California Legislature—2015–16 Regular Session

Assembly Bill No. 474

Introduced by Assembly Member Brown

February 23, 2015

An act to amend Section 1432 of the Health and Safety Code, relating to health facilities.

LEGISLATIVE COUNSEL’S DIGEST

AB 474, as introduced, Brown. Health facilities: antiretaliation protections.

Existing law prohibits a licensee of a long-term health care facility from discriminating or retaliating in any manner against a complainant, or a patient or employee in its facility, based on the presentation of a grievance or complaint or activities related to a specified investigation or proceeding at the facility. Existing law makes the willful violation of these provisions punishable as a crime.

This bill would expand the antiretaliation protections to apply to all health care workers of a long-term health care facility. The bill would increase the civil penalties and criminal penalties that apply to licensees who violate the provisions. The bill would also specify that a complainant who has been discriminated against may recover attorney’s fees and other legal costs.

Because this bill would expand the scope of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1432 of the Health and Safety Code is
amended to read:

1432.  

(a)   begin delete No end delete begin insert (1) end insert begin insert   end insert begin insert A end insert licensee shall begin insert not end insert discriminate or retaliate
in any manner against begin delete any end delete begin insert a end insert complainant, begin delete or any patient or
employee in its end delete begin insert patient, employee, member of the medical staff, or
any other health care worker of the end insert long-term health care facility,
on the basis or for the reason that the begin delete complainant, patient,
employee, or any other end delete person has begin delete presented a grievance or
complaint, or has initiated or cooperated in any investigation or
proceeding of any governmental entity relating to care, services,
or conditions at that facility. A licensee who violates this section
is subject to a civil penalty of no more than ten thousand dollars
($10,000), to be assessed by the director and collected in the
manner provided in Section 1430. end delete begin insert done either of the following: end insert

begin insert

(A) Presented a grievance, complaint, or report to the facility,
to an entity or agency responsible for accrediting or evaluating
the facility or the medical staff of the facility, or to any other
governmental entity.

end insert begin insert

(B) Initiated, participated, or cooperated in an investigation or
administrative proceeding related to the quality of care, services,
or conditions at the facility that is carried out by an entity or
agency responsible for accrediting or evaluating the facility or its
medical staff, or any other governmental entity.

end insert begin insert

(2) An entity that owns or operates a long-term health care
facility shall not discriminate or retaliate against a person because
that person has taken an action described in this subdivision.

end insert begin insert

(3) A violation of this section is subject to a civil penalty of not
more than twenty-five thousand dollars ($25,000). The civil penalty
shall be assessed and recovered through the same administrative
process set forth in Chapter 2.4 (commencing with Section 1417).

end insert

(b)   begin delete Any end delete begin insert An end insert attempt to expel a patient from a long-term health
care facility, or any type of discriminatory treatment of a patient
by whom, or upon whose behalf, a grievance or complaint has
been submitted, directly or indirectly, to begin delete any end delete begin insert a end insert governmental entity
or received by a long-term health care facility administrator or any
proceeding instituted under or related to this chapter within 180
days of the filing of the complaint or the institution of the action,
shall raise a rebuttable presumption that the action was taken by
the licensee in retaliation for the filing of the complaint.

(c)   begin delete Any end delete begin insert (1) end insert begin insert   end insert begin insert An end insert attempt to terminate the employment, or other
discriminatory treatment, of begin delete any end delete begin insert an end insert employee begin insert , complainant,
patient, member of the medical staff, or any other health care
worker end insert who has presented a grievance or complaint or has initiated,
participated, or cooperated in begin delete any end delete begin insert an end insert investigation or proceeding
of begin delete any end delete begin insert a end insert governmental entity as specified in subdivision (a), begin delete and end delete
where the facility or licensee had knowledge of the begin delete employee’s end delete
begin insert employee, complainant, patient, member of the medical staff, or
any other health care worker’s end insert initiation, participation, or
cooperation, shall raise a rebuttable presumption that the action
was taken by the licensee in retaliation if it occurs within 120 days
of the filing of the grievance or complaint, or the institution of the
action.

begin insert

(2) For purposes of this section, discriminatory treatment of an
employee, member of the medical staff, or any other health care
worker includes, but is not limited to, discharge, demotion,
suspension, or an unfavorable change in, or breach of, the terms
or conditions of a contract, employment, or privileges of the
employee, member of the medical staff, or any other health care
worker of the health care facility, or the threat of any of these
actions.

end insert

(d)  Presumptions provided for in subdivisions (b) and (c) begin delete shall
be end delete begin insert are end insert presumptions affecting the burden of producing evidence
as provided in Section 603 of the Evidence Code.

(e)   begin delete Where end delete begin insert If end insert the civil penalty assessed is one thousand dollars
($1,000) or less, the violation shall be issued and enforced in the
same manner as a class “B” violation, except in no case shall the
penalty be trebled. begin delete Where end delete begin insert If end insert the civil penalty assessed is in excess
of one thousand dollars ($1,000), the violation shall be issued and
enforced in the same manner as a class “A” violation, except in
no case shall the penalty be trebled.

(f)   begin delete Any end delete begin insert A end insert person who willfully violates this section is guilty
of an infraction punishable by a fine of not more than begin delete ten end delete begin insert twenty end insert
thousand dollars begin delete ($10,000) end delete begin insert ($20,000) end insert .

(g)  A licensee who violates this section is subject to a civil
penalty or a criminal fine, but not both.

(h)   begin delete Each end delete begin insert A end insert long-term health care facility shall prominently post
in a facility location accessible to staff, patients, and visitors written
notice of the right to request an inspection pursuant to Section
1419, the procedure for doing so, including the right to remain
anonymous, and the prohibition against retaliation.

begin insert

(i) (1) An employee who has been discriminated against in
employment pursuant to this section is entitled to reinstatement,
reimbursement for lost wages and work benefits caused by the acts
of the employer, and the legal costs associated with pursuing the
case, or to any remedy deemed warranted by the court pursuant
to this chapter or any other applicable provision of statutory or
common law.

end insert begin insert

(2) A health care worker who has been discriminated against
pursuant to this section is entitled to reinstatement, reimbursement
for lost income, and the legal costs associated with pursuing the
case, or to any remedy deemed warranted by the court pursuant
to this chapter or any other applicable provision of statutory or
common law.

end insert begin insert

(3) A member of the medical staff who has been discriminated
against pursuant to this section is entitled to reinstatement,
reimbursement for lost income resulting from a change in the terms
or conditions of his or her privileges caused by the acts of the
facility or the entity that owns or operates the facility or any other
health facility that is owned or operated by that entity, and the
legal costs associated with pursuing the case, or to any remedy
deemed warranted by the court pursuant to this chapter or any
other applicable provision of statutory or common law.

end insert begin insert

(4) For purposes of this subdivision, “legal costs” means
attorney’s fees, litigation costs, and expert witness fees incurred
in the litigation.

end insert begin insert

(j) For purposes of this section, “long-term health care facility”
means a facility defined under Section 1418, including, but not
limited to, the facility’s administrative personnel, employees,
boards, and committees of the board, and medical staff.

end insert begin delete

(i)

end delete

begin insert (k) end insert  For purposes of this section, “complainant” means begin delete any end delete begin insert a end insert
person who has filed a complaint, as defined in Section 1420.

begin insert

(l) This section does not abrogate or limit any other theory of
liability or remedy otherwise available at law.

end insert

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.