Senate File 2037 - Introduced SENATE FILE BY BOLKCOM, KREIMAN, DANIELSON, DOTZLER, DVORSKY, HORN, HANCOCK, DEARDEN, QUIRMBACH, APPEL, COURTNEY, GRONSTAL, KIBBIE, and HATCH Passed Senate, Date Passed House, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to disclosures of information by health care 2 workers and providing penalties. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 5767XS 82 5 ec/nh/5 PAG LIN 1 1 Section 1. NEW SECTION. 147.105 PATIENT PROTECTION == 1 2 HEALTH CARE WORKERS == REPORT OF ADVERSE EVENTS. 1 3 1. DEFINITIONS. As used in this section, unless the 1 4 context otherwise requires: 1 5 a. "Direct care worker" means a trained and supervised 1 6 individual who provides services, care, and emotional support 1 7 to patients and health care recipients. 1 8 b. "Established guidelines for certified individuals and 1 9 direct care workers" includes written protocols and procedures 1 10 as defined by the department for direct care workers, 1 11 emergency medical care providers as defined in chapter 147A, 1 12 and substance abuse counselors as certified by the Iowa board 1 13 of certification. 1 14 c. "Health care worker" means any individual employed by 1 15 or under contract with a hospital, health care provider, or 1 16 health care agency to provide health care services. 1 17 d. "Professional standards of care" means authoritative 1 18 statements that describe a level of care or performance common 1 19 to the profession by which the quality of professional 1 20 practice can be judged and which reflect the values and 1 21 priorities of the profession. 1 22 2. A health care worker, who reasonably believes a 1 23 particular practice the health care worker has observed 1 24 occurring at the health care worker's place of employment, 1 25 based on the health care worker's professional standards of 1 26 care, professional code of ethics, or established guidelines 1 27 for certified individuals and direct care workers, is a 1 28 material violation of health and safety laws or a breach of 1 29 public safety that may lead to harm to patients, consumers, or 1 30 citizens, may report the information relating to the violation 1 31 or breach within fourteen days of its occurrence to the health 1 32 care worker's supervisor, employer, or member of management or 1 33 administration, in order that investigation can be undertaken 1 34 and corrective action be initiated. The health care worker 1 35 shall be protected against reprisals or retaliatory or 2 1 punitive action by the individual or institution receiving 2 2 such a report. 2 3 3. If after fourteen days following report of a material 2 4 violation or breach pursuant to subsection 2, the health care 2 5 worker continues to see the particular practice occurring in 2 6 the workplace giving rise to the report, the health care 2 7 worker may disclose information to the appropriate licensing 2 8 board, the department, the department of inspections and 2 9 appeals, the department of human services, the Iowa healthcare 2 10 collaborative, the division of insurance in the department of 2 11 commerce, a member or employee of the general assembly, the 2 12 attorney general, a state=mandated health information 2 13 collection agency, any other public official or law 2 14 enforcement agency, federal government agency or program, the 2 15 governing board of the health care worker's employer or 2 16 institution, or the health care worker's professional 2 17 association, and shall be protected against reprisals or 2 18 retaliatory or punitive actions by the individual or employing 2 19 health care entity if disclosure of the information is not 2 20 otherwise prohibited by statute and if the information meets 2 21 any of the following requirements: 2 22 a. Constitutes state=mandated health data required to be 2 23 submitted to state agencies. 2 24 b. Informs state agencies or entities of violations of 2 25 state health, safety, occupational health, licensure, or 2 26 insurance laws. 2 27 c. Is reasonably believed by the health care worker to be 2 28 a material violation of health and safety laws or a breach of 2 29 public safety that may lead to a significant probability of 2 30 harm to patients or health care recipients, based upon the 2 31 health care worker's professional standards of care, 2 32 professional code of ethics, or established guidelines for 2 33 certified individuals and direct care workers. 2 34 A health care worker making a disclosure which violates any 2 35 provision of the federal Health Insurance Portability and 3 1 Accountability Act, Pub. L. No. 104=191, shall not be entitled 3 2 to protection pursuant to this section nor entitled to civil 3 3 remedies which might otherwise be available pursuant to 3 4 subsection 6 or 7. 3 5 4. A health care worker disclosing in good faith the 3 6 information described in subsection 2 or 3 shall be presumed 3 7 to have established a prima facie case showing a violation of 3 8 subsection 2 or 3 by the health care worker's employer if the 3 9 individual or institution employing the health care worker 3 10 knows or has reason to know of the disclosure, and if 3 11 subsequent to and as a result of the disclosure, one or more 3 12 of the following actions were initiated by the employer: 3 13 a. Discharge of the health care worker from employment. 3 14 b. Failure by the employer to take action regarding a 3 15 health care worker's appointment to, promotion or proposed 3 16 promotion to, or receipt of any advantage or benefit in the 3 17 health care worker's position of employment. 3 18 c. Any adverse change to the health care worker's terms or 3 19 conditions of employment or any administrative, civil, or 3 20 criminal action or other effort that diminished the 3 21 professional competence, reputation, stature, or marketability 3 22 of the health care worker. 3 23 An employer shall have the burden of proof regarding any 3 24 attempt to show that actions taken pursuant to this subsection 3 25 were for a legitimate business purpose or were required by law 3 26 or administrative rule, which if proven is a complete defense. 3 27 5. If an individual or institution employing a health care 3 28 worker is determined to have violated state health, safety, or 3 29 occupational health and health licensure laws or regulations, 3 30 or professional standards of care, professional code of 3 31 ethics, or established guidelines for certified individuals 3 32 and direct care workers, after a disclosure pursuant to 3 33 subsection 2 or 3 results in an action as described in 3 34 subsection 4, such a determination shall create a presumption 3 35 of retaliation or reprisal against the health care worker in 4 1 violation of this section. Disclosure of a reasonable belief 4 2 that violations of health and safety laws or breaches of 4 3 public safety have occurred that have caused or have a 4 4 potential to cause harm to patients and health care recipients 4 5 shall immediately trigger the protection afforded by this 4 6 section. 4 7 6. A person who violates this section is subject to a 4 8 civil action as follows: 4 9 a. A person who violates this section is liable to an 4 10 aggrieved health care worker for affirmative relief. 4 11 b. A person or entity who prevails in a civil action based 4 12 on this section is entitled to equitable relief the court 4 13 deems appropriate, including attorney fees and costs and 4 14 punitive or exemplary damages. 4 15 c. When a person commits, is committing, or proposes to 4 16 commit an act in violation of this section, an injunction may 4 17 be granted through an action in district court to prohibit the 4 18 person from continuing such acts. The action for injunctive 4 19 relief may be brought by an aggrieved health care worker or by 4 20 the county attorney. 4 21 d. A civil action brought pursuant to this subsection 4 22 shall be filed within six months from the date of the alleged 4 23 violation. 4 24 7. a. In addition to any other penalties applicable to a 4 25 person who violates this section, an individual, institution, 4 26 or organization employing a person who violates this section 4 27 shall be subject to a civil penalty in the amount of one 4 28 thousand dollars per violation. 4 29 b. A health care worker found to bring a frivolous, 4 30 malicious, or nuisance cause of action against a health care 4 31 employer under this section shall be subject to a civil 4 32 penalty in the amount of one thousand dollars per violation 4 33 and up to four thousand dollars of reasonable attorney fees. 4 34 EXPLANATION 4 35 This bill creates new Code section 147.105 to provide 5 1 protection for health care workers against retaliation or 5 2 reprisals resulting from the disclosure of certain 5 3 information. 5 4 The new Code section provides that a health care worker who 5 5 discloses information to a state or federal board, department, 5 6 or agency, including the attorney general and law enforcement 5 7 personnel, as described in the bill, after 14 days have 5 8 transpired following a report to the employer and opportunity 5 9 to take corrective action has transpired on the part of the 5 10 individual or institution which employs the health care worker 5 11 and which is the subject of the disclosure, shall be protected 5 12 against reprisals or retaliatory or punitive actions by the 5 13 employer if disclosure of the information is not otherwise 5 14 prohibited by statute. The bill provides that for this 5 15 provision to apply, the information disclosed must constitute 5 16 state=mandated health data required to be submitted to a state 5 17 agency, or inform a state agency or entity of a violation of 5 18 state health, safety, occupational health, licensure, and 5 19 insurance laws, or is reasonably believed by the health care 5 20 worker to be a violation of health and safety laws or a breach 5 21 of public safety that may lead to harm to patients or health 5 22 care recipients, based upon the health care worker's 5 23 professional standards of care, professional code of ethics, 5 24 or established guidelines for health care workers. The bill 5 25 provides that this provision shall not be applicable to a 5 26 disclosure which constitutes a violation of the federal Health 5 27 Insurance Portability and Accountability Act. 5 28 The new Code section provides that a health care worker 5 29 disclosing in good faith this information shall be presumed to 5 30 have established a prima facie case if the employer knows or 5 31 has reason to know of the disclosure, and if following and as 5 32 a result of the disclosure the health care worker was 5 33 discharged from employment, or there was a failure by the 5 34 employer to take action regarding a health care worker's 5 35 appointment or promotion, or any adverse change to the health 6 1 care worker's terms or conditions of employment as well as any 6 2 administrative, civil, or criminal action or other effort that 6 3 diminishes the professional competence, reputation, stature, 6 4 or marketability of the health care worker. The bill provides 6 5 that the employer shall have the burden of proof regarding any 6 6 attempt to show that these actions were undertaken for a 6 7 legitimate business purpose. 6 8 The new Code section provides that if an employer is 6 9 determined to have violated state health, safety, or 6 10 occupational health or health licensure laws or regulations, 6 11 or professional standards of care or a professional code of 6 12 ethics, or certain guidelines, after a disclosure by a health 6 13 care worker resulting in an action taken against the worker as 6 14 described in the bill, this creates a presumption of 6 15 retaliation or reprisal. The bill provides that violations of 6 16 health and safety laws or breaches of public safety that have 6 17 caused or have a potential to cause harm to patients and 6 18 health care recipients immediately trigger protection. 6 19 The new Code section provides that violations may be 6 20 grounds for a civil action. The bill provides that in such an 6 21 action, an employer may be liable to an aggrieved health care 6 22 worker for affirmative relief, and other equitable relief the 6 23 court deems appropriate, including attorney fees and costs and 6 24 punitive or exemplary damages. The bill also provides for 6 25 injunctive relief. The bill provides that in addition to 6 26 other penalties, an individual, institution, or organization 6 27 employing a person found to be in violation of the bill's 6 28 provisions shall be subject to a civil penalty in the amount 6 29 of $1,000 per violation. In addition, the bill provides that 6 30 a health care worker found to have brought a frivolous claim 6 31 under this new Code section is subject to a civil penalty of 6 32 up to $1,000 per violation and up to $4,000 of reasonable 6 33 attorney fees. 6 34 LSB 5767XS 82 6 35 ec/nh/5