegates Hatfield, Linch,

Rowe, Marshall, Mahan and Fleischauer)

[Introduced February 8, 1999; referred to the

Committee on Government Organization then the Judiciary.]

A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirty-six, relating to patient health care safety; prohibiting discrimination and retaliation against health care workers for certain job-related activities; providing for the confidentiality of the identity of a health care worker who makes certain complaints to a governmental agency; providing procedures for enforcement, including civil actions and criminal penalties; specifying the burden of proof in civil actions brought for enforcement; and requiring the posting of certain notices by health care entities.

Be it enacted by the Legislature of West Virginia:

That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirty-six, to read as follows:
ARTICLE 36. PATIENT SAFETY ACT.
§16-36-1. Short title.

This article may be cited as the "Patient Safety Act of 1999."
§16-36-2. Legislative findings and purpose.

(a) The Legislature finds that:

(1) Patients receiving medical care in this state need stable and consistent care from those providing health care services at every level;

(2) Nurses are responsible for the coordination of patient care service given by a variety of health care providers as the patient's best interest is seen as the foremost service to be provided. They are also responsible for monitoring the responses of patients to these services and evaluating if the desired outcomes are provided.

(3) Because nurses comprise the majority of a hospital's expenses, in an effort to remain competitive, hospitals are restructuring their operations by decreasing payroll and benefit outlays for nurses and either decreasing their number or replacing them with unlicensed personnel to care directly for patients;

(4) Several studies have noted a basic relationship between skilled nursing care and patient safety: Increased deaths result when inadequate nursing and lower levels of licensed registered professional nurses and licensed practical nurses in combination with higher levels of unlicensed personnel are utilized by health care facilities;

(5) The quality of available health care will suffer in this state if health care delivery is allowed to set priorities in which profit is made at the expense of patient care quality and safety;

(6) Core clinical staff, such as licensed professional registered nurses, are a key component in increasing quality, understanding patient care needs and balancing costs in any reformed health care system; and

(7) Health care is a basic and universal need; therefore, the right of any consumer to have access to pertinent information on the health care facility that is delivering health care and to participate effectively in the process of improving the delivery and quality of the care should not be impaired.

(b) Consequently, the Legislature intends by enacting this article to protect patients by providing protections for those health care workers with which the patient has most contact.
§16-36-3. Definitions.

For purposes of this article:

(1) 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 used in connection with the provision of the 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;

(2) The term "director" means the director of the division of health;

(3) 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, the 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) 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. The term also includes those state, federal or local agencies whose responsibilities include oversight of health care or health care entities;

(5) 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. The 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; and

(6) The term "person" includes an institution, federal, state or local governmental entity, or any other public or private entity.
§16-36-4. Prohibition against discrimination or retaliation.

(a) No person may:

(1) 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:

(A) Engaged in any disclosure of information relating to the care, services or conditions of a health care entity;

(B) Advocated on behalf of a patient or patients with respect to the care, services or conditions of a health care entity;

(C) 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; or

(D) Engaged in medical communication, as defined in this section;

(2) Restrict a health care worker, or any person acting on behalf of the worker, from providing, in good faith, medical communication, as defined in this section.

(b) No person may 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 subdivision (1), subsection (a) of this section.

(c) No person may 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 subdivision (1), subsection (a) of this section.

(d) 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) A health care worker with respect to the conduct described in paragraph (A), subdivision (1), subsection (a) of this section is 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.

(f) For purposes of this section, the term "medical communication":

(1) Means any communication, other than a knowing misrepresentation, made by the health care worker:

(A) Regarding the mental or physical health care needs or treatment of a patient and the provisions, terms or requirements of insurance coverage or a health plan relating to the needs or treatment; and

(B) Between:

(i) The worker and a current, former or prospective patient, or the guardian or legal representative of a patient;

(ii) The worker and any employee or representative of an insurance carrier or health plan; or

(iii) The worker and any employee or representative of any state or federal authority with responsibility for the licensing or oversight with respect to the insurance or health plan; and

(2) Includes communications concerning:

(A) Any tests, consultations and treatment options;

(B) Any risks or benefits associated with the test, consultations and options;

(C) Variation among any health care entities and any institutions providing the services in experience, quality or outcomes;

(D) The basis or standard for the decision of an insurance carrier or a health plan to authorize or deny health care services or benefits;

(E) The process used by the insurance carrier or health plan to determine whether to authorize or deny health care services or benefits; and

(F) Any financial incentives or disincentives provided by the insurance carrier or a health plan to a health care entity or worker that are based on service utilization.
§16-36-5. 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 may 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.
§16-36-6. Enforcement.

(a)(1) Any health care worker who believes that he or she has been retaliated or discriminated against in violation of section four of this article may file a civil action in any federal or state court of competent jurisdiction against the person believed to have violated section four of this article.

(2) If the court determines that a violation of section four of this article has occurred, the court shall award 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 the 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 and permanent injunctive relief restraining violations of this article, 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 other equitable relief as may be appropriate, including employment, reinstatement and promotion.

(4) An action may be brought under this subsection not later than two years after the date of the last event constituting the alleged violation for which the action is brought.

(b) Any person who willfully and repeatedly violates a provision of section four of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars, or confined in a county or regional jail for not more than one year, or both fined and confined, if the violation is related to:

(1) A pattern or practice of 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.
§16-36-7. Burden of proof.

(a) In any civil action brought under this article, the complainant has the initial burden of making a prima facie showing that any behavior described in subsections (a) through (c) of section four of this article was a contributing factor in the adverse action or inaction alleged in the complaint. A prima facie case is 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 subsection (a) or (b), section four of this article was a contributing factor in the discriminatory treatment.

(b) 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 the behavior.
§16-36-8. Notice.

(a) 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 director, setting forth excerpts from, or summaries of, the pertinent provisions of this article and information pertaining to the filing of a charge under section four of this article.

(b) The director may assess a civil penalty, not to exceed one hundred dollars for each separate offense , against any employer that willfully violates this section. The proceeds of any civil penalties collected under this section shall be credited to the general revenue of the state.

NOTE: The purpose of this bill is to provide mechanisms to ensure the safe delivery of health care to patients. It includes whistle blower protections and prohibits restrictions on communications between health care workers and patients.

This article is new; therefore, strike-throughs and underscoring have been omitted.