BILL NUMBER: SB 97 CHAPTERED 07/22/99 CHAPTER 155 FILED WITH SECRETARY OF STATE JULY 22, 1999 APPROVED BY GOVERNOR JULY 22, 1999 PASSED THE SENATE JULY 8, 1999 PASSED THE ASSEMBLY JUNE 28, 1999 AMENDED IN ASSEMBLY JUNE 8, 1999 AMENDED IN SENATE MARCH 22, 1999 INTRODUCED BY Senator Burton (Coauthor: Assembly Member Scott) DECEMBER 8, 1998 An act to add Section 1278.5 to the Health and Safety Code, relating to health facilities. LEGISLATIVE COUNSEL'S DIGEST SB 97, Burton. Health facilities. Existing law provides for the licensure of health facilities, as defined, by the State Department of Health Services. Under existing law, violation of those licensing provisions, or willful or repeated violation of the related rules or regulations, is a misdemeanor. Existing law prohibits certain health facilities, known as long-term health care facilities, from discriminating or retaliating against a patient or employee of those long-term health care facilities because the patient or employee presents a grievance or complaint, or initiates or cooperates in an investigation or proceeding by a governmental entity, relating to the care, services, or conditions at those long-term health care facilities, except as provided. Existing law makes violation of this prohibition subject to a civil penalty of not more than $10,000. Existing law provides that discriminatory treatment of an employee, as described, or discriminatory treatment of a patient, within specified time periods of that patient's or employee's presentation of a grievance or complaint, or initiation or participation in an investigation or proceeding, raises a rebuttable presumption that the discriminatory action was retaliatory. Existing law provides that willful violation of this provision is an infraction punishable by a fine of not more than $10,000. Existing law provides that a person who has been discriminated against under these provisions is entitled to specified remedies. This bill would impose similar prohibitions on health facilities other than long-term health care facilities, except that violation would be subject to a civil penalty of not more than $25,000 and willful violation would be a misdemeanor punishable by a fine of not more than $20,000. By creating a new crime, this bill would impose a state-mandated local program. The bill would prohibit its provisions from applying to an inmate of a state correctional facility or an inmate housed in a local detention facility. 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. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1278.5 is added to the Health and Safety Code, to read: 1278.5. (a) The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those government entities charged with ensuring that health care is safe. The Legislature finds and declares that whistleblower protections apply primarily to issues relating to the care, services, and conditions of a facility and are not intended to conflict with existing provisions in state and federal law relating to employee and employer relations. (b) (1) No health facility shall discriminate or retaliate in any manner against any patient or employee of the health facility because that patient or 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 the care, services, or conditions of that facility. (2) A health facility that violates this section shall be 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) for long-term health care facilities. (c) 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 governmental entity or received by a health facility administrator within 180 days of the filing of the grievance or complaint, shall raise a rebuttable presumption that the action was taken by the health facility in retaliation for the filing of the grievance or complaint. (d) Any discriminatory treatment of an employee who has presented a grievance or complaint, or has initiated, participated, or cooperated in any investigation or proceeding of any governmental entity as specified in subdivision (b), if the health facility had knowledge of the employee's initiation, participation, or cooperation, shall raise a rebuttable presumption that the discriminatory action was taken by the health facility in retaliation, if the discriminatory action occurs within 120 days of the filing of the grievance or complaint. For purposes of this section, "discriminatory treatment of an employee" shall include discharge, demotion, suspension, any other unfavorable changes in the terms or conditions of employment, or the threat of any of these actions. (e) The presumptions in subdivisions (c) and (d) shall be presumptions affecting the burden of producing evidence as provided in Section 603 of the Evidence Code. (f) Any person who willfully violates this section is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). (g) An employee who has been discriminated against in employment pursuant to this section shall be 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. (h) This section shall not apply to an inmate of a correctional facility of either the Department of the Youth Authority or the Department of Corrections or to an inmate housed in a local detention facility including a county jail or a juvenile hall, juvenile camp, or other juvenile detention facility. (i) This section shall not apply to a health facility that is a long-term health care facility, as defined in Section 1418. A health facility that is a long-term health care facility shall remain subject to Section 1432. (j) Nothing in this section abrogates or limits 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 XIIIB 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 XIIIB of the California Constitution.