Actual Text of the Whistle Blower Legislation

Chapter 149 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting at the end thereof the following new section:

Section 186. (a) As used in this section, the following words shall have the following meanings:

(1) "Health Care Provider," any individual who is a licensed health care provider under the provisions of chapter 112,including but not limited to registered nurses, licensed practical nurses, physicians, physicians assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists, and social workers, or any other health care provider who performs or performed health care related services.

(2) "Health Care Facility," any individual, partnership, association, corporation or, trust or any person or group of persons that hires, including any hospital, clinic, convalescent or nursing home, charitable home for the aged, community health agency, or other provider of health care services licensed, or subject to licensing by, or operated by the department of public health; any "facility" as defined in section three of chapter one hundred and eleven B; any private, county or municipal facility, department or unit which is licensed or subject to licensing by the department of mental health pursuant to section nineteen of chapter nineteen, or by the department of mental retardation pursuant to section fifteen of chapter nineteen B; any "facility" as defined in section one of chapter one hundred and twenty-three; the Soldiers’ Home in Holyoke, the Soldiers’ Home in Chelsea; or any "facility" as set forth in section one of chapter nineteen or section one of chapter nineteen B.

(3) "Public Body" (a) the United States Congress, any state legislature including the general court, or popularly elected local government body, or member or health are provider thereof; (b) any Federal, State or local regulatory, administrative, or public agency or authority, or instrumentality thereof; (c) any Federal, State, or local law enforcement agency, prosecutorial office, or police or peace officer; or (d) any division, board, bureau, office, committee or commission of any of the public bodies described in this subsection.

(4) "Manager" any individual to whom a health are facility has given the authority to direct and control the work performance of the affected health care provider, who has authority to take corrective action regarding the violation of the law, rule, regulation, activity, policy, or violation of professional standards of practice of which the health care provider complains, or who has been designated by the health care facility on the notice required under subsection (h).

(5) "Retaliatory action,"

(a) the discharge, suspension, demotion, harassment, denial of a promotion or layoff or other adverse action taken against a health care provider in the terms and conditions of employment.

(b) A health care facility shall not refuse to hire, terminate a contractual agreement with or take any retaliatory action against a health care provider because the health are provider does any of the following:

(1) Discloses, or threatens to disclose to a manager or to a public body an activity, policy or practice of the employer or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, rule, regulation promulgated pursuant to law, or violation of professional standards of practice which the employee reasonably believes poses a risk to public health; or

(2) Provides information to or testifies before any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law or activity, policy, or a violation of professional standards or those practices of the employer or of another employer with whom the employee’s employer has a business relationship, which the health care provider reasonably believes poses a risk to public health; or

(3)Objects to or refuses to participate in any activity, policy, or practice of the employer or of another employer with whom the employee’s employer has a business relationship which the health care provider reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health; or

(4) Participates in any committee or peer review process, files a report or a complaint, or an incident report discussing allegations of unsafe, dangerous or potentially dangerous care.

(c)

(1) Except as provided in paragraph (b)(2), the protection against retaliatory action provided by subsection (b)(1) shall not apply to a health care provider who makes a disclosure to a public body unless the health care provider has brought the activity, policy or practice in violation of a law, or a rule or regulation promulgated pursuant to law or violations of professional standards of practice which the health care provider reasonably believes poses a risk to public health, to the attention of a manager of the health care provider by written notice and has afforded the health care facility a reasonable opportunity to correct the activity, policy or practice.

(2) A health care provider is not required to comply with paragraph (1)if he: (a)is reasonably certain that the activity, policy or practice is known to one or more managers of the health care facility and the situation is emergency in nature: (b)reasonably fears physical harm as a result of the disclosure provided: or(c) makes the disclosure to a public body for the purpose of providing evidence of what the health care provider reasonably believes to be a crime.

(d)Any health care provider or former health care provider aggrieved of a violation of this section may, within two years, institute a civil action in the superior court. Any party to said action shall be entitled to claim a jury trial. All remedies available in common law tort actions shall be available to prevailing plaintiffs. These remedies are in addition to any legal or equitable relief provided herein. The court may: (1)issue temporary restraining orders or preliminary or permanent injunctions to restrain continued violation of this section; (2)reinstate the health care provider to the same position held before the retaliatory action, or to an equivalent position; (3) reinstate full fringe benefits and seniority rights to the health care provider; (4) compensate the health care provider for lost wages, benefits and other remuneration, and interest thereon; and (5) order payment by the health care facility of reasonable litigation costs, reasonable expert witness fees and reasonable attorney’s fees. A health care provider may bring an action in the appropriate superior court or the superior court of the county of Suffolk for the relief provided in this subsection. The health care provider or former health care provider shall deliver a copy of the complaint to the Attorney General. The Attorney General shall establish and maintain a register of all complaints made by health care personnel under this chapter.

(e)

(i) Except as provided in paragraph (2), in any action brought by a health care provider under subsection (d),if the court finds said action was without basis in law or in fact, the court may award reasonable attorney’s fees and court costs to the health care facility.

(ii) A health care provider shall not be assessed attorney’s fees under paragraph (1) if, upon exercising reasonable and diligent efforts after filing a suit, the health care provider moves to dismiss the action against the health care facility, or files a notice agreeing to a voluntary dismissal, within a reasonable time after determining that the health care facility would not be found liable for damages.

(f) Whenever he believes it to be in the public interest, the Attorney General may bring an action in the name of the commonwealth against any health care facility violating subsection (b)or(h) of this section. Such an action may be brought in the superior court, and any party thereto may claim trial by jury. In any such action, in addition to the remedies the court may provide in accordance with subsection (d), the court may require the health care facility to pay to the commonwealth a civil penalty of not more than ten thousand dollars for each such violation, as well as the cost of reasonable attorney’s fees and reasonable expert witness fees.

(g) Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any health care provider under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract.

(h) A health care facility shall conspicuously display notices reasonably designed to inform its health care providers of their protection and obligations under this section, and use other appropriate means to keep its health care providers so informed. Each notice posted pursuant to this subsection shall include the name of the person or persons the health care facility has designated to receive written notifications pursuant to subsection (C). Any health care facility who violates this subsection shall be punished by a fine of not less than two hundred and fifty dollars nor more than two thousand five hundred dollars. This subsection shall be enforced by the attorney general.

(i) The Attorney General shall have the authority to promulgate rules and regulations necessary and appropriate to enforce this section.