SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES LeVOTA (Sponsor), FRAME, SKAGGS, GRILL, BAKER (25), PAGE, BLAND, KOMO, PORTWOOD, JOHNSON, BOWMAN, YAEGER, WALSH, ROORDA, WILDBERGER, McGHEE, MEADOWS, SCHIEFFER, GEORGE AND DARROUGH (Co-sponsors).
Read 1st time January 24, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal section 197.285, RSMo, and to enact in lieu thereof two new sections relating to the health care whistleblower protection act, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Section 197.285, RSMo, is repealed and two new sections enacted in lieu thereof, to be known as sections 197.285 and 197.525, to read as follows:
197.285. 1. No supervisor or individual with authority to hire, fire, or discipline in a hospital or ambulatory surgical center shall:
(1) Retaliate or otherwise take any adverse action against an employee based on his or her protected activity; or
(2) In any manner attempt to dissuade, prevent, or interfere with an employee who wishes to engage in protected activity.
2. As used in this section, the following terms mean:
(1) "Adverse action", any retaliatory action by a supervisor or individual with authority to hire, fire, or discipline that would dissuade a reasonable person from making or supporting protected activity under this section. Adverse actions include but are not limited to refusal to hire, termination, discrimination or disparate treatment, imposition of any discipline or penalty, or any action that adversely affects an employee's pay or benefits. Adverse actions also include threats to take any adverse actions against an employee who engages in protected activity;
(2) "Department", the department of health and senior services;
(3) "Protected activity":
(a) The reporting or disclosure of any information related to:
a. Alleged facility mismanagement, fraudulent activity, or billing errors, or unethical, immoral, or illegal business practices; or
b. Alleged violations of federal or state laws or regulations regarding patient care, patient safety, or facility safety; or
c. Alleged violations of professional standards of conduct or accepted standards of quality patient care; or
d. The ability of employees to perform their assigned duties consistent with professional standards of conduct or accepted standards of quality patient care;
(b) Includes, but is not limited to:
a. The filing of any complaint, grievance, or assignment despite objection form; the participation in any investigation or proceeding conducted by a hospital, ambulatory surgical center, or any government entity; or the taking of any other action intended to disclose or report any information described in subparagraphs a. to d. of paragraph (a) of this subdivision;
b. The refusal to participate in an activity that would result in a violation of any federal or state laws or regulations, professional standards of conduct, or accepted standards of quality patient care; and
(c) Whether an action is considered protected activity entitled to protection under this section shall not depend on whether any investigation by the hospital, ambulatory surgical center, or any governmental authority results in a finding that the hospital or ambulatory surgical center committed any violation of law, regulation, professional standard of conduct, or accepted standards of quality patient care. An employee's actions shall be deemed protected activity if the employee's commission of such activity was reasonable and in good faith.
3. Hospitals and ambulatory surgical centers shall additionally take the following actions:
(1) Establish and implement a written policy adopted by each hospital and ambulatory surgical center relating to the protections for employees who [disclose information pursuant to] engage in protected activity as defined in subsection 2 of this section. This policy shall include a time frame for completion of investigations related to complaints, not to exceed thirty days, and a method for notifying the complainant of the disposition of the investigation. This policy shall be submitted to the department of health and senior services to verify implementation[. At a minimum, such policy shall include the following provisions:
(1) No supervisor or individual with authority to hire or fire in a hospital or ambulatory surgical center shall prohibit employees from disclosing information pursuant to subsection 2 of this section;
(2) No supervisor or individual with authority to hire or fire in a hospital or ambulatory surgical center shall use or threaten to use his or her supervisory authority to knowingly discriminate against, dismiss, penalize or in any way retaliate against or harass an employee because the employee in good faith reported or disclosed any information pursuant to subsection 2 of this section, or in any way attempt to dissuade, prevent or interfere with an employee who wishes to report or disclose such information;
(3) Establish a program to identify a compliance officer who is a designated person responsible for administering the reporting and investigation process and an alternate person should the primary designee be implicated in the report.
2. This section shall apply to information disclosed or reported in good faith by an employee concerning:
(1) Alleged facility mismanagement or fraudulent activity;
(2) Alleged violations of applicable federal or state laws or administrative rules concerning patient care, patient safety or facility safety; or
(3) The ability of employees to successfully perform their assigned duties.
All information disclosed, collected and maintained pursuant to this subsection and pursuant to the written policy requirements of this section shall be accessible to the department of health and senior services at all times and shall be reviewed by the department of health and senior services at least annually. Complainants shall be notified of the department of health and senior services' access to such information and of the complainant's right to notify the department of health and senior services of any information concerning alleged violations of applicable federal or state laws or administrative rules concerning patient care, patient safety or facility safety.
3. Prior to any disclosure to individuals or agencies other than the department of health and senior services, employees wishing to make a disclosure pursuant to the provisions of this section shall first report to the individual or individuals designated by the hospital or ambulatory surgical center pursuant to subsection 1 of this section.
4. If the compliance officer, compliance committee or management official discovers credible evidence of misconduct from any source and, after a reasonable inquiry, has reason to believe that the misconduct may violate criminal, civil or administrative law, then the hospital or ambulatory surgical center shall report the existence of misconduct to the appropriate governmental authority within a reasonable period, but not more than seven days after determining that there is credible evidence of a violation.
5. Reports made to the department of health and senior services shall be subject to the provisions of section 197.477, provided that the restrictions of section 197.477 shall not be construed to limit the employee's ability to subpoena from the original source the information reported to the department pursuant to this section.
6. Each written policy shall allow employees making a report who wish to remain anonymous to do so, and shall include safeguards to protect the confidentiality of the employee making the report, the confidentiality of patients and the integrity of data, information and medical records.
7. Each hospital and ambulatory surgical center shall, within forty-eight hours of the receipt of a report, notify the employee that his or her report has been received and is being reviewed.] ;
(2) Appoint a compliance officer who shall be the designated person responsible for accepting complaints or assignment despite objection forms from employees and administering the policy's reporting and investigation process;
(3) Notify employees of their right to report or disclose any information identified in subparagraphs a. to d. of paragraph (a) of subdivision (3) of subsection 2 of this section to the department and the attorney general. An employer shall conspicuously display notices of its employees' protections and obligations under this section, and use other appropriate means to keep its employees so informed. Each notice posted under this section shall also include the name of the compliance officer;
(4) Provide employees with forms to document alleged violations of applicable federal or state laws or regulations concerning patient care, patient safety, or facility safety. Assignment despite objection forms shall be provided to licensed and certified health care professionals to document conditions that they reasonably believe constitute improper quality of care;
(5) Permit employees making a report who wish to remain anonymous to do so, and shall include safeguards to protect the confidentiality of the employee making the report, the confidentiality of patients, and the integrity of data, information, and medical records. If the employee elects to remain anonymous, such employee is permitted to designate another individual or entity to receive the results of the investigation of the complaint;
(6) Within two business days of the receipt of a complaint, including assignment despite objection form, the hospital or ambulatory surgical center shall forward the complaint to the department and the attorney general. The hospital or ambulatory surgical center shall initiate its own investigation of the complaint;
(7) In the absence of the receipt of a complaint, if a hospital's compliance officer or any management employee receives information relevant to any actions set forth in subparagraphs a. to d. of paragraph (a) of subdivision (3) of subsection 2 of this section, the hospital or ambulatory surgical center shall forward such information to the department and the attorney general, and shall commence its own investigation;
(8) When a hospital or ambulatory surgical center receives notification of a department investigation under subsection 4 of this section and an internal investigation has not been commenced under subdivisions (6) to (9) of this subsection, the hospital or ambulatory surgical center shall commence its own investigation into the allegations raised by the department;
(9) All information disclosed, collected, and maintained by a hospital or ambulatory surgical center under this subsection and in accordance with the written policy requirements of this section shall be accessible to the department at all times and shall be reviewed at least annually by the department.
4. All complaints, including assignment despite objection forms, whether submitted directly by an employee or by a hospital or ambulatory surgical center under subdivisions (6) to (9) of subsection 3 of this section, shall be automatically dual-filed with the department and the attorney general. The department shall commence an investigation within two business days of receipt of a complaint. Within two business days of receipt of a complaint, the department shall provide notice to the hospital or ambulatory surgical center of the department's investigation, and of the opportunity to present the hospital's or ambulatory surgical center's position along with any supporting documentary evidence, including the results of any investigation undertaken under subdivisions (6) to (9) of subsection 3 of this section; provided that, the hospital's or ambulatory surgical center's submission of evidence shall not be permitted to extend the investigation period beyond forty-five days following submission of the complaint. As part of the department's investigation of the complaint, the department shall have the authority to request that the attorney general issue civil investigative demands, notices, or subpoenas to the hospital or ambulatory surgical center, or any other entity that may have relevant evidence. The department's investigation shall be completed within thirty calendar days following receipt of the complaint, but may extend the investigation period by no more than fifteen days if necessitated by the complexity of the complaint.
5. Within one business day of the conclusion of a department investigation, the department shall comply with all of the following:
(1) Make the original complaint, factual record of the investigation, and investigative conclusions a matter of public record subject to disclosure, after redacting protected health information under the federal Health Insurance Portability and Accountability Act (HIPAA);
(2) Maintain a log of all complaint forms and assignment despite objection forms, providing a summary of all complaints, department and hospital or ambulatory surgical center responses, documenting the date the complaint is received and the date the investigation is concluded;
(3) Notify the complainant or the designee of the complainant in the case of an anonymous complaint, and the hospital or ambulatory surgical center of the outcome of the investigation;
(4) Forward to the attorney general the factual record of the investigation and the department's investigative conclusions; and
(5) If the investigation concludes that an employee was subject to adverse action in retaliation for protected activity in violation of subsection 1 of this section, the department shall order the hospital or ambulatory surgical center to make the employee whole, consistent with the remedies set forth in subsection 7 of this section, within five business days.
6. Upon receipt of materials from the department under subdivision (5) of subsection 5 of this section, the attorney general shall undertake an independent and de novo review of the complaint and factual record. As part of such investigation and review, the attorney general may issue civil investigative demands, notices, or subpoenas to a hospital or ambulatory surgical center, or any other entity that may have relevant evidence. The attorney general shall render an enforcement decision within sixty calendar days, but may extend such time period by no more than thirty days if necessitated by the complexity of the complaint. The attorney general's enforcement decision may include any of the remedies set forth in subsection 7 of this section.
7. Any hospital or ambulatory surgical center that violates subsection 1 of this section shall be subject to any or all of the following civil remedies sought by an aggrieved employee:
(1) An injunction to restrain continued violation of this section;
(2) The reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position;
(3) The reinstatement of full fringe benefits and seniority rights;
(4) Compensation for lost wages, benefits, and other remuneration;
(5) Payment by the employer of reasonable costs and attorney's fees;
(6) Punitive damages;
(7) An assessment of a civil fine not to exceed one thousand dollars for the first violation and not more than five thousand dollars for each subsequent violation of this section. Any moneys collected under this subdivision shall be distributed to the schools of this state in the same manner that proceeds of all penalties, forfeitures, and fines collected for any breach of the penal laws of this state are distributed.
8. Nothing in this section shall be construed to diminish an employee's rights under federal or state law, or under a collective bargaining agreement or employment contract.
197.525. 1. This section shall be known and may be cited as the "Health Care Whistleblower Protection Act".
2. No employer shall take any retaliatory action against an employee because the employee does any of the following:
(1) Discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of the employer of another employer with whom there is a business relationship that the employee reasonably believes is in violation of a law or a rule adopted thereunder, or in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law or rule adopted thereunder by the employer or another employer with whom there is a business relationship, or in the case of an employee who is a licensed or certified health care professional, provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into the quality of patient care; or
(3) Objects to or refuses to participate in any activity, policy, or practice which the employee reasonably believes:
(a) Is in violation of a law or rule adopted thereunder, or if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;
(b) Is fraudulent or criminal; or
(c) Is incompatible with a clear mandate of public policy concerning the public health, safety, or welfare or protection of the environment.
3. Upon violation of any of the provisions of this section, an aggrieved employee or former employee may, within one year, institute a civil action in a court of competent jurisdiction. Upon the application of any party, a jury shall be directed to try the validity of any claim under this section specified in the suit. All remedies available in common law tort actions shall be available to prevailing plaintiffs. Such remedies shall be in addition to any legal or equitable relief provided by this section or any other state law. The court may also order:
(1) An injunction to restrain continued violation of this section;
(2) The reinstatement of the employee to the same position held before the retaliatory action, or to an equivalent position;
(3) The reinstatement of full fringe benefits and seniority rights;
(4) The compensation for lost wages, benefits, and other remuneration;
(5) The payment by the employer of reasonable costs and attorney's fees;
(6) Punitive damages; or
(7) An assessment of a civil fine of not more than one thousand dollars for the first violation of this section and not more than five thousand dollars for each subsequent violation, which shall be distributed to the schools of this state in the same manner that proceeds of all penalties, forfeitures, and fines collected for any breach of the penal laws of the state are distributed.
4. A court may also order that reasonable attorney's fees and court costs be awarded to an employer if the court determines that an action brought by an employee under this section was without basis in law or in fact; except that, an employee shall not be assessed attorney's fees under this section if, after exercising reasonable and diligent efforts after filing a suit, the employee files a voluntary dismissal concerning the employer within a reasonable time after determining that the employer would not be found to be liable for damages.
5. An employer shall conspicuously display notices of its employees' protections and obligations under this section, and use other appropriate means to keep its employees so informed. Each notice posted under this section shall include the name of the person or persons the employer has designated to receive written notification.
6. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any federal or state law or regulation, or under any collective bargaining agreement or employment contract; except that, the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, state law or regulation thereunder, or under the common law.
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