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    Wisconsin Health Care Workers: Whistleblower Protection

    Health care workers who in good faith report standard of care violations are protected from employer retaliation. The importance of Wisconsin's Health Care Worker Protection statute can only grow as our population ages and our reliance on health care workers and facilities increases.

    Daryll Neuser

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    Wisconsin Lawyer
    Vol. 77, No. 3, March 2004

    Wisconsin Health Care Workers: Whistleblower Protection

    Health care workers who in good faith report standard of care violations are protected from employer retaliation. The importance of Wisconsin's Health Care Worker Protection statute can only grow as our population ages and our reliance on health care workers and facilities increases.

    Sidebar:

    whistle by Daryll J. Neuser

    he National Academy of Science's Institute of Medicine estimates that as many as 98,000 Americans die every year in hospitals from medical mistakes made by physicians, pharmacists, and other health care professionals.1 Intensive media attention, such as the recent coverage of a mismatched blood type resulting in a young girl's death during a heart-lung transplant at Duke University Hospital, has raised public awareness of the frequency of medical mistakes.

    There also is growing concern about the quality of health care provided outside of the hospital setting. For example, nursing home complaints have increased, according to a July 2003 report prepared by the U.S. Department of Health and Human Services. Using 1996-2000 data from the National Ombudsman Reporting System, the report found that the number of nursing home complaints grew by approximately 28 percent, from 145,000 complaints in 1996 to 186,000 complaints in 2000. Historically, complaints about resident rights, such as the right to be free from abuse, outnumbered resident care complaints; however, resident care complaints grew by 37 percent during 1996-2000, and in 1999 surpassed resident rights complaints. As of 2000, resident care complaints accounted for six of the top 10 complaint categories: 1) failure to respond to call lights or requests for assistance, 2) accidents and improper handling of residents, 3) lack of adequate care plans and resident assessments, 4) inadequate administration of medications, 5) unattended resident symptoms, and 6) poor personal hygiene.

    Historically, Wisconsin health care workers who reported quality of care concerns placed their employment in jeopardy by doing so. That changed in 1999 when, with relatively little fanfare outside the health care industry, the Wisconsin Legislature passed the Health Care Worker Protection statute.2 The statute provides broad whistleblower protection to most employees in the health care industry. Proponents of the legislation believed the legislation was needed to protect health care workers who feared retaliation for reporting quality of care concerns. Opponents argued that the legislation marked yet additional regulation in an already highly regulated industry, and thus was unnecessary. However, both proponents and opponents believed the legislation represented a dramatic change in the employment discrimination landscape.

    Given the ongoing public concern regarding the quality of health care, it is appropriate to revisit the statute and its effect in protecting whistleblowers. This article discusses the genesis of the Health Care Worker Protection statute, coverage, remedies, and its impact as measured by administrative enforcement.

    Background

    Before 1999 only select health care workers were protected from employment retaliation for reporting quality of care concerns. Even then only certain types of resident rights reports, such as elder abuse or neglect, triggered employment protection.3

    A Wisconsin Supreme Court case, Hausman v. St. Croix Care Center,4 exposed the gaps in the then-existing protective labor legislation. In that case two nursing home employees became concerned that the nursing home was not adequately addressing quality of care issues, such as falls from beds, the residents' diets, and staff members' disrespectful treatment of residents. Both employees were fired after they expressed their concerns to a state official.

    The employees filed an administrative complaint under the Wisconsin Elder Abuse Reporting System, which provided employment protection following a report of abuse, material abuse, or neglect to a county agency.5 The complaint was dismissed, however, because the employees reported their concerns to a state official rather than to a county official.

    The employees also filed a complaint alleging a violation of Wis. Stat. section 50.07(1)(e),6 which permitted nursing home employees to report potential care violations to a state official and provided sanctions against an employer for retaliating against the reporting employee. However, this complaint also was dismissed because the statute provided criminal penalties against the employer but did not create a private right of action for the whistleblower.

    Although the employees ultimately were permitted to pursue their alternative claims of common law wrongful discharge, the Hausman decision became a catalyst for statutory reform. Both the Wisconsin Elder Abuse Reporting System and Wis. Stat. section 50.07(1)(e) were amended to provide broader protection and a private administrative right of action.7 Most significantly, however, the Wisconsin Legislature acted to close the remaining gaps exposed by the Hausman case by passing the Health Care Worker Protection statute.8

    Health Care Worker Protection Statute

    In the main, the Health Care Worker Protection statute provides employment protection to health care facility and health care provider employees who, in good faith, report quality of care concerns to persons who are in a position to take corrective action. Covered employers are prohibited from taking or threatening to take disciplinary action against an employee because the employee engaged in protected activities.

    Enforcement Mechanism and Remedies. The Department of Workforce Development (DWD) enforces the statute and has the statutory authority to receive, investigate, and remedy complaints.9 Once a complaint has been filed, a DWD investigator investigates the allegations by gathering information from witnesses, requesting the parties' position statements, and making specific fact inquiries.

    When the investigator is satisfied that the investigation is complete, a written Initial Determination is issued to the parties. The Initial Determination states the investigator's factual findings but, more importantly, specifies whether there is "probable cause" or "no probable cause" to believe that the law has been violated. Probable cause means "a reasonable ground for belief exists, supported by facts and circumstances strong enough in themselves, to warrant a prudent person to believe that a violation of the statute has probably occurred."10

    The probable cause/no probable cause determination is significant not only because it reflects the DWD's assessment of the merits but also because it establishes the procedural status of the complaint. If the DWD issues a probable cause determination the case is certified for a hearing on its merits before an administrative law judge. The complaint is dismissed if the DWD issues a no probable cause determination. A complainant may contest the no probable cause determination by filing a written request for an administrative hearing on the issue of probable cause.11

    DWD remedies for statutory violations are injunctive relief, reinstatement, and backpay.12 Civil monetary penalties also may be assessed. The statutory penalty is not more than $1,000 for a first violation, not more than $5,000 for a second violation committed within 12 months of a previous violation, and not more than $10,000 for a violation committed within 12 months of two or more previous violations.

    Statute's Impact as Measured by Administrative Enforcement Data

    Daryll Neuser

    Neuser

    Daryll J. Neuser, U.W. 1999, is an attorney in the Labor and Employment Practice Area of Reinhart Boerner Van Deuren s.c. The firm practices extensively in general health care law and employer-side labor and employment matters including proactive employer counseling and litigation of employment-related claims.

    The author is grateful to LeAnna Ware of the Department of Workforce Development for her assistance in compiling complaint statistics for this article. Editor's Note: Watch for an upcoming series of articles on the elderly and nursing homes this spring.

    Ninety-four administrative complaints have been filed in the three years since the statute was enacted.13 While the number of complaints represents only approximately 1 percent of the DWD's employment-related caseload,14 the number of complaints has significantly increased each year. Six complaints were filed in 2000, 22 complaints were filed in 2001, 47 complaints were filed in 2002, and 16 complaints had been filed in the first six months of 2003.15

    The DWD has issued Initial Determinations in 36 cases. The DWD found probable cause in 17 cases and no probable cause in 19 cases. Despite the appearance that probable cause is found in nearly half of investigated cases, the annual ratio of probable cause to no probable cause determinations under the statute has been roughly equal to the ratio for other employment-related laws enforced by the DWD. In 2002, for example, DWD investigators found probable cause in 561 of 2,157 Initial Determinations under the Wisconsin Fair Employment Act - a rate of 26 percent. Probable cause was found in five of 20 Initial Determinations under the Health Care Worker Protection statute in the same year.

    A review of the Initial Determinations provides additional insight into the statute's impact. Forty-two percent of the Initial Determinations were based on complaints filed by complainants identifying themselves as in the nursing profession, including certified nursing assistants, registered nurses, and licensed practical nurses. Individuals employed in various other occupations within the health care industry, including dental hygienists, emergency medical technicians, and physicians, also have filed complaints. The statute's language is broad, however, and protects many more occupations than those traditionally identified as "health care" positions. For example, a maintenance employee filed a complaint after allegedly being harassed for repeatedly reporting the odor of sewer gases within a residential care facility.

    Fifty percent of respondents named in the Initial Determinations operate residential care facilities such as nursing homes, community-based residential facilities, and assisted living facilities. Hospices, hospitals, and medical clinics were respondents in less than 19 percent of the Initial Determinations. Again, however, the statute's language is broad and covers more facilities than those traditionally identified as "health care" facilities. For example, a mail-service pharmacy, a dental health project, a blood collection service, and a medical management group also have been named as respondents. Because the statute specifically provides for personal liability, three individuals also have been named as corespondents.

    The Initial Determinations also show that complainants are reporting quality of care concerns that, if true, are serious violations of laws, regulations, or recognized clinical or ethical standards. Forty percent of the Initial Determinations allege facts that generally constitute inadequate or improper care, such as performing unnecessary surgery, operating outside surgical privileges, prescribing medication without seeing or consulting patients, assigning patient care to unqualified workers, cross contamination during medical procedures, and other improper resident/patient care. Sixteen percent allege abuse and neglect. Resident/patient care complaints such as spoiled food, errors in the administration of medication, spoiled medication, failure to obtain necessary licensing, and privacy concerns also were alleged.

    In one illustrative case, a registered nurse alleged that she was fired after reporting her employer, a community-based residential facility, to the Wisconsin Department of Health and Family Services' Bureau of Quality Assurance. The nurse complained of resident care issues, including the following: 1) residents did not receive daily programming, 2) the owner left the facility on short notice and without adequate staffing, 3) employees smoked in the kitchen, 4) employees were unprepared for emergencies, and 5) employees were not properly trained in dispensing medication and caring for residents' personal needs. During the DWD investigation, two of the complainant's coworkers provided written statements that alleged the facility's owner informed them that he knew the complainant had "called the state" and that he was going to terminate the complainant's employment as a result. Not surprisingly, the DWD found probable cause to believe the complainant had been retaliated against for reporting her quality of care concerns.

    Not one of the DWD Initial Determinations, however, identified the specific standard of care purportedly violated. The statutory protection is triggered when an employee reports information that would lead a reasonable person to believe that a standard of care, created by state or federal law or rule or created by a clinical or ethical standard, was violated. Therefore, it is the complainant's burden to identify the specific standard of care that was purportedly violated.

    While the DWD Initial Determinations disregarded this necessary element of this complainant's case, another complainant's failure to identify a specific standard of care was a central issue in one administrative hearing.16 In that case, a respiratory care practitioner reported several concerns to her supervisor, including that a physician had engaged in inappropriate outbursts towards staff and patient families. The respiratory care practitioner filed an administrative complaint after she was fired. With respect to the reported outbursts, the administrative law judge found that the outbursts did not trigger employment protection because "in none of [complainant's] reports to [her supervisor], however, did she identify any state law or rule or federal law or regulation, nor did she identify any standard established by any state law or rule or federal law or regulation, or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body, that [was allegedly violated], and in none of her verbal reports to [her supervisor] did she specifically allege that [the physician] had posed a potential risk to public health or safety, or that any of the patients had adverse clinical outcomes because of [the physician's] outbursts." Thus, the complaint was dismissed because of the complainant's failure to specifically identify a standard of care purportedly violated.

    Conclusion

    The Health Care Worker Protection statute enforcement data suggest that the statute has removed a primary barrier to the reporting of quality of care concerns in Wisconsin. The data show that the rate of complaints under the statute is increasing as more health care workers take advantage of the protective legislation. Perhaps more importantly, some complainants are exposing serious quality of care issues of the type identified in the U.S. Department of Health and Human Services July 2003 report.

    Wisconsin's health care industry is facing significant challenges that affect the quality of care. The number of Wisconsin citizens who are patients or residents in care facilities is increasing. The supply of health care professionals in the labor market continues to be less than demand. Many health care workers work long hours, in part due to staffing shortages and mandatory overtime. Given these significant challenges, the media coverage of medical mistakes and the rising public awareness of these issues, it is likely that the importance of the Health Care Worker Protection statute will increase.

    Endnotes

    1Linda T. Kohn, Janet M. Corrigan & Molla S. Donaldson, eds., To Err Is Human: Building a Safer Health System (Institute of Medicine, 2000); American Hosp. Ass'n, Hospital Statistics (Chicago, 1999).

    2Wis. Stat. § 146.997 (2001-2002).

    3Wis. Stat. §§ 50.07(1)(e), 46.90(4)(b).

    4Hausman v. St. Croix Care Ctr., 214 Wis. 2d 654, 571 N.W.2d 393 (1997).

    5Wis. Stat. § 46.90(4) (1993-1994).

    6Wis. Stat. § 50.07(1)(e) (1993-1994).

    71997 Wis. Act 131.

    81999 Wis. Act 176.

    9Wis. Stat. §§ 106.54(6), 230.45(1)(L).

    10Wis. Admin. Code § DWD 218.02(8).

    11Wis. Admin. Code § DWD 218.08.

    12Wis. Stat. § 111.39.

    13The statute was enacted on May 17, 2000 and published on June 1, 2000. By operation of law, the statute became effective on June 2, 2000. Wis. Stat. § 991.11.

    14For example, in 2002, the DWD received 4,459 employment-related complaints. Forty-seven of those complaints alleged a violation of Wis. Stat. section 146.997.

    15For comparison, 17 of the 46 complaints filed in 2002 were filed in the first six months of that year. The remaining 29 complaints were filed in the second half of the year.

    16Cynthia Korn v. Divine Savior Healthcare Inc., ERD Case No. CR200103098 (Brown, May 16, 2003).




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