Text: HF02374 Text: HF02376 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 147.105 REPRISALS PROHIBITED –
1 2 HEALTH CARE WORKERS – PENALTY – CIVIL REMEDIES.
1 3 1. DEFINITIONS. As used in this section, unless the
1 4 context otherwise requires:
1 5 a. "Health care worker" means any individual employed by
1 6 or under contract with a hospital, health care facility,
1 7 insurance company, health care provider, or health care agency
1 8 to provide health care services.
1 9 b. "Professional standards of care" means authoritative
1 10 statements that describe a level of care or performance common
1 11 to the profession by which the quality of professional
1 12 practice can be judged and which reflect the values and
1 13 priorities of the profession.
1 14 c. "Reasonable opportunity to make a report and take
1 15 corrective action" means the amount of time normally taken by
1 16 or granted to an institution to make a report and to effect
1 17 corrective action, when sanctioned or given notice by an
1 18 appropriate government agency.
1 19 2. A health care worker disclosing information to the
1 20 state board of nursing, the department, the division of
1 21 insurance in the department of commerce, a member or employee
1 22 of the general assembly, the attorney general, a state-
1 23 mandated health information collection agency, any other
1 24 public official or law enforcement agency, federal government
1 25 agency or program, or the media, after a reasonable
1 26 opportunity to make a report and take corrective action on the
1 27 part of the individual or institution which employs the health
1 28 care worker and which is the subject of the disclosure, shall
1 29 be protected against reprisals or retaliatory or punitive
1 30 actions by the individual or institution if disclosure of the
1 31 information is not otherwise prohibited by statute and if the
1 32 information meets any of the following requirements:
1 33 a. Constitutes state-mandated health data required to be
1 34 submitted to state agencies.
1 35 b. Informs state agencies or entities of violations of
2 1 state health, safety, occupational health, licensure, or
2 2 insurance laws.
2 3 c. Is reasonably believed by the health care worker to be
2 4 a violation of health and safety laws or a breach of public
2 5 safety that may lead to harm to patients, consumers, or
2 6 citizens, based upon the health care worker's professional
2 7 standards of care and professional code of ethics.
2 8 A health care worker making a disclosure which violates any
2 9 provision of the federal Health Insurance Portability and
2 10 Accountability Act, Pub. L. No. 104-191, shall not be entitled
2 11 to protection pursuant to this section nor entitled to civil
2 12 remedies which might otherwise be available pursuant to
2 13 subsection 5.
2 14 3. A health care worker disclosing in good faith the
2 15 information described in subsection 2 shall be presumed to
2 16 have established a prima facie case showing a violation of
2 17 subsection 2 by the health care worker's employer if the
2 18 individual or institution employing the health care worker
2 19 knows or has reason to know of the disclosure, and if
2 20 subsequent to and as a result of the disclosure, one or more
2 21 of the following actions were initiated by the employer:
2 22 a. Discharge of the health care worker from employment.
2 23 b. Failure by the employer to take action regarding a
2 24 health care worker's appointment or proposed appointment to,
2 25 promotion or proposed promotion to, or receipt of any
2 26 advantage in the health care worker's position of employment.
2 27 c. Any adverse change to the health care worker's terms or
2 28 conditions of employment or any administrative, civil, or
2 29 criminal action or other effort that diminishes the
2 30 professional competence, reputation, stature, or marketability
2 31 of the health care worker.
2 32 An employer shall have the burden of proof regarding any
2 33 attempt to show that actions taken pursuant to this subsection
2 34 were for a legitimate business purpose.
2 35 4. If an individual or institution employing a health care
3 1 worker is determined to have violated state health, safety, or
3 2 occupational health and health licensure laws or regulations,
3 3 or professional standards of care or a professional code of
3 4 ethics, after a disclosure pursuant to subsection 2 results in
3 5 an action as described in subsection 3, such a determination
3 6 shall create a presumption of retaliation or reprisal against
3 7 the health care worker in violation of this section.
3 8 Violations of health and safety laws or breaches of public
3 9 safety that have caused or have a potential to cause harm to
3 10 patients, consumers, and citizens shall immediately trigger
3 11 the protection afforded by this section.
3 12 5. A person who violates this section commits a simple
3 13 misdemeanor. Additionally, a civil action may be undertaken,
3 14 as follows:
3 15 a. A person who violates this section is liable to an
3 16 aggrieved health care worker for affirmative relief, including
3 17 reinstatement with or without back pay, or any other equitable
3 18 relief the court deems appropriate, including attorney fees
3 19 and costs, punitive or exemplary damages, and public notice of
3 20 the retaliation or reprisal undertaken against the health care
3 21 worker through publication in an official newspaper in the
3 22 city or county.
3 23 b. When a person commits, is committing, or proposes to
3 24 commit an act in violation of this section, an injunction may
3 25 be granted through an action in district court to prohibit the
3 26 person from continuing such acts. The action for injunctive
3 27 relief may be brought by an aggrieved health care worker or by
3 28 the county attorney.
3 29 6. In addition to any other penalties applicable to a
3 30 person who violates this section, an individual, institution,
3 31 or organization employing a person who violates this section
3 32 shall be subject to a civil penalty in the amount of one
3 33 thousand dollars per violation.
3 34 EXPLANATION
3 35 This bill provides protection for health care workers
4 1 against retaliation or reprisals resulting from the disclosure
4 2 of certain information.
4 3 The bill provides that a health care worker who discloses
4 4 information to a state or federal board, department, or
4 5 agency, including the attorney general and law enforcement
4 6 personnel, as described in the bill, after a reasonable
4 7 opportunity to make a report and take corrective action has
4 8 transpired on the part of the individual or institution which
4 9 employs the health care worker and which is the subject of the
4 10 disclosure, shall be protected against reprisals or
4 11 retaliatory or punitive actions by the employer if disclosure
4 12 of the information is not otherwise prohibited by statute.
4 13 The bill provides that for this provision to apply, the
4 14 information disclosed shall constitute state-mandated health
4 15 data required to be submitted to a state agency, or inform a
4 16 state agency or entity of a violation of state health, safety,
4 17 occupational health, licensure, and insurance laws, or is
4 18 reasonably believed by the health care worker to be a
4 19 violation of health and safety laws or a breach of public
4 20 safety that may lead to harm to patients, consumers, or
4 21 citizens, based upon the health care worker's professional
4 22 standards of care and professional code of ethics. The bill
4 23 provides that this provision shall not be applicable to a
4 24 disclosure which constitutes a violation of the federal Health
4 25 Insurance Portability and Accountability Act.
4 26 The bill provides that a health care worker disclosing in
4 27 good faith this information shall be presumed to have
4 28 established a prima facie case if the employer knows or has
4 29 reason to know of the disclosure, and if following and as a
4 30 result of the disclosure the health care worker was discharged
4 31 from employment, or there was a failure by the employer to
4 32 take action regarding a health care worker's appointment or
4 33 promotion, or any adverse change to the health care worker's
4 34 terms or conditions of employment as well as any
4 35 administrative, civil, or criminal action or other effort that
5 1 diminishes the professional competence, reputation, stature,
5 2 or marketability of the health care worker. The bill provides
5 3 that the employer shall have the burden of proof regarding any
5 4 attempt to show that these actions were undertaken for a
5 5 legitimate business purpose.
5 6 The bill provides that if an employer is determined to have
5 7 violated state health, safety, or occupational health or
5 8 health licensure laws or regulations, or professional
5 9 standards of care or a professional code of ethics, after a
5 10 disclosure by a health care worker resulting in an action
5 11 taken against the worker as described in the bill, this
5 12 creates a presumption of retaliation or reprisal. The bill
5 13 provides that violations of health and safety laws or breaches
5 14 of public safety that have caused or have a potential to cause
5 15 harm to patients, consumers, and citizens immediately trigger
5 16 protection.
5 17 The bill provides that violations constitute a simple
5 18 misdemeanor, and may also be grounds for a civil action. The
5 19 bill provides that in such an action, an employer may be
5 20 liable to an aggrieved health care worker for affirmative
5 21 relief, including reinstatement with or without back pay, and
5 22 other equitable relief the court deems appropriate, including
5 23 attorney fees and costs, punitive or exemplary damages, and
5 24 public notice of the retaliation or reprisal. The bill also
5 25 provides for injunctive relief. The bill provides that in
5 26 addition to other penalties, an individual, institution, or
5 27 organization employing a person found to be in violation of
5 28 the bill's provisions shall be subject to a civil penalty in
5 29 the amount of one thousand dollars per violation.
5 30 LSB 6005HH 80
5 31 rn/sh/8.1
Text: HF02374 Text: HF02376 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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