Date of Hearing: June 19, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 322

Author:(Bradford) – As Introduced Ver:February 15, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill grants a health facility employee, or their representative, the right to privately discuss possible regulatory violations or patient safety concerns with an inspector during the course of an investigation or inspection by the California Department of Public Health (CDPH).

FISCAL EFFECT:

Negligible.

COMMENTS:

1. Purpose. According to the author, both the Division of Occupational Safety and Health of California (Cal/OSHA) and CDPH have the ability to investigate or inspect health facilities. However, only during a Cal/OSHA inspection are employees given the right to privately discuss potential regulatory violations or safety concerns. This bill intends to bring parity to the law by protecting healthcare workers’ right to speak privately with a state hospital inspector from CDPH during an inspection. This bill is sponsored by the California Nurses Association and supported by other labor groups. It has no opposition.
2. Background. CDPH conducts both regular inspections and investigations of facilities based on complaints. According to the department, while at the facility, the surveyor observes staff and the facility’s operations, interviews patients, residents and staff and reviews the facility’s medical records and other relevant documentation related to the investigation. CDPH surveyors performing complaint investigations are trained to conduct all interviews in private settings to protect the identity of complainants. CDPH notes it tries to provide all staff an opportunity to speak with the surveyors in a private setting on issues related to an investigation.
3. Proposed Trailer Bill Language. Although the Senate adopted placeholder trailer bill language similar to the provisions of this bill, the Assembly took no similar action and the 2019 Conference Committee on the Budget did not adopt language related to this issue.
   

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: June 11, 2019

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

SBPCA Bill Id:SB 322

Author:(Bradford) – As Introduced Ver:February 15, 2019

SENATE VOTE: 36-0

SUBJECT: Health facilities: inspections: employee reporting.

SUMMARY: Grants a health facility employee, or their representative, the right to privately discuss possible regulatory violations or patient safety concerns with an inspector during the course of an investigation or inspection by the Department of Public Health (DPH). Makes other technical and clarifying changes.

EXISTING LAW:

1. Establishes DPH, which, among other functions, licenses and regulates health facilities, including general acute care hospitals, special hospitals, and acute psychiatric hospitals.
2. Establishes whistleblower protections that prohibit a health facility from discriminating or retaliating, in any manner, against a patient, employee, member of the medical staff, or other healthcare worker of the health facility because that person has done either of the following:
   1. Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity; or,
   2. Has initiated, participated, or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility that is carried out by an entity or agency responsible for accrediting or evaluating the facility or its medical staff, or governmental entity.
3. Defines discriminatory treatment of an employee, member of the medical staff, or any other healthcare worker as including, but not being limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other healthcare worker of the facility, or the threat of any of these actions.
4. Defines health facility, for purposes of whistleblower protections, as any licensed health facility with the exception of long-term health care facilities.
5. Subjects a violation of the whistleblower protection to a civil penalty of up to $25,000, and makes a person who willfully violates the whistleblower protections guilty of a misdemeanor punishable by a fine of not more than $75,000, in addition to the civil penalty.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, both the Division of Occupational Safety and Health of California (Cal/OSHA) and DPH have the ability to investigate or inspect health facilities. However, only during a Cal/OSHA inspection are employees given the right to privately discuss potential regulatory violations or safety concerns. The vast majority of employees are unlikely to be aware of this counter-intuitive, and small, but very important discrepancy. The author states that the presence of facility management during DPH inspections can be enough to dissuade nurses and other staff from feeling safe to speak freely about safety concerns and that this can cause potentially dangerous hazards to go unreported. The author concludes that this bill brings parity to the law by protecting healthcare workers’ right to speak privately with a state hospital inspector from DPH during an inspection — a right that is already guaranteed during Cal/OSHA inspections.
   
2. BACKGROUND.
   1. Cal/OSHA inspections. The Department of Industrial Relations (DIR) within the Labor and Workforce Development Agency administers the Cal/OSHA program. DIR protects employees who report hazardous working conditions, and enforces worker safety and health standards. The requirement added by this bill is similar to a requirement in Cal/OSHA. Under Cal/OSHA, during the course of any investigation or inspection of a place of employment, any employee or employer, or their authorized representatives, have the right to discuss safety and health violations with the inspector privately during the course of an investigation. Where there is no authorized employee representative, the Cal/OSHA inspectors are required to consult with a reasonable number of employees concerning matters of health and safety of the place of employment.
   2. DPH inspections. DPH is required to visit a hospital within 48 hours of a whistleblower complaint. Complaints filed by current and former staff are documented and assigned to a health facilities evaluator supervisor (a registered nurse) who prioritizes the complaint based on the immediacy of the alleged violation, the risk posed to patients, residents, or staff, and the state statutes and federal requirements that DPH enforces. According to DPH, while at the facility, the surveyor observes staff and the facility’s operations, interviews patients, residents, and staff (medical and administrative), and reviews the facility’s medical records and other relevant documentation related to the investigation. DPH surveyors performing complaint investigations are trained to conduct all interviews in private settings to protect the identity of complainants. DPH states that it does not have a policy prohibiting management from participating in employee interviews; but tries to provide all staff an opportunity to speak with the surveyors in a private setting on issues related to the investigation.
      
      The Senate Budget Committee adopted placeholder trailer bill language similar to the provisions of this bill. The Assembly Budget Committee took no action.
      
      
      
      
   3. Whistleblower complaints to DPH. Over the last three years, DPH has received over 8,000 complaints, as follows:

1. SUPPORT. The California Nurses Association (CNA) is the sponsor of this bill and states that it does not make sense to have two different policies for state run inspections of the same workplace. CNA notes this bill will improve the integrity and effectiveness of DPH inspections by ensuring that employees are able to speak privately with DPH inspectors, just as employees are currently allowed to speak privately with Cal/OSHA inspectors. CNA concludes this bill will give inspectors a more complete understanding of the issues at a hospital, which will help improve efficiencies and result in fewer additional follow-up inspections.
   
   SEIU California supports this bill noting that the mere presence of management can be enough to make employees hesitant to notify an inspector of a possible issue, and this bill protects workers, patients, families, and visitors in hospitals by allowing workers to speak freely about safety concerns they have witnessed without management present.
2. PREVIOUS LEGISLATION.
   1. AB 1102 (Rodriguez), Chapter 275, Statutes of 2017, increased the maximum criminal fine, from $20,000 to $75,000, for violations of whistleblower protection laws that apply to patients, employees and other health care workers of hospitals.
   2. SB 632 (Salas), Chapter 683, Statutes of 2007, established protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility.
   3. SB 97 (Burton), Chapter 155, Statutes of 1999, prohibited health facilities from retaliating against a patient or employee who presents a grievance or participates in any investigation against that facility.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Nurses Association (sponsor)
American Federation of State, County And Municipal Employees, AFL-CIO
California Labor Federation
California Long-Term Care Ombudsman Association
California Professional Firefighters
California State Council of Service Employees
Natural Resources Defense Council

Opposition

None on file.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

 THIRD READING  

Bill No: SB 322

Author: Bradford (D)

Introduced: 2/15/19

Vote: 21

SENATE HEALTH COMMITTEE: 8-0, 3/27/19

AYES: Pan, Stone, Durazo, Hurtado, Leyva, Mitchell, Monning, Rubio

NO VOTE RECORDED: Grove

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: Health facilities: inspections: employee reporting

SOURCE: California Nurses Association/National Nurses United

DIGEST:

This bill requires hospital employees to have the right to discuss possible regulatory violations or patient safety concerns with the inspector privately during the course of an investigation or inspection by the Department of Public Health.

ANALYSIS:

Existing law:

1. Licenses and regulates health facilities, including general acute care hospitals, special hospitals, and acute psychiatric hospitals, by the Department of Public Health (DPH). [HSC §1250, et seq.]
2. Establishes whistleblower protections to encourage patients and employees of health care facilities to notify government entities of suspected unsafe patient care and conditions by prohibiting health facilities from discriminating or retaliating, in any manner, against any patient or employee of the health facility because that person has presented a grievance or complaint to the facility or to a governmental entity, or has initiated or participated in an investigation or administrative proceeding related to the quality of care, services or conditions at the facility. [HSC §1278.5]
3. Defines “health facility,” for purposes of the whistleblower protection provisions described in 2) above, as any licensed health facility with the exception of long-term health care facilities, as specified. [HSC §1278.5]
4. Subjects a violation of the whistleblower protections described in 2) above to a civil penalty of up to $25,000, assessed and recovered through an administrative process as specified. Makes any person who willfully violates the whistleblower protections guilty of a misdemeanor punishable by a criminal fine of up to $75,000, in addition to the civil penalty. [HSC §1278.5]

This bill revises the whistleblower protections in existing law for hospital patients and employees by requiring a hospital employee, or the employee’s representative, to have the right to discuss possible regulatory violations or patient safety concerns with the inspector privately during the course of an investigation or inspection by DPH.

Comments

1. Author’s statement. According to the author, currently both the Division of Occupational Safety and Health of California (Cal/OSHA) and DPH have the ability to investigate or inspect health facilities. However, only during a Cal/OSHA inspection are employees given the right to privately discuss potential regulatory violations or safety concerns. The vast majority of employees are unlikely to be aware of this counter-intuitive, and small, but very important discrepancy. The presence of facility management during DPH inspections can be enough to persuade nurses and other staff from feeling safe to speak freely about safety concerns. This can cause potentially dangerous hazards to go unreported. This bill brings parity to the law by protecting healthcare workers’ right to speak privately with a state hospital inspector from DPH during an inspection — a right that is already guaranteed under the California Labor Code during Cal/OSHA inspections.
2. Similar requirement exists in Cal/OSHA. The requirement added by this bill is very similar to a requirement in Cal/OSHA. Under Cal/OSHA, during the course of any investigation or inspection of a place of employment, any employee or employer, or their authorized representatives, have the right to discuss safety and health violations with the inspector privately during the course of an investigation. Where there is no authorized employee representative, the Cal/OSHA inspectors are required to consult with a reasonable number of employees concerning matters of health and safety of the place of employment.
3. DPH practice. According to DPH, as part of the initial or periodic licensing survey, as well as during a complaint investigation, DPH surveyors speak to employees that are relevant to the complaint or survey. DPH states it is not aware of interference from facilities when surveyors attempt to speak to employees. According to its data, there has been one complaint in the last five years related to whistleblower protections for hospitals. It is DPH policy to speak with all levels of staff, including staff that provide direct patient care when on site, and that DPH surveyors will not turn away staff that want to speak with them.

Related/Prior Legislation

AB 1102 (Rodriguez, Chapter 275, Statutes of 2017) increased the maximum criminal fine, from $20,000 to $75,000, for violations of whistleblower protection laws that apply to patients, employees and other health care workers of hospitals.

SB 632 (Salas, Chapter 683, Statutes of 2007) established protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility.

SB 97 (Burton, Chapter 155, Statutes of 1999) prohibited health facilities from retaliating against a patient or employee who presents a grievance or participates in any investigation against that facility.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 4/23/19)

California Nurses Association/National Nurses United (source)

California Labor Federation

California Long-Term Care Ombudsman
SEIU California

OPPOSITION: (Verified 4/23/19)

None received

ARGUMENTS IN SUPPORT: The California Nurses Association/National Nurses United (CNA) is sponsoring this bill, stating that it protects the ability of nurses and other healthcare workers to speak privately with a state hospital inspector from DPH, which is a right they already have when an inspector is from Cal/OSHA. CNA states that if a nurse is afraid to speak up and point out a concern because management is present, our friends and family are the ones who will suffer. CNA states that the presence of management during DPH’s inspections has had a chilling effect on nurses and other hospital employees, and it does not make sense to have two different policies for state run inspections of the same workplace. SEIU California and the California Labor Federation make similar arguments in support.

Prepared by: Vincent D. Marchand / HEALTH / (916) 651-4111

4/24/19 14:55:25

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SENATE COMMITTEE ON HEALTH

Senator Dr. Richard Pan, Chair

BILL NO: SB 322

SUBJECT: Health facilities: inspections: employee reporting

SUMMARY:

Requires hospital employees to have the right to discuss possible regulatory violations or patient safety concerns with the inspector privately during the course of an investigation or inspection by the Department of Public Health.

Existing law:

1. Licenses and regulates health facilities, including general acute care hospitals, special hospitals, and acute psychiatric hospitals, by the Department of Public Health (DPH). [HSC §1250 et seq.]
2. Establishes whistleblower protections to encourage patients and employees of health care facilities to notify government entities of suspected unsafe patient care and conditions by prohibiting health facilities from discriminating or retaliating, in any manner, against any patient or employee of the health facility because that person has presented a grievance or complaint to the facility or to a governmental entity, or has initiated or participated in an investigation or administrative proceeding related to the quality of care, services or conditions at the facility. [HSC §1278.5]
3. Defines “health facility,” for purposes of the whistleblower protection provisions described in 2) above, as any licensed health facility with the exception of long-term health care facilities, as specified. [HSC §1278.5]
4. Subjects a violation of the whistleblower protections described in 2) above to a civil penalty of up to $25,000, assessed and recovered through an administrative process as specified. Makes any person who willfully violates the whistleblower protections guilty of a misdemeanor punishable by a criminal fine of up to $75,000, in addition to the civil penalty. [HSC §1278.5]

This bill revises the whistleblower protections in existing law for hospital patients and employees by requiring a hospital employee, or the employee’s representative, to have the right to discuss possible regulatory violations or patient safety concerns with the inspector privately during the course of an investigation or inspection by DPH.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, currently both the Division of Occupational Safety and Health of California (Cal/OSHA) and DPH have the ability to investigate or inspect health facilities. However, only during a Cal/OSHA inspection are employees given the right to privately discuss potential regulatory violations or safety concerns. The vast majority of employees are unlikely to be aware of this counter-intuitive, and small, but very important discrepancy. The presence of facility management during DPH inspections can be enough to persuade nurses and other staff from feeling safe to speak freely about safety concerns. This can cause potentially dangerous hazards to go unreported. This bill brings parity to the law by protecting healthcare workers’ right to speak privately with a state hospital inspector from DPH during an inspection — a right that is already guaranteed under the California Labor Code during Cal/OSHA inspections.
2. Similar requirement exists in Cal/OSHA. The requirement added by this bill is very similar to a requirement in Cal/OSHA. Under Cal/OSHA, during the course of any investigation or inspection of a place of employment, any employee or employer, or their authorized representatives, have the right to discuss safety and health violations with the inspector privately during the course of an investigation. Where there is no authorized employee representative, the Cal/OSHA inspectors are required to consult with a reasonable number of employees concerning matters of health and safety of the place of employment.
3. DPH practice. According to DPH, as part of the initial or periodic licensing survey, as well as during a complaint investigation, DPH surveyors speak to employees that are relevant to the complaint or survey. DPH states it is not aware of interference from facilities when surveyors attempt to speak to employees. According to its data, there has been one complaint in the last five years related to whistleblower protections for hospitals. It is DPH policy to speak with all levels of staff, including staff that provide direct patient care when on site, and that DPH surveyors will not turn away staff that want to speak with them.
4. Prior legislation. AB 1102 (Rodriguez, Chapter 275, Statutes of 2017) increased the maximum criminal fine, from $20,000 to $75,000, for violations of whistleblower protection laws that apply to patients, employees and other health care workers of hospitals.
   
   SB 632 (Salas, Chapter 683, Statutes of 2007) established protections, similar to those in existing law for employees and patients, for medical staff and other health care workers who file complaints or grievances concerning a licensed health care facility, or who initiate or participate in an investigation or proceeding related to the quality of care, services, or conditions at the facility.
   
   SB 97 (Burton, Chapter 155, Statutes of 1999) prohibited health facilities from retaliating against a patient or employee who presents a grievance or participates in any investigation against that facility.
5. Support. The California Nurses Association/National Nurses United (CNA) is sponsoring this bill, stating that it protects the ability of nurses and other healthcare workers to speak privately with a state hospital inspector from DPH, which is a right they already have when an inspector is from Cal/OSHA. CNA states that if a nurse is afraid to speak up and point out a concern because management is present, our friends and family are the ones who will suffer. CNA states that the presence of management during DPH’s inspections has had a chilling effect on nurses and other hospital employees, and it does not make sense to have two different policies for state run inspections of the same workplace. SEIU California and the California Labor Federation make similar arguments in support.

SUPPORT AND OPPOSITION:

Support: California Nurses Association/National Nurses United (sponsor)
California Labor Federation

California Long-Term Care Ombudsman
SEIU California

Oppose: None received

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