Section 1 Short title
This Act may be cited as the “Patient Safety and Whistleblower Protections Act”.
Patient Safety and Whistleblower Protections Act
A BILL
To establish protections for health care providers who raise concerns about the quality of health care services, and for other purposes.
Sec. 2 Definitions
In this Act:
The term communicate, with respect to health care safety information, includes written or oral communications.
The term government official means any local, State, Tribal, or Federal governmental official, including municipal mayors and their staff, State governors and their staff, State legislators and their staff, Federal legislators and their staff, and staff or leaders of Federal agencies or other Federal authorities.
The term health care facility means a facility in which health care services are provided, including any hospitals, ambulatory surgery centers, skilled nursing facilities, home health agencies, clinics, urgent care centers, physician offices, dental offices, end-stage renal facilities, chiropractic offices, optometry offices, ophthalmology offices, nursing homes, behavioral health centers, community mental health centers, addiction treatment facilities, rehabilitation centers, hospices, outpatient therapy facilities, and federally-qualified health centers.
The term health care practitioner means an individual who is licensed by a State, or otherwise authorized, to provide health care services.
The term health care service means care, treatment, services, or other procedures to maintain, diagnose, or otherwise affect an individual’s physical or mental condition. Such term includes medical, paramedical, nursing, chiropractic, dental, behavioral, psychiatric, psychological, and vision services.
The term patient safety concern means a communication regarding a concern that materially affects the health of one of more patients or that has the potential to materially affect the health of one or more patients, including a concern about—
the quality of health care, patient safety, or staffing practices, such as the type of health care practitioner caring for patients or the number of patients for whom a health care practitioner is responsible; or
the sufficiency of equipment or supplies for the health care services provided, or the appropriateness of health care services or referrals for patients.
The term retaliation means any adverse employment action against a health care practitioner or any other materially adverse action that would dissuade a reasonable health care practitioner from raising patient safety concerns, including adverse actions against a health care practitioner who is no longer employed by, contracting with, or otherwise providing health care services at the health facility to which the patient safety concerns relate.
Sec. 3 Prohibition on retaliation
In general— A health care facility may not retaliate against a health care practitioner for communicating about patient safety concerns, including any written or oral patient safety concerns communicated to—
any supervisors, colleagues, or another individuals with authority over health care services or the clinical or financial operations of the health care facility;
a State authority with oversight of health care services, health care practitioners, or health care facilities;
a government official, including communications at a hearing, in response to written or oral questions from government officials, or in a meeting, phone call, email, or other communication;
a patient safety organization, as defined in section 921 of the Public Health Service Act (42 U.S.C. 299b–21);
any individual, organization, or other body investigating patient safety concerns in response to a communication made by another health care practitioner; or
only after 90 days following a communication to a person described in paragraphs (1), (2), or (4) that did not result in significant corrective action, to the news media or press.
Rebuttable presumption— There shall be a rebuttable presumption that any adverse employment action or other materially adverse action against the health care practitioner within 180 days of the health care practitioner communicating about patient safety concerns is retaliation.
Attribution to health care facility— Any retaliation by a health care practitioner, manager, supervisor, executive, staffing company, provider organization that contracts to provide services at the health care facility, or management services company shall be attributed to the health care facility that is the subject of patient safety concerns. A health care facility may seek indemnification or contribution from a staffing company, provider organization that contracts to provide services at the health care facility, or management services company for retaliation attributed to the health care facility under this subsection.
Clarification— Nothing in this section prohibits any adverse employment action or other materially adverse action against a health care practitioner that is not in retaliation for communicating about patient safety concerns.
Inapplicability of certain contractual provisions— Notwithstanding any other provision of law, any contractual provision that would prohibit a provider from communicating about patient safety concerns, or otherwise speaking truthfully about the quality of health care services, shall be null and void.
Inapplicability of non-Competition provisions— A health care practitioner who communicates about patient safety concerns shall be released from any existing non-competition agreement with the employer or contractor of the health care practitioner if the non-competition agreement relates to the health care practitioner’s employment or contract work at the health facility that is the subject of patient safety concerns.
Bad faith communications— Nothing in this section shall be construed as prohibiting a civil lawsuit against a health care practitioner who communicated about patient safety concerns in bad faith, if an independent investigation has determined that the patient safety concerns were not valid.
Sec. 4 Enforcement
Individual actions—
In general— A health care facility that retaliates against a health care practitioner for communicating patient safety concerns is liable to that practitioner in an amount equal to the sums determined in paragraph (2).
Damages— In an individual action under paragraph (1), the sum awarded for liability is equal to—
actual damage sustained by the health care practitioner;
attorney’s fees and costs; and
punitive damages of up to $1,000,000.
Class actions—
In general— Class actions are authorized for health care practitioners who communicate patient safety concerns at the same health care facility or at different health care facilities under the same management or ownership. The subject of patient safety concerns or the form of retaliation need not be identical to establish a common scheme of retaliating against health care practitioners who communicate patient safety concerns.
Damages— In a class action under paragraph (1), the sum awarded for liability is equal to—
the greater of $10,000 or actual damages for each named individual;
a total amount for all other class members, without regard to a minimum individual recovery amount, of the greatest of—
actual damages;
$500,000;
1 percent of the net worth of the defendant health care facility; or
if the defendant health care facility is fully owned, directly or indirectly, by another entity or entities, and, among all such entities that own such facility, the entity with the highest net worth owns at least 1 other health care facility at which retaliation for raising patient safety concerns is alleged in another action under this section or in a complaint described in subsection (d)(1), 1 percent of the net worth of such entity with the highest net worth that owns the health care facility; and
attorney's fees and costs.
Statute of limitations— Any action alleging retaliation for communicating patient safety concerns under this section may be commenced not later than 3 years after the last action that is alleged to be retaliatory occurs.
Requirements prior To bring an action— An action alleging retaliation for communicating patient safety concerns may be filed—
after the health care practitioner—
files a complaint with the State authority that licenses or otherwise oversees the health care facility that is the subject of the complaint; and
in the case that the health facility that is the subject of patient safety concerns is a hospital, files a complaint with the Joint Commission on Hospital Accreditation; and
not earlier than the date on which—
the State authority described in paragraph (1)(A) completes its investigation pursuant to such paragraph, and, as applicable, the Joint Commission on Hospital Accreditation described in paragraph (1)(B) completes its investigation pursuant to such paragraph; or
180 days after the filing of a complaint under paragraph (1)(A) and, if applicable, a complaint under paragraph (1)(B).
Sec. 5 Professional liability actions
In any civil or criminal action against a health care facility or health care practitioner relating to professional liability, communications about patient safety concerns made by the health care practitioner that is the subject of the civil or criminal action may not be used to draw an adverse inference about the quality of health care services provided by the health care practitioner. The preceding sentence shall only apply if communications about patient safety concerns were made by the health care practitioner prior to the filing of the civil or criminal action against the health care facility or health care practitioner.
Sec. 6 Requiring the reporting and resolution of patient safety concerns for providers of services participating in Medicare
by moving subparagraphs (W) and (X) 2 ems to the left;
in subparagraph (X), by striking “and” at the end;
in subparagraph (Y), by striking the period at the end and inserting “, and”; and
by inserting after subparagraph (Y) the following new subparagraph:
“(Z) to establish—
“(i) a mechanism that allows a health care provider or practitioner to anonymously report patient safety concerns; and
“(ii) a process for investigating and addressing any patient safety concern reported to the provider of services.”
Effective date— The amendments made by subsection (a) shall take effect 1 year after the date of enactment of this Act.
Sec. 7 Impact on other laws with respect to reporting patient safety concerns
Nothing in this Act, including the amendments made by this Act, shall be construed to limit or supersede the protections for health care providers with respect to reporting patient safety events pursuant to part C of title IX of the Public Health Service Act (42 U.S.C. 299b–21 et seq.) or any other Federal or State law on patient safety reporting.