71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
HA to HB 3614
LC 1549/HB 3614-1
HOUSE AMENDMENTS TO
HOUSE BILL 3614
By COMMITTEE ON BUSINESS, LABOR, AND CONSUMER AFFAIRS
May 24
On page 1 of the printed bill, line 2, after the second
semicolon delete the rest of the line and line 3 and insert 'and
amending ORS 441.057 and 659.095.'.
Delete lines 5 through 29 and delete pages 2 and 3 and insert:
' { + SECTION 1. + } { + As used in sections 1 to 6 of this
2001 Act:
' (1) 'Affiliated health care facility' means a health care
facility that has a business relationship with another health
care facility.
' (2) 'Health care facility' means:
' (a) An acute inpatient care facility, as defined in ORS
442.470; or
' (b) A dialysis center.
' (3) 'Health care provider' means a person licensed, certified
or otherwise authorized or permitted by the law of this state to
administer health care in the ordinary course of business or
practice of a profession.
' (4) 'Manager' means a person who:
' (a) Has authority to direct and control the work performance
of a health care provider;
' (b) Has authority to take corrective action regarding a
violation of law or a rule or a violation of professional
standards of practice, about which a health care provider has
complained; or
' (c) Has been designated by a health care facility to receive
the notice described in section 2 (2) of this 2001 Act.
' (5) 'Public body' has the meaning given that term in ORS
30.260.
' (6) 'Retaliatory action' means the discharge, suspension,
demotion, harassment, denial of employment or promotion, or
layoff of a health care provider, or other adverse action taken
against a health care provider in the terms or conditions of
employment of the health care provider. + }
' { + SECTION 2. + } { + (1) A health care facility may not
take retaliatory action against a health care provider because
the health care provider:
' (a) Discloses or threatens to disclose to a manager, a
private accreditation organization or a public body an activity,
policy or practice of the health care facility or of an
affiliated health care facility that the health care provider
reasonably believes is in violation of law or a rule or is a
violation of professional standards of practice that the health
care provider reasonably believes poses a risk to the health,
safety or welfare of a patient or the public;
' (b) Provides information to or testifies before a private
accreditation organization or a public body conducting an
investigation, hearing or inquiry into an alleged violation of
law or a rule or into an activity, policy or practice that may be
in violation of professional standards of practice by a health
care facility or an affiliated health care facility that the
health care provider reasonably believes poses a risk to the
health, safety or welfare of a patient or the public;
' (c) Objects to or refuses to participate in any activity,
policy or practice of the health care facility or of an
affiliated health care facility that the health care provider
reasonably believes is in violation of law or a rule or is a
violation of professional standards of practice that the health
care provider reasonably believes poses a risk to the health,
safety or welfare of a patient or the public; or
' (d) Participates in a committee or peer review process or
files a report or a complaint that discusses allegations of
unsafe, dangerous or potentially dangerous care.
' (2) Except as provided in subsection (3) of this section, the
protection in subsection (1) of this section against retaliatory
action does not apply to a health care provider unless the health
care provider before making a disclosure to a private
accreditation organization or a public body as described in
subsection (1)(a) of this section:
' (a) Gives written notice to a manager of the health care
facility of the activity, policy, practice or violation of
professional standards of practice that the health care provider
reasonably believes poses a risk to public health; and
' (b) Provides the manager a reasonable opportunity to correct
the activity, policy, practice or violation.
' (3) A health care provider is not required to comply with the
provisions of subsection (2) of this section if the health care
provider:
' (a) Is reasonably certain that the activity, policy, practice
or violation is known to one or more managers of the health care
facility or an affiliated health care facility and an emergency
situation exists;
' (b) Reasonably fears physical harm as a result of the
disclosure; or
' (c) Makes the disclosure to a private accreditation
organization or a public body for the purpose of providing
evidence of an activity, policy or practice of a health care
facility or an affiliated health care facility that the health
care provider reasonably believes is a crime. + }
' { + SECTION 3. + } { + (1) A health care provider
aggrieved by an act prohibited by section 2 of this 2001 Act may
bring an action in circuit court of the county in which the
health care facility is located. All remedies available in a
common law tort action are available to a health care provider if
the health care provider prevails in an action brought under this
subsection and are in addition to any remedies provided in
subsection (2) of this section.
' (2) In an action brought under subsection (1) of this
section, a circuit court may do any of the following:
' (a) Issue a temporary restraining order or a preliminary or
permanent injunction to restrain a continued violation of section
2 of this 2001 Act.
' (b) Reinstate the health care provider to the same or
equivalent position that the health care provider held before the
retaliatory action.
' (c) Reinstate full fringe benefits and seniority rights to
the health care provider.
' (d) Compensate the health care provider for lost wages,
benefits and other remuneration, including interest.
' (e) Order the health care facility to pay reasonable
litigation costs of the health care provider, including
reasonable expert witness fees and reasonable attorney fees.
' (f) Award punitive damages as provided in ORS 18.537.
' (3) A health care provider who brings an action under
subsection (1) of this section shall also deliver a copy of the
complaint to the Commissioner of the Bureau of Labor and
Industries. The commissioner shall establish and maintain a
register of all complaints delivered to the commissioner by
health care providers.
' (4) Except as provided in subsection (5) of this section, in
any action brought by a health care provider under subsection (1)
of this section, if the court finds that the health care provider
had no objectively reasonable basis for asserting the claim, the
court may award costs, expert witness fees and reasonable
attorney fees to the health care facility.
' (5) A health care provider may not be assessed costs or fees
under subsection (4) of this section if, upon exercising
reasonable and diligent efforts after filing the action, the
health care provider moves to dismiss the action against the
health care facility after determining that no issue of law or
fact exists that supports the action against the health care
facility. + }
' { + SECTION 4. + } { + (1) A health care facility that
takes any retaliatory action described in section 2 of this 2001
Act against a health care provider commits an unlawful employment
practice.
' (2) A health care provider claiming to be aggrieved by an
alleged violation of section 2 of this 2001 Act may file a
complaint with the Commissioner of the Bureau of Labor and
Industries in the manner provided by ORS 659.040. The
commissioner shall enforce the provisions of section 2 of this
2001 Act in the manner provided in ORS 659.010 to 659.110
regarding unlawful employment practices.
' (3) The remedies under this section and section 3 of this
2001 Act are supplemental and not mutually exclusive. + }
' { + SECTION 5. + } { + (1) A health care facility shall
post a notice summarizing the provisions of sections 2, 3 and 4
of this 2001 Act in a conspicuous place on the premises of the
health care facility. The notice must be posted where notices to
employees and applicants for employment are customarily
displayed.
' (2) Any health care facility that willfully violates this
section is subject to a civil penalty not to exceed $500. Civil
penalties under this section shall be imposed by the Health
Division in the manner provided by ORS 183.090. + }
' { + SECTION 6. + } { + (1) Except as provided in
subsection (2) of this section, nothing in sections 2 and 3 of
this 2001 Act shall be deemed to diminish any rights, privileges
or remedies of a health care provider under federal or state law
or regulation or under any collective bargaining agreement or
employment contract.
' (2) Sections 3 and 4 of this 2001 Act provide the only
remedies under state law for a health care provider, as defined
in section 1 of this 2001 Act, for an alleged violation of
section 2 of this 2001 Act by an acute inpatient care facility or
a dialysis center. + }
' { + SECTION 7. + } ORS 659.095 is amended to read:
' 659.095. (1) If, within one year following the filing of a
complaint { - pursuant to - } { + under + } ORS 659.040 (1)
or 659.045 (1) { + or section 4 of this 2001 Act + } except a
complaint alleging violations of ORS 30.670 or 30.685, the
Commissioner of the Bureau of Labor and Industries has been
unable to obtain a conciliation agreement with a respondent, or
has not caused to be prepared and attempted to serve the specific
charges referred to in ORS 659.060 (1), the commissioner shall so
notify the complainant in writing and within 90 days after the
date of mailing of such notice, the complainant may file a civil
suit as provided for in ORS 659.121 { + or section 3 of this
2001 Act + }. Within one year following the filing of the
complaint, the commissioner may issue, or cause to be issued, an
administrative determination. If no administrative determination
has been issued at the end of the one-year period, the
commissioner has no further authority to continue proceedings to
resolve the complaint, except as provided in ORS 659.070 and
659.085. If prior to the expiration of one year from the filing
of a complaint pursuant to this section the commissioner
dismisses the complaint for any reason other than a dismissal
pursuant to ORS 659.060 (3), or the complainant requests the
commissioner to terminate proceedings with respect to the
complaint, the commissioner shall notify the complainant of said
dismissal or termination in writing, and within 90 days after the
date of mailing of such notice of dismissal or termination, a
civil suit may be filed as provided for in ORS 659.121 { + or
section 3 of this 2001 Act + }.
' (2) As used in this section, 'administrative determination '
means a written notice to the respondent and the complainant
signed by the commissioner, or the commissioner's designee, which
includes, but is not limited to, the following information:
' (a) The name of the complainant;
' (b) The name of the respondent;
' (c) Allegations contained in the complaint;
' (d) Facts found by the commissioner to have a bearing on the
allegations contained in the complaint in the course of any
investigation, conference or other information gathering function
of the Bureau of Labor and Industries as such facts relate to
laws within the bureau's jurisdiction; and
' (e) A statement as to whether investigation of the complaint
has disclosed any substantial evidence supporting the allegations
of the complaint.
' { + SECTION 8. + } ORS 441.057 is amended to read:
' 441.057. (1) Rules adopted by the Health Division or the
Senior and Disabled Services Division pursuant to ORS 441.055
shall include procedures for the filing of complaints as to the
standard of care in any health care facility and provide for the
confidentiality of the identity of any complainant.
' (2) No health care facility, or person acting in the interest
of the facility, shall take any disciplinary or other adverse
action against any employee who in good faith brings evidence of
inappropriate care or any other violation of law or rules to the
attention of the proper authority solely because of the
employee's action as described in this subsection.
' (3) Any employee who has knowledge of inappropriate care or
any other violation of law or rules shall utilize established
reporting procedures of the health care facility administration
before notifying the Health Division, the Senior and Disabled
Services Division or other state agency of the alleged violation,
unless the employee believes that patient health or safety is in
immediate jeopardy or the employee makes the report to the Health
Division or the Senior and Disabled Services Division under the
confidentiality provisions of subsection (1) of this section.
' (4) The protection of health care facility employees under
subsection (2) of this section shall commence with the reporting
of the alleged violation by the employee to the administration of
the health care facility or to the Health Division, the Senior
and Disabled Services Division or other state agency pursuant to
subsection (3) of this section.
' (5) Any person suffering loss or damage due to any violation
of subsection (2) of this section has a right of action for
damages in addition to other appropriate remedy.
' { + (6) The provisions of this section do not apply to a
health care provider, as defined in section 1 of this 2001 Act,
who claims to be aggrieved by a violation of section 2 of this
2001 Act by an acute inpatient care facility or a dialysis
center. + }
' { + SECTION 9. + } { + Sections 2 to 4 of this 2001 Act
and the amendments to ORS 441.057 and 659.095 by sections 7 and 8
of this 2001 Act apply only to actions taken by a health care
provider on or after the effective date of this 2001 Act. + } ' .
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