H.R. 8310 — Patient Safety and Whistleblower Protections Act

This section establishes definitions for terms used in the Act, including (1) "communicate," with respect to health care safety information, to include written or oral communications; (2) "government official" to mean any local, State, Tribal, or Federal governmental official, including municipal mayors and their staff, State governors and their staff, State legislators and their staff, Federal legislators and their staff, and staff or leaders of Federal agencies or other Federal authorities; (3) "health care facility" to mean a facility in which health care services are provided, including hospitals, ambulatory surgery centers, skilled nursing facilities, home health agencies, clinics, urgent care centers, physician offices, dental offices, end-stage renal facilities, chiropractic offices, optometry offices, ophthalmology offices, nursing homes, behavioral health centers, community mental health centers, addiction treatment facilities, rehabilitation centers, hospices, outpatient therapy facilities, and Federally qualified health centers; (4) "health care practitioner" to mean an individual licensed by a State, or otherwise authorized, to provide health care services; (5) "health care service" to mean care, treatment, services, or other procedures to maintain, diagnose, or otherwise affect an individual’s physical or mental condition, including medical, paramedical, nursing, chiropractic, dental, behavioral, psychiatric, psychological, and vision services; (6) "patient safety concern" to mean a communication regarding a concern that materially affects or has the potential to materially affect the health of one or more patients, including concerns about the quality of health care, patient safety, or staffing practices (such as the type of health care practitioner caring for patients or the number of patients for whom a health care practitioner is responsible), or the sufficiency of equipment or supplies or the appropriateness of health care services or referrals; and (7) "retaliation" to mean any adverse employment action against a health care practitioner or any other materially adverse action that would dissuade a reasonable health care practitioner from raising patient safety concerns, including adverse actions against a health care practitioner who is no longer employed by, contracting with, or otherwise providing health care services at the health care facility to which the patient safety concerns relate.

This section prohibits health care facilities from retaliating against health care practitioners for communicating patient safety concerns to specified entities, including supervisors or colleagues with authority, state oversight authorities, government officials, patient safety organizations (as defined in section 921 of the Public Health Service Act), investigators, or—after 90 days without significant corrective action following an initial communication to certain internal or designated entities—the news media. It establishes a rebuttable presumption of retaliation for any adverse employment or materially adverse action against the practitioner within 180 days of such communication; attributes retaliation by related parties (e.g., managers, staffing companies, or contractors) to the facility, which may seek indemnification; voids any contractual provisions prohibiting such communications or truthful speech on care quality; releases practitioners from related non-competition agreements; clarifies that non-retaliatory adverse actions remain permissible; and authorizes civil lawsuits against practitioners for bad faith communications validated as invalid by an independent investigation.

This section establishes civil enforcement mechanisms against health care facilities that retaliate against health care practitioners for communicating patient safety concerns. It authorizes (1) individual actions for actual damages, attorney's fees and costs, and punitive damages up to $1,000,000; and (2) class actions for practitioners at the same facility or facilities under common management or ownership, with damages of the greater of $10,000 or actual damages per named plaintiff, the greatest of actual damages, $500,000 total, 1% of the facility's net worth, or 1% of the highest net worth owning entity's net worth (if applicable) for other class members, and attorney's fees and costs. It sets a 3-year statute of limitations from the last alleged retaliatory action and requires, prior to suit, filing complaints with the relevant state licensing authority (and the Joint Commission for hospitals), followed by waiting for investigation completion or 180 days.

This section prohibits the use of a health care practitioner's communications about patient safety concerns to draw adverse inferences about the quality of health care services provided by that practitioner in any civil or criminal professional liability action against the practitioner or a health care facility. This protection applies only to communications made prior to the filing of the action.

This section requires Medicare providers of services (i.e., hospitals, skilled nursing facilities, home health agencies, and similar entities) to establish (1) a mechanism allowing health care providers or practitioners to anonymously report patient safety concerns and (2) a process for investigating and addressing such reported concerns, effective one year after enactment.

This section provides that nothing in this Act, including its amendments, limits or supersedes protections for health care providers reporting patient safety events under part C of title IX of the Public Health Service Act (i.e., Patient Safety and Quality Improvement Act, which establishes confidentiality protections for patient safety work product) or other federal or state patient safety reporting laws.