Bill Text: PA HB521 | 2009-2010 | Regular Session | Introduced

---

Bill Title: Further providing for declaration of policy, for patient safety definitions, for powers and duties of the Patient Safety Authority and for powers and duties of the Department of Health; and providing for whistleblower protection.

Spectrum: Slight Partisan Bill (Democrat 20-8)

Status: (Introduced - Dead) 2009-02-19 - Referred to INSURANCE [HB521 Detail]

Download: Pennsylvania-2009-HB521-Introduced.html

---

PRINTER'S NO. 573
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 521 Session of2009
INTRODUCED BY DeLUCA, BARRAR, BRENNAN, CALTAGIRONE, D. COSTA, CREIGHTON, DONATUCCI, FRANKEL, GINGRICH, GOODMAN, HALUSKA, HENNESSEY, JOSEPHS, KORTZ, KOTIK, MELIO, MICOZZIE, MOUL, MUNDY, MURT, MYERS, PYLE, SIPTROTH, K. SMITH, SOLOBAY AND WHITE, FEBRUARY 19, 2009
REFERRED TO COMMITTEE ON INSURANCE, FEBRUARY 19, 2009
AN ACT
Amending the act of March 20, 2002 (P.L.154, No.13), entitled
"An act reforming the law on medical professional liability;
providing for patient safety and reporting; establishing the
Patient Safety Authority and the Patient Safety Trust Fund;
abrogating regulations; providing for medical professional
liability informed consent, damages, expert qualifications,
limitations of actions and medical records; establishing the
Interbranch Commission on Venue; providing for medical
professional liability insurance; establishing the Medical
Care Availability and Reduction of Error Fund; providing for
medical professional liability claims; establishing the Joint
Underwriting Association; regulating medical professional
liability insurance; providing for medical licensure
regulation; providing for administration; imposing penalties;
and making repeals," further providing for declaration of
policy, for patient safety definitions, for powers and duties
of the Patient Safety Authority and for powers and duties of
the Department of Health; and providing for whistleblower
protection.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 102 of the act of March 20, 2002 (P.L.
154, No.13), known as the Medical Care Availability and
Reduction of Error (Mcare) Act, is amended to read:
Section 102. Declaration of policy.
The General Assembly finds and declares as follows:
(1) It is the purpose of this act to ensure that medical
care is available in this Commonwealth through a
comprehensive and high-quality health care system.
(2) Access to a full spectrum of hospital services and
to highly trained physicians in all specialties must be
available across this Commonwealth.
(3) To maintain this system, medical professional
liability insurance has to be obtainable at an affordable and
reasonable cost in every geographic region of this
Commonwealth.
(4) A person who has sustained injury or death as a
result of medical negligence by a health care provider must
be afforded a prompt determination and fair compensation.
(5) Every effort must be made to reduce and eliminate
medical errors by identifying problems and implementing
solutions that promote patient safety.
(6) Recognition and furtherance of all of these elements
is essential to the public health, safety and welfare of all
the citizens of Pennsylvania.
(7) It is the purpose of this act to enhance patient
safety by establishing meaningful whistleblower protection
and a reporting system for medical errors which is responsive
to legitimate concerns.
Section 2. Section 302 of the act is amended by adding
definitions to read:
Section 302. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
20090HB0521PN0573 - 2 -
* * *
"Disciplinary action." An action against an individual which
has a negative impact on the individual in relation to salary or
terms of employment or professional affiliation. The term
includes discharge and loss or alteration of privileges of
affiliation.
* * *
"Health care facility." A facility licensed under the act of
July 19, 1979 (P.L.130, No.48), known as the Health Care
Facilities Act.
"Health care practitioner." An individual who is authorized
to practice some component of the healing arts by a license,
permit, certificate or registration, issued by a Commonwealth
licensing agency.
* * *
Section 3. Section 304(a) and (b) of the act are amended to
read:
Section 304. Powers and duties.
(a) General rule.--The authority shall do all of the
following:
(1) Adopt bylaws necessary to carry out the provisions
of this chapter.
(2) Employ staff as necessary to implement this chapter.
(3) Make, execute and deliver contracts and other
instruments.
(4) Apply for, solicit, receive, establish priorities
for, allocate, disburse, contract for, administer and spend
funds in the fund and other funds that are made available to
the authority from any source consistent with the purposes of
this chapter.
20090HB0521PN0573 - 3 -
(5) Contract with a for-profit or registered nonprofit
entity or entities, other than a health care provider, to do
the following:
(i) Collect, analyze and evaluate data regarding
reports of serious events and incidents, including the
identification of performance indicators and patterns in
frequency or severity at certain medical facilities or in
certain regions of this Commonwealth.
(ii) Transmit to the authority recommendations for
changes in health care practices and procedures which may
be instituted for the purpose of reducing the number and
severity of serious events and incidents.
(iii) Directly advise reporting medical facilities
of immediate changes that can be instituted to reduce
serious events and incidents.
(iv) Conduct reviews in accordance with subsection
(b).
(6) Receive and evaluate recommendations made by the
entity or entities contracted with in accordance with
paragraph (5) and [report] advise the department of those
recommendations [to the department, which shall have no more
than 30 days to approve or disapprove the recommendations].
(7) [After consultation and approval by the department,
issue] Issue recommendations to medical facilities on a
facility-specific or on a Statewide basis regarding changes,
trends and improvements in health care practices and
procedures for the purpose of reducing the number and
severity of serious events and incidents. Prior to issuing
recommendations, consideration shall be given to the
following factors that include expectation of improved
20090HB0521PN0573 - 4 -
quality care, implementation feasibility, other relevant
implementation practices and the cost impact to patients,
payors and medical facilities. Statewide recommendations
shall be issued to medical facilities on a continuing basis
and shall be published and posted on the department's
publicly accessible Internet website and the authority's
publicly accessible [World Wide Web site] Internet website.
(8) Meet with the department for purposes of
implementing this chapter.
(9) Upon receipt of a complaint under subsection (b), do
all of the following:
(i) Distribute copies of the complaint to each
director on the board.
(ii) Within ten business days, require the
department to investigate the complaint under section
306(a)(6).
(iii) Maintain the confidentiality of all
information resulting from the complaint and the
investigation. Information under this subparagraph may be
released only when sanctions are pursued under section
306(a)(7) or until section 316(d) is invoked by a health
care practitioner.
(10) Disseminate, through publications and training
sessions, information about patient safety reporting under
subsection (b)(2).
(b) [Anonymous reports] Reports to the authority.--
(1) A health care worker who has complied with section
308(a) may file an anonymous report regarding a serious event
with the authority. Upon receipt of the report, the authority
shall give notice to the affected medical facility that a
20090HB0521PN0573 - 5 -
report has been filed. [The authority shall conduct its own
review of the report unless the medical facility has already
commenced an investigation of the serious event.] The medical
facility [shall] may provide the authority with the results
of its investigation no later than 30 days after receiving
notice pursuant to this subsection. [If the authority is
dissatisfied with the adequacy of the investigation conducted
by the medical facility, the authority shall perform its own
review of the serious event and may refer a medical facility
and any involved licensee to the department for failure to
report pursuant to section 313(e) and (f).] This paragraph
shall not preclude a direct report to the authority under
paragraph (2).
(2) The authority shall maintain a Statewide
confidential, toll-free telephone line to enable health care
practitioners to report on patient safety and the quality of
patient care provided by a health care facility. If a health
care practitioner who files a complaint under this paragraph
requests anonymity, the authority shall, except to the extent
necessary to verify credentials, maintain anonymity.
* * *
Section 4. Section 306 of the act, amended May 1, 2006 (P.L.
103, No.30), is amended to read:
Section 306. Department responsibilities.
(a) General rule.--The department shall do all of the
following:
(1) Review and approve patient safety plans in
accordance with section 307.
(2) Receive reports of serious events and infrastructure
failures under section 313.
20090HB0521PN0573 - 6 -
(3) Investigate serious events and infrastructure
failures.
(4) In conjunction with the authority, analyze and
evaluate existing health care procedures and approve
recommendations issued by the authority pursuant to section
304(a)(6) and (7).
(5) Meet with the authority for purposes of implementing
this chapter.
(6) Upon referral of a complaint under section 304(a)
(9), do all of the following:
(i) Within ten business days, investigate the
complaint. In order to carry out the investigation under
this subparagraph, the department shall consult with one,
or, if the department deems necessary, a second,
independent, external quality review team to examine the
team's recommendations and findings. A team under this
subparagraph shall consider the appropriate use of
patient care standards in the situation under
investigation and make recommendations based upon its
findings. The following apply to a team under this
subparagraph:
(A) The team shall consist of at least all of
the following:
(I) A registered nurse who holds a license
under the act of May 22, 1951 (P.L.317, No.69),
known as The Professional Nursing Law; is engaged
in active practice for at least 20 hours per
week; and holds a specialty-specific
certification from the American Nurses
Credentialing Center.
20090HB0521PN0573 - 7 -
(II) A physician or an osteopath who is
engaged in active practice for at least 20 hours
per week and who is board-certified in a
specialty which is recognized by the American
Board of Medical Specialties or the American
Osteopathic Association and which is specific to
the situation under investigation.
(III) A pharmacist who is engaged in active
practice for at least 20 hours per week and who
is board-certified as a clinical pharmacist.
(B) A member of the team may not:
(I) be an employee or a contractor of the
health care facility or the health care
practitioner under investigation;
(II) be a past or current colleague of the
health care practitioner under investigation;
(III) have a past or current financial or
practice relationship with the health care
practitioner under review, that practitioner's
group, that practitioner's employer or that
practitioner's privilege-granting health care
facility;
(IV) have a past or current financial or
practice relationship with the health care
facility under investigation; or
(V) reside within 75 miles of the health
care facility under investigation.
(ii) If warranted by the investigation:
(A) Seek sanctions under paragraph (7).
(B) Recommend sanctions or other action to the
20090HB0521PN0573 - 8 -
appropriate licensing board under Chapter 9. A
licensing board or agency which receives a
recommendation under this clause shall report to the
authority concerning its action every 30 days until
the matter is finally disposed of. A report under
this clause shall be available to each director of
the board upon request.
(C) Recommend sanctions or other action to any
other appropriate Commonwealth agency.
(iii) Maintain the confidentiality of all
information resulting from the complaint and the
investigation until sanctions are sought under paragraph
(7) or until section 316(d) is invoked by a health care
practitioner.
(7) Impose an administrative penalty of up to $5,000
upon a health care facility for acts or omissions which
impair patient safety or the quality of patient care or, at
the department's discretion, take other remedial actions as
authorized by law. This paragraph is subject to 2 Pa.C.S. Ch.
5 Subch. A (relating to practice and procedure of
Commonwealth agencies) and Ch. 7 Subch. A (relating to
judicial review of Commonwealth agency action).
(b) Department consideration.--The recommendations made to
medical facilities pursuant to subsection (a)(4) may be
considered by the department for licensure purposes under the
act of July 19, 1979 (P.L.130, No.48), known as the Health Care
Facilities Act, and, in the case of abortion facilities, for
approval or revocation purposes pursuant to 28 Pa. Code § 29.43
(relating to facility approval), but shall not be considered
mandatory unless adopted by the department as regulations
20090HB0521PN0573 - 9 -
pursuant to the act of June 25, 1982 (P.L.633, No.181), known as
the Regulatory Review Act.
Section 5. The act is amended by adding a section to read:
Section 316. Whistleblower protection.
(a) Applicability.--This section applies to a health care
practitioner who does any of the following:
(1) Files a complaint under section 304(b).
(2) Makes a report to an agency which has jurisdiction
over patient safety, health care or the quality of patient
care provided by any health care facility or health care
professional.
(3) Makes a report to a health care facility on patient
safety or the quality of patient care provided by the health
care facility. This paragraph includes a report to any
employer, supervisor, coworker or other person with
privileges.
(b) Prohibition.--A health care facility that employs or
grants conditional or unconditional privileges to a health care
practitioner may not take disciplinary action against the health
care practitioner in retaliation for filing a complaint in good
faith or making a report in good faith under subsection (a).
(c) Immunity.--A health care practitioner who in good faith
files a complaint or makes a report under subsection (a) shall
be immune from civil liability arising from filing the complaint
or making the report.
(d) Remedy.--A health care practitioner who is aggrieved by
a violation of subsection (b) may recover damages proximately
caused by the violation, including pain and suffering; cost of
the litigation; and attorney fees. Notwithstanding any other
provision of law, in an action under this subsection, all
20090HB0521PN0573 - 10 -
patient records relating to the complaint under this subsection,
including peer review documents, shall be available to the court
and each party for possible use as documentary evidence.
(e) Deterring complaints and reports.--Any provision of a
contract or a professional affiliation arrangement, including a
document granting privileges, entered into with a health care
practitioner which limits the health care practitioner's ability
to file a complaint or make a report under subsection (a) or
which contains any threat, implicit or otherwise, or contains
any penalty for filing a complaint or making a report under
subsection (a) is against public policy and shall be void.
(f) Notification to health care practitioners.--Within 12
months of the effective date of this section, every Commonwealth
licensing agency that licenses, permits, certifies or registers
health care practitioners within this Commonwealth shall notify
the health care practitioners of the Statewide confidential,
toll-free telephone line and the whistleblower protection
provided through this act through already scheduled newsletters,
annual notices and other mailings.
Section 6. This act shall take effect in 90 days.
20090HB0521PN0573 - 11 -