BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 97|
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UNFINISHED BUSINESS
Bill No: SB 97
Author: Burton (D), et al
Amended: 6/8/99
Vote: 21
SENATE HEALTH & HUMAN SERV. COMMITTEE : 6-2, 3/10/99
AYES: Escutia, Figueroa, Hughes, Polanco, Solis,
Vasconcellos
NOES: Morrow, Mountjoy
NOT VOTING: Haynes
SENATE APPROPRIATIONS COMMITTEE : 8-0, 4/19/99
AYES: Johnston, Alpert, Bowen, Burton, Karnette, Mountjoy,
Perata, Vasconcellos
NOT VOTING: Escutia, Johnson, Kelley, Leslie, McPherson
SENATE FLOOR : 24-14, 5/10/99
AYES: Alarcon, Alpert, Baca, Bowen, Burton, Chesbro,
Costa, Dunn, Escutia, Figueroa, Hayden, Hughes, Johnston,
Karnette, Murray, O'Connell, Ortiz, Peace, Perata,
Polanco, Schiff, Sher, Speier, Vasconcellos
NOES: Brulte, Haynes, Johannessen, Johnson, Kelley,
Knight, Leslie, Lewis, Monteith, Morrow, Mountjoy,
Poochigian, Rainey, Wright
NOT VOTING: McPherson, Solis
ASSEMBLY FLOOR : 46-26, 6/28/99 - See last page for vote
SUBJECT : Health facilities: retaliation against
employee or patient with grievance
SOURCE : California Nurses Association
CONTINUED
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DIGEST : This bill prohibits a health facility from
discriminating against a patient or employee who presents a
grievance or cooperates in any investigation against that
facility.
Assembly Amendments add inmates housed in local detention
facilities including a county jail or a juvenile hall,
juvenile camp, or other juvenile detention facility to
those exempted from the provisions of the bill.
ANALYSIS :
Existing law prohibits:
1.An employer from retaliating against an employee who
provides information to a government or law enforcement
agency about the employer's violation of law or
regulation. A violation is considered a misdemeanor and
is punishable by (a) imprisonment in the county jail not
to exceed one year, (b) a fine not to exceed $1,000, or
(c) both. A corporation may be fined up to $5,000.
2.A long-term health care facility from retaliating or
discriminating against an employee or patient, who has
filed a grievance, or provided information to a
governmental entity relating to care, services, or
conditions at that facility. A violation is subject to a
civil penalty of not more than $10,000.
This bill:
1.Makes findings and declarations to encourage patients,
nurses, and other health care workers to notify
government entities of suspected unsafe patient care and
conditions.
2.Prohibits any health facility from retaliating or
discriminating against an employee or patient, who has
filed a grievance or provided information to a
governmental entity relating to the care, services, or
conditions at that facility.
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3.Requires a health facility that violates this provision
to be subject to a civil penalty of not more than
$25,000.
4.Establishes a "rebuttable presumption" that any
discriminatory treatment taken by a health facility is
retaliatory if it occurs against (a) a patient within 180
days of his/her filing a grievance or complaint or (b) an
employee within 120 days of his/her filing a grievance or
complaint.
5.Defines "discriminatory treatment of an employee" to
include discharge, demotion, suspension, any other
unfavorable changes in employment, or the threat of these
actions.
6.Establishes a misdemeanor penalty of up to $20,000 for
any person who willfully violates the provisions in this
bill.
7.Requires that an employee who has been discriminated
against, pursuant to this bill, is entitled to
reinstatement, reimbursement for lost wages and benefits,
and legal costs associated with pursuing the case.
8.Exempts from the above provisions (a) an inmate of either
a Department of Youth Authority or Department of
Corrections' correctional facility or to an inmate housed
in a local detention facility and (b) a long-term health
care facility that is subject to existing law.
9.Provides that nothing in the bill abbrogates or limits
any other theory of liability or remedy otherwise
available in law.
Comments
The California Department of Health Services (DHS) reports:
1.An annual average of 11,000 complaints against all types
of health facilities, including long-term care facilities
and hospitals. An estimated 7,000 complaints per year
are against long-term care facilities.
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2.In fiscal year 1997-98, DHS issued 1,258 citations
against long-term care facilities. One of these
citations was against a long-term care facility for
retaliation and discrimination against an employee.
3.DHS staff indicates that they receive a number of
retaliation complaints against health care facilities,
other than long-term care facilities, but without
statutory authority they cannot follow-up on them.
Prior legislation
AB 3309 (Burton, 1996), which failed passage in the
Assembly Health Committee.
SB 253 (Burton, 1997), which was vetoed by Governor Wilson
because "[t]here is no empirical data to indicate that
health facilities workers require a higher level of
protection than other employees." It passed the Senate
21-15 - Noes: Brulte, Haynes, Hurtt, Johannessen, Johnson,
Kelley, Knight, Kopp, Leslie, Lewis, McPherson, Monteith,
Mountjoy, Rainey and Wright.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to Senate Appropriations Committee analysis:
Fiscal Impact (in thousands)
Major Provisions 1998-99 1999-2000 2000-01
Fund
Civil penalties unknown potential penalties
STAFF COMMENTS:
Both state hospitals and University of California (UC)
hospitals are licensed health facilities owned and operated
by the state. Operating departments or UC would be
responsible for paying any fines if health facility
supervisors violate these provisions and the civil action
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succeeds against the state.
SUPPORT : (Verified 6/28/99)
California Nurses Association (source)
California School Employees Association
Congress of California Seniors
Health Access
Service Employees International Union (SEIU)
AARP
California Association of Medical Laboratory Technology
Emergency Nurses Association of California
Little Hoover Commission
California Resources for Independent Living
Engineers and Scientists of California
Region 8 States Council of the United Food and Commercial
Workers
Hotel Employees, Restaurant Employees International Union
California Conference of Machinists
California Labor Federation, AFL-CIO
Older Women's League of California
Consumer Attorneys of California
California Conference Board, Amalgamated Transit Union
American Nurses Association/California
American Federation of State, County and Municipal
Employees, AFL-CIO
OPPOSITION : (Verified 6/28/99)
California Healthcare Association
Kaiser Permanente Medical Care Program
United Hospital Association
California Dialyses Council
California Association of Catholic Hospitals
ARGUMENTS IN SUPPORT : Supporters argue:
1.The purpose of this bill is to extend to hospital
patients and health care workers the same whistleblower
protections that currently apply to long-term care
facilities.
2.This bill would help protect nurses and patients who
complain about possible unsafe patient care in hospitals.
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3.Retaliatory actions against patients, nurses and other
health care workers are on the increase. Nurses working
in hospitals and other health care facilities who report
unsafe patient care or conditions put their own jobs at
risk and, therefore, are afraid to speak out.
4.Existing laws are so vague and general that they do not
protect patients and employees in hospitals.
ARGUMENTS IN OPPOSITION : Opponents argue:
1.Retaliation against a whistleblower is already a crime
that is subject to penalties. Employees who are subjects
of retaliation can go to the Department of Industrial
Relations, Division of Labor Standards Enforcement or to
the courts for relief.
2."Rebuttable presumption" is bad public policy. By
creating the legal presumption that a hospital is guilty
of retaliation unless it can prove itself innocent, this
bill tilts the process in favor of one of the parties in
a dispute. Furthermore, rebuttable presumption in this
bill will have an adverse impact on patient care, if
swift action cannot be taken against an incompetent
employee.
3.This bill encourages an incompetent employee to file a
frivolous complaint against a hospital due to the
protections provided in this bill.
4.This bill creates no corresponding penalties for
employees who willfully or negligently misuse the process
for their own purposes.
ASSEMBLY FLOOR :
AYES: Alquist, Aroner, Bock, Calderon, Cardenas, Cardoza,
Corbett, Correa, Davis, Dutra, Firebaugh, Florez, Floyd,
Gallegos, Havice, Hertzberg, Honda, Jackson, Keeley,
Knox, Kuehl, Lempert, Leonard, Longville, Lowenthal,
Machado, Mazzoni, Migden, Nakano, Papan, Reyes, Scott,
Shelley, Soto, Steinberg, Strom-Martin, Thomson,
Torlakson, Vincent, Washington, Wayne, Wesson, Wiggins,
Wildman, Wright, Villaraigosa
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NOES: Aanestad, Ackerman, Ashburn, Baldwin, Bates, Battin,
Baugh, Brewer, Briggs, Campbell, Cox, Dickerson,
Frusetta, House, Maddox, Maldonado, Margett, McClintock,
Olberg, Oller, Robert Pacheco, Pescetti, Runner,
Strickland, Thompson, Zettel
NOT VOTING: Cedillo, Cunneen, Ducheny, Granlund,
Kaloogian, Leach, Rod Pacheco, Romero
CP:sl 6/29/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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