Bill Text: CA AB858 | 2021-2022 | Regular Session | Enrolled

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Bill Title: Employment: health information technology: clinical practice guidelines: worker rights.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Vetoed) 2022-09-23 - Vetoed by Governor. [AB858 Detail]

Download: California-2021-AB858-Enrolled.html

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Enrolled  September 01, 2022

Passed  IN  Senate  August 29, 2022

Passed  IN  Assembly  August 30, 2022

Amended  IN  Senate  August 22, 2022

Amended  IN  Senate  July 15, 2021

Amended  IN  Senate  June 29, 2021

Amended  IN  Senate  June 21, 2021

Amended  IN  Assembly  May 24, 2021

Amended  IN  Assembly  April 29, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 858

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Introduced by Assembly Member Jones-Sawyer
(Principal coauthor: Assembly Member Carrillo)

February 17, 2021

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An act to add Article 2.7 (commencing with Section 2820) to Chapter 2 of Division 3 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL'S DIGEST

AB 858, Jones-Sawyer. Employment: health information technology: clinical practice guidelines: worker rights.

Existing law charges the Labor Commissioner with enforcement of various labor laws, including investigation of employee complaints. Existing law establishes the State Department of Public Health and sets forth its powers and duties relating to the licensure and regulation of health facilities, as defined. Existing law establishes the Department of Consumer Affairs and establishes various boards within its jurisdiction, including those charged with the licensure and regulation of practice in the various healing arts.

This bill would provide that the use of technology shall not limit a worker who is providing direct patient care from exercising independent clinical judgment in the assessment, evaluation, planning, and implementation of care, nor from acting as a patient advocate. The bill would define “technology” for these purposes to mean scientific hardware or software, including algorithms derived from the use of health care related data, used to achieve a medical or nursing care objective at a general acute care hospital.

This bill would authorize a worker who provides direct patient care at a general acute care hospital to override health information technology and clinical practice guidelines if, in their professional judgment and in accordance with their scope of practice, which includes receiving the approval of the patient’s physician or doctor of podiatric medicine, it is in the best interest of the patient to do so. The bill would require a general acute care hospital to notify all workers who provide direct patient care and, if subject to a collective bargaining agreement, their representatives, before implementing new information technology that materially affects the jobs of the workers or their patients.

This bill would prohibit a general acute care hospital employer from retaliating or otherwise discriminating against a worker providing direct patient care who requests to override health information technology and clinical practice guidelines or discusses these issues with other employees or supervisors. The bill would authorize a worker who is subject to retaliation or discrimination by a general acute care hospital employer to file a complaint with the Labor Commissioner against the general acute care hospital employer. The bill would limit the Labor Commissioner’s jurisdiction with regard to the complaint to retaliation or other discrimination against a worker for requesting to override, or discussing overriding, health information technology.

This bill would require a general acute care hospital to ensure that appropriate education or training be provided to workers providing direct patient care for purposes of educating or training those workers on how to utilize the new technology and to understand its limitations. The bill would require a general acute care hospital to allow workers providing direct patient care in the affected clinical areas to provide input in the implementation process for new technology impacting patient care delivery, as provided. The bill would authorize representatives of a general acute care hospital’s professional practice committee to recommend certain improvements and participate, when feasible, in the implementation processes, as specified. The bill would specify that its provisions do not allow the override of any physician orders.

Existing law, the Labor Code Private Attorneys General Act of 2004 (PAGA), authorizes an aggrieved employee to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees.

This bill would exempt violations of the above provisions from PAGA, unless otherwise agreed to by an employer and a labor organization in a collective bargaining agreement.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 (a) It is the intent of the Legislature that health information technology, clinical practice guidelines, or algorithms shall not limit the effective exercise of, or be a substitute for, the professional judgment of workers providing direct patient care. This is crucial to protect millions of patients’ safety in interacting with a deeply flawed medical technological system, that among many issues, has shown their commercial algorithms exhibit significant racial bias.

(b) It is also the intent of the Legislature that new technology will continue to permit the exercise of professional clinical judgment in providing patient care and patient advocacy by workers providing direct patient care. Clinical technology is intended to complement, not diminish, skills, judgment, and decisionmaking. Professional judgment, not algorithms, shall determine the care needed by patient populations or individuals.

SEC. 2.

 Article 2.7 (commencing with Section 2820) is added to Chapter 2 of Division 3 of the Labor Code, to read:

Article  2.7. Health Information Technology: General Acute Care Hospital Worker Rights

2820.

 (a) For purposes of this article, “technology” means scientific hardware or software including algorithms derived from the use of health care-related data, used to achieve a medical or nursing care objective at a general acute care hospital, as defined in Section 1250 of the Health and Safety Code.

(b) Notwithstanding any law, use of technology shall not limit a worker who is providing direct patient care from exercising independent clinical judgment in assessment, evaluation, planning, and implementation of care, nor from acting as a patient advocate.

(c) A worker who provides direct patient care at a general acute care hospital may override health information technology and clinical practice guidelines if, in their professional judgment, and in accordance with their scope of practice, which includes receiving the approval of the patient’s physician, or doctor of podiatric medicine, it is in the best interest of the patient to do so.

(d) A general acute care hospital employer shall not retaliate or otherwise discriminate against a worker providing direct patient care who requests to override, or who discusses with other employees or supervisors about overriding, health information technology and clinical practice guidelines. A worker who is subject to retaliation or discrimination by a general acute care hospital employer has the right under this article to file a complaint with the Labor Commissioner against the general acute care hospital employer. The Labor Commissioner’s jurisdiction with regard to the complaint is limited to retaliation or other discrimination against a worker for requesting to override, or discussing overriding, health information technology, and in no case is the Labor Commissioner authorized to adjudicate claims alleging that a worker suffered retaliation or other discrimination related to taking action to override such technology.

(e) A general acute care hospital shall notify all workers who provide direct patient care and, if subject to a collective bargaining agreement, their representatives prior to implementing new information technology that materially affects the job of the workers or their patients.

(f) (1) A general acute care hospital shall ensure that appropriate education or training is provided to its workers that provide direct patient care for purposes of educating or training those workers on how to utilize the new technology and to understand its limitations.

(2) The worker’s patient care assignment shall be taken into consideration when determining the appropriate method for training on new technology.

(g) (1) A general acute care hospital shall allow workers who provide direct patient care in the affected clinical areas to provide input in the implementation processes for new technology impacting patient care delivery.

(2) Representatives of a general acute care hospital’s professional practice committee may recommend measures to improve the delivery of safe, therapeutic, equitable, and effective care in conjunction with the use of new technology. Representatives of a general acute care hospital’s professional practice committee may participate, when feasible, in the implementation processes whenever new technology affecting the delivery of medical or nursing care is being considered.

(3) When sharing technology in the design, building, and validation process for new technology pursuant to this subdivision, a general acute care hospital shall protect patients’ private medical information in accordance with the federal Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), known as HIPAA, and all other applicable privacy laws.

(h) This section shall not be construed to limit a medical staff’s right to establish, in medical staff bylaws, rules, or regulations, clinical criteria and standards to oversee and manage quality assurance, utilization review, and other medical staff activities pursuant to existing law.

(i) This section is not intended to prevent hospitals from directing staff to follow nationally recognized quality improvement guidelines or standards of care, including, but not limited to, those used or endorsed by the National Committee for Quality Assurance, the National Quality Forum, the Physician Consortium for Performance Improvement, the Agency for Healthcare Research and Quality, or other organizations recognized or used by the federal Centers for Medicare and Medicaid Services or a department or agency of the State of California or any other commonly accepted standard or guideline for improving consumer health and patient outcomes, unless it is in the patient’s best interest to depart from these guidelines.

(j) This section does not allow the override of any physician orders.

(k) Unless otherwise agreed to by an employer and a labor organization in a collective bargaining agreement, the Labor Code Private Attorneys General Act of 2004 (Part 13 (commencing with Section 2698) of Division 2) shall not apply to violations of this section.