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:
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
|
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).
Wisconsin
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