[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3342 Introduced in House (IH)]







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 Washington, 
 Mr. Stark, Mr. Torres, Mr. Towns, Mr. Weygand, Ms. Woolsey, 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 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 1998''.

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>