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