BILL NUMBER: AB 474 INTRODUCED
BILL TEXT
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) No (1) A
licensee shall not discriminate or retaliate in any
manner against any a complainant,
or any patient or employee in its patient,
employee, member of the medical staff, or any other health care
worker of the long-term health care facility, on the basis or
for the reason that the complainant, patient, employee, or
any other person has 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. done either of the
following:
(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.
(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.
(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.
(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).
(b) Any An 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 any a 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) Any (1) An
attempt to terminate the employment, or other discriminatory
treatment, of any an employee ,
complainant, patient, member of the medical staff, or any other
health care worker who has presented a grievance or complaint
or has initiated, participated, or cooperated in any
an investigation or proceeding of any
a governmental entity as specified in
subdivision (a), and where the facility or
licensee had knowledge of the employee's
employee, complainant, patient, member of the medica l
staff, or any other health care worker's 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.
(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.
(d) Presumptions provided for in subdivisions (b) and (c)
shall be are presumptions affecting the
burden of producing evidence as provided in Section 603 of the
Evidence Code.
(e) Where If 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.
Where If 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) Any A person who willfully
violates this section is guilty of an infraction punishable by a fine
of not more than ten twenty thousand
dollars ($10,000) ($20,000) .
(g) A licensee who violates this section is subject to a civil
penalty or a criminal fine, but not both.
(h) Each A 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.
(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.
(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.
(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.
(4) For purposes of this subdivision, "legal costs" means attorney'
s fees, litigation costs, and expert witness fees incurred in the
litigation.
(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.
(i)
(k) For purposes of this section, "complainant" means
any a person who has filed a complaint,
as defined in Section 1420.
(l) This section does not abrogate or limit any other theory of
liability or remedy otherwise available at law.
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.