Whistleblower Protection
Background
Whistleblower laws are intended to prevent employers from taking retaliatory action against nurses such as suspension, demotion, harassment or discharge for reporting improper patient care or business practices. Across the nation, nurses are speaking out or "blowing the whistle" against workplace conditions that jeopardize patients and staff and they need legal protection. With the restructuring of health care and its cost cutting measures, nurses are frustrated as they try to provide quality patient care while staffing levels, resources and support are often inadequate.
As part of the American Nurses Association's (ANA) Nationwide State Legislative Agenda, ANA and State Nurses Associations are promoting strong whistleblower laws on the state level that provide legal protections for nurses advocating for patients, without fear of reprisal. A number of states are now including some protections in other legislation such as safe staffing and mandatory overtime prohibition.
Whistleblower protections for healthcare employees with varying degrees of protection and provisions exist (to date) in 20 states : AZ (2003), CA (2003 / 2007), CO (2007), FL (2002), GA (2007), HI (amended 2002), IL (2003), IN (2005), (ME (2003 / 2007), MD (2002), MI (2002), NV (2002, 2009), NJ (2006 / 2008), NY (2002), OH (2001), OR (2001/ 2009), TX (2007). UT (2003),VT (2004 / 2008), VA (2003), and WV (2001).
(2009)
OR (HB3162) extends the 2001 protections in that it's applicaiton is not specific to health care employees, by making discrimination against an employee who reports violation of state or federal laws, rules or regulations unlawful employment practice. In 2001, OR enacted legislation that prevents a hospital from taking retaliatory action against nursing staff for disclosure of an activity, policy or practice of the hospital that is in violation of a law or professional standard of practice and that poses a risk to patients. The law also protects the nurse from participating in any activity that the nursing staff believes poses a risk to the patient.
NV (AB10/BDR219) is an act prohibiting certain retaliation or discrimination against registered nurses, licensed practical nurses and nursing assistants who report certain information, refuse to engage in certain conduct or participate in certain investigations or proceedings relating to the safety of patients; providing civil remedies and civil penalties for violations; prohibiting the licensing boards of physicians from taking adverse action against a physician who discloses or cooperates in the investigation of a violation of any law, rule or regulation by an applicant or licensee.
(2008)
Although several states introduced legislation providing employees with whistleblower protections, only two states enacted such laws in 2008:
NJ and VT
NJ protections were included in the workplace violence legislation signed into law in January 2008. It prohibits a "covered" healthcare facility from retaliating against any healthcare worker for reporting an incident of violence (as defined in the law).
VT's law is limited to state employees; enabling them to report in good faith and with candor, any waste, fraud, abuse of authority, violations of law, or a threat to the health of employees, the public, or persons under the care of the state without fear of reprisal, intimidation, or retaliation.
(2007)
Passage in 2007 of whistleblower protections for nurses in TX solidified and clarified incremental approaches taken in previous years. The protections permit nurses to enforce their role as patient advocates as well as advocates for peers without fear of retaliation. This legislation includes provisions for nurses' refusal to engage in conduct the nurse believes to be in violation of the Board of Nursing standards or rules; reporting of staffing concerns to a hospital staffing advisory committee in a hospital; and reporting of a practitioner or a facility for exposing a patient to risk of harm due to a failure to conform to minimal professional standards or regulatory / accreditation standards.
CA extended protections to patients and medical staff as well as healthcare facility employees when presenting a grievance, complaint or report to an entity or agency responsible for accrediting or evaluating the facility or has initiated, participated or cooperated in an investigation or administrative proceeding, The law would provide that an employee who has been discriminated against shall be entitled to reinstatement, reimbursement for lost wages and benefits and if prevails in court, reimbursement of legal fees.
CO's law requires a healthcare worker making a good faith report or disclosure regarding patient safety or quality of patient care to follow internal reporting procedures of the healthcare provider prior to pursuing any further reporting or disclosure activity; prohibits a healthcare provider from taking disciplinary action against a worker in retaliation for making a report or disclosure; and allows healthcare providers to take other disciplinary actions against workers as appropriate.
GA's legislation affords protections for any employee (including nurses) who comes forward with information about unethical, immoral, or illegal business practices. The law also states that an employee of a state, local, or regional government entity or an employee of an entity which receives public money is protected from retaliation by their employer for reporting to their employer or a government authority a violation of law, rule, or regulation.
ME passed a resolution requesting the Department of Health and Human Services to enter into rulemaking to require hospitals to provide individual nurses in their employ notice of Whistleblowers' Protection Act, including the text of statutory provisions each calendar year.
Bills passed in both houses in
NM however, the Governor vetoed them.
NY legislation
, seeking to extend whistleblower protections to public employees also passed both houses.
Brief Summary Activity (2001-2006)
(2006)
NJ was successful in enacting "The Worker Freedom from Employer Intimidation Act". Although it does not afford true whistleblower protections, it does protect employees from intimidation by an employer in relation to types of meetings an employer may require of them such as those of a political and/or religious nature. There are some exceptions.
(2005)
A law enacted in
IN included a number of provisions, of which whistleblower protections were limited to making it unlawful for an employer to retaliate against an emloyee cooperating with the Ethics Commission or interfering with an Inspector General's investigation.
(2004)
VT passed legislation providing whistleblower protection for hospital and nursing home employees. The law states that no employer shall take retaliatory action against any employee because the employee discloses or threatens to disclose to any person or entity improper quality of patient care or objects to or refuses to participate in any practice of the employer or agent that the employee reasonably believes constitutes improper quality of patient care. The law also requires the internal processes of hospitals to be consistent with the American Nurses Credentialing Center's Magnet Recognition Program standards that support the improvement and delivery of quality patient care and professional nursing practice.
(2003)
AZ passed the Patient Safety Reporting Act that protects healthcare professionals who report any violations that put a patient at risk, from retaliation by a healthcare facility; it also sets up reporting procedures and policies.
IL enacted legislation protects hospital employees from discrimination or retaliation for disclosing information or refusing to participate in any activity that poses a risk to a patients health, safety or welfare. Legislation enacted in ME protects a healthcare worker who reports a deviation from standards of patient care.
In ME, the Governor signed into law the Whistleblower Protection Act, protecting healthcare workers who report medical errors to employers, patients, or public bodies, consistent with state and federal laws.
UT makes technical changes to state labor laws by adding retaliatory acts such as discharge, demotion or any other form of retaliation by an employer, prohibited.
VA specifically prohibits hospitals from retaliating against complainants who, in good faith, provide information to any entity having responsibility for protecting the rights of patients; complainant identity will also remain confidential.
(2002)
Legislation enacted in MD prevents retaliatory action against any individually licensed or certified employee who discloses to a supervisor or board an activity, policy or practice that is in violation of a law, rule, or regulation.
FL law offers protections to employees reporting suspected fraud to the Medicaid Fraud Unit.
NV law prevents a medical facility from retaliating or discriminating unfairly against an employee who in good faith reports a sentinel event to the health division.
NY enacted legislation that prevents an employer from taking retaliatory action against an employee who discloses to a supervisor or a public body an activity that constitutes improper quality of care or refuses to participate in that activity. The law also establishes a fund that consists of money received from civil penalties related to this law to be used for improving quality of patient care.
HI amended its Whistleblower Protection Act with increased penalties for violations and an extension of the statute of limitations for reporting.
(2001)
OH added several new provisions to the Nurse Practice Act and Ohio Revised Code, providing immunity for nurses who report in good faith a person or business entity's violation of law; also offer protections for nurses when participating in an investigation or court proceeding.
OR as noted previously.
WV law prevents retaliation or discrimination against any healthcare worker who reports wrongdoing or waste or advocates on behalf of a patient in regards to care.
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2009 Introductions
IA (HB307) This bill creates a new code section 147.97 to provide protection for health care workers against retaliation or reprisals resulting from the disclosure of certain patient safety information.
KY (HB51)
died on adjournment
An ACT relating to registered nurses, create new sections of KRS 314.041 to 314.050 to establish the patient advocacy duties and rights of direct care registered nurses including free speech, acting exclusively in the interests of patients, and avoidance of conflicts of interest; create new sections of KRS Chapter 216B to establish the protection of free speech for direct care registered nurses and other health professionals who are responsible for patient care; establish the content of protected free speech; establish the right of direct care registered nurses to oppose a policy found to conflict with patient advocacy; establish the right of patients and direct care registered nurses to file a complaint when a health care
MO (HB721) Establishes the Health Care Whistleblower Protection Act to protect health care professionals from retaliatory actions by employers for reporting violations regarding improper patient care.
NM (HB557) An act relating to employment; encouraging reporting of suspected improper quality of patient care; prohibiting employer retaliatory action in certain circumstances; providing grievance procedures and penalties.
OR (HB3162) Relates to employment discrimination resulting from whistleblowing, not unique to health care settings. Makes discrimination against employee who reports violation of state or federal laws, rules or regulations unlawful employment practice.
Last updated 07/15/09
Disclaimer: Every effort has been made to include all legislation enacted, but omissions are possible.