Mar 01 2000

Health Care Whistleblower Legislation

Tags: whistleblower

The Wisconsin Assembly and Senate just passed companion bills protecting health care employees from disciplinary action for reporting to state agencies, accreditation bodies, or officials and supervisors within the health care facility or provider where they work. Given the speed and near unanimity with which these bills were adopted, it seems likely that they will be consolidated, approved and sent to the governor for signature in very short order, perhaps even in the same week as they were adopted (March 7, 2000).

The bills allow employees of health care facilities or of a health care provider to report their awareness of information that would lead a reasonable person to believe:

  1. That the health care facility or health care provider or any of their employees have violated any state law or rule or federal law or regulation; or
  2. That there exists any situation in which the quality of any healthcare service provided by the entity or by an employee of the entity violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standardsetting body and poses a potential risk to public health or safety.

The bills protect employees when they provide the above information to:

  1. State agencies;
  2. Professionally recognized accrediting or standard-setting bodies that have accredited, certified or otherwise approved the health care entity;
  3. Officers or directors of the health care entity;
  4. Employees of the health care entity who are in a supervisory capacity or in a position to take corrective action; or
  5. Legislators or legislative committees.

Employees are also protected from disciplinary action (including the threat of disciplinary action) for initiating, participating or testifying in any action or proceeding in which a violation of the type allowed to be reported is alleged.

Health care facilities and health care provider are broadly defined under the bills. These terms include those individuals and entities defined as health care providers under the statute defining patient health care records, as well as a broad definition of health care facility.

Only reports made in good faith are protected. The bills specify that an employee is not acting in good faith if the employee reports information that the employee knows or should know is false or misleading or initiates or participates in an action or proceeding based on information that the employee knows or should know is false or misleading.

Health care entities and their employees are prohibited from taking or threatening to take disciplinary action against employees who report or testify as to the specified violations because they reported or participated or because the entity believes they reported or participated. Health care entities also cannot take disciplinary action against an employee when another individual reports or participates on the employee’s behalf.

Employees who are disciplined in violation of these new provisions may file a complaint with the Department of Workforce Development and be subject to the same types of state agency proceedings that are now used to process complaints of employment discrimination on the basis of sex, race, age and the like. The DWD can impose the same remedies as are available for other types of employment discrimination.

Additionally, health care entities may be assessed a forfeiture of not more than $1,000 for a first violation, not more than $5,000 for a subsequent violation occurring within 12 months of the first and not more than $10,000 for subsequent violations committed within 12 months of the prior violations.

Finally, health care providers will be reported to post notices setting forth employees’ rights under this law, or be subject to a forfeiture of not more than $100. The health care entity will need to post this information within 90 days of the date the bills become law.

This new law, if ultimately enacted, may encourage employees who know their jobs are in jeopardy due to performance problems or their own misconduct to rush to report alleged violations of regulations or quality standards, making it more risky for the employing health care entity to regulate its workforce and enforce performance expectations. Unfortunately, health care entities not infrequently experience minor difficulties in maintaining strict compliance with all applicable rules and regulations, so many health care employees will be able to identify examples of rule violations that could serve as the basis for a good faith report.

Health care entities should be careful in issuing any disciplinary action to articulate and document their actual legitimate basis for the action, and to take disciplinary action promptly in relation to the offense that serves as the basis for the action. This will make it harder for the affected employee to successfully allege any connection between the discipline and any report the employee may have made as a defensive move.

von Briesen & Roper Legal Update is a periodic publication of von Briesen & Roper, s.c. It is intended for general information purposes for the community and highlights recent changes and developments in the legal area. This publication does not constitute legal advice, and the reader should consult legal counsel to determine how this information applies to any specific situation.