544 HEALTH CARE WORKER PROTECTION (HCWPA) (Sec. 146.997, Stats.)

[Ed. Note: Pursuant to sec. 146.997, Stats., no health care facility or provider may discipline a person for making certain types of reports relating to health care and health care facilities and providers. Any employee of a health care facility or provider who is threatened with or subjected to disciplinary action in violation of this provision may file a complaint with the Equal Rights Division under sec. 106.57(6), Stats. Such complaints are processed in the same manner that employment discrimination complaints are processed under the Wisconsin Fair Employment Act. Decisions of the Equal Rights Division under this law are appealable to LIRC.]

The HCWPA only prohibits discharging an employee because she has filed a complaint or because the employer believes she has done so, not because the employer believes she may do so in the future. In this case, the Complainant did not actually file a complaint and the evidence does not support a conclusion that the Respondent believed she had done so. Uphill v. Sun Valley Homes II, LLC (LIRC, 01/31/22).

The fact that the Milwaukee School of Engineering is a corporation that employs some health care providers does not make the School itself a health care provider under sec. 146.997(1)(d)(16). The statutory term corporation of health care providers refers to a corporation that is either principally composed of individual health care providers under subdivisions 1 through 14 of sec. 146.997(1)(d), or is owned or controlled by such individual health care providers. Suhr v. Milwaukee Sch. of Eng'g (LIRC, 01/30/20).

The Complainant reported a concern to her supervisor that allowing staff to do charting of patients outside the charting room was a violation of the Health Insurance Portability and Accountability WFEA of 1996 (HIPAA). This may have qualified as a report of information under the HCWPA, but there was no violation of the WFEA because there was no evidence that the report motivated the Respondent’s decision to discharge the Complainant. Gruss v. County of Dane (LIRC, 08/13/19).

The Respondent, a non-medical home-care business, is not a health care facility under the HCWPA. The Respondent provides services to those who need assistance with basic tasks such as bathing, bathroom assistance, light housekeeping and food preparation, and its operations are not licensed or approved by the Department of Health Services. It also is not subject to the HCWPA as a home health agency as defined in sec. 50.49(1)(a), Wis. Stats., because its services do not constitute skilled nursing or therapeutic services, it does not have policies established by a professional group including at least one physician and at least one registered nurse, it does not provide for supervision of services by a physician or registered nurse, and it does not maintain clinical records on its clients. Kuzmanovic v. Petra Living Assistance, LLC (LIRC, 08/22/18), aff'd Kuzmanovic v. LIRC (Waukesha Co. Cir. Ct. 03/17/2019).

Between 2006 and 2012, the Complainant reported the occurrence of approximately 15-20 medication errors per year made by nurses using the Med-Dispense machines and requested that a computer interface be purchased for the Med-Dispense machines. Accordingly, the Complainant, in good faith, reported violations of clinical standards which affected the quality of health care services provided and posed a potential risk to the health and safety of its patients and her conduct was protected by the HCWRA. However, there was no retaliation under this Act where the Respondent gave the Complainant good performance evaluations and annual salary increases during the six years that she was making reports about the medication errors and the computer interface. Narut v. Lakeview NeuroRehab Ctr. Midwest, Inc. (LIRC, 08/31/16) (unavailable online), aff'd Narut v. LIRC (Kenosha Co. Cir. Ct, 07/10/2017).

The Respondent did not violate the HCWPA when the Complainant's own testimony indicated that she had not been subject to any adverse employment actions for making alleged complaints. Volkmann v. Colonial Management Group, LP (LIRC, 01/30/15).

The Complainant alleged that two employees of Tellurian, a health care facility, violated HIPPA when, at Tellurian, they disclosed confidential health information about inmates of a DOC facility. The Complainant reported this violation to the DOC and was subsequently discharged by the Respondent for making that report. The commission determined that the Complainant's allegations stated a cause of action under the HCWPA, despite the fact that the report was made to the DOC and the confidential information that the two employees were alleged to have disclosed did not concern patients of the Respondent and, instead, concerned individuals who were inmates at a correctional facility run by the DOC. While the main application of the HCWPA is to protect employees who report problems with their employer's own provision of health care, the law contains open ended language in its description of the potential recipients of reporting which includes any state agency. Ransom v. Tellurian Ucan, Inc. (LIRC, 09/26/14).

It is unlawful under the HCWPA to terminate the employment of a doctor because he complained about another doctor’s practices. The fact that the doctor being complained of was no longer employed by the Respondent at the time did not put the claim outside of the coverage of the HCWPA. Siegel v. Marshfield Clinic (LIRC, 10/31/13).

The fact that the Complainant expressed unhappiness with his job and talked about quitting did not provide the Respondent with a nondiscriminatory justification to discharge him. The Respondent had no intention of terminating the employment relationship until after the Complainant engaged in protected conduct. Further, the Complainant’s frustrations with his employment were related in part to the Respondent’s negative reaction to his protected conduct. Siegel v. Marshfield Clinic (LIRC, 10/31/13).

The Health Services Unit of the Wisconsin Department of Corrections’ Columbia Correctional Institution was not a "health care facility" under the Health Care Workers Protection Act (HCWPA), and that the Warden of the Columbia Correctional Institution, who discharged the Complainant, was not a "health care provider" under the HCWPA. Previous LIRC holdings indicate that a literal reading of the relevant definitions is called for. Giving them such a literal reading, it is clear that the DOC is not covered by the HCWPA. For these reasons, the complaint arising from the Complainant’s discharge from her position as a nurse was properly dismissed. Hance v. DOC (LIRC, 09/16/13).

The Respondent was not covered by the HCWPA. Although licensed dentists are subject to the HCWPA, the Respondent was a dental laboratory, was not a licensed dentist, and was specifically exempted from being a licensed dentist. The HCWPA unambiguously defines the terms "health care facility" and "health care provider" and it would be improper to attempt to construe the terms to encompass entities that are not specifically mentioned in the HCWPA. Rademacher v. Allesee Orthodontic Appliances, Inc. (LIRC, 06/07/13).

The Health Care Worker Protection Act (HCWPA) protects only “employees,” notwithstanding the use of the word “persons” in portions of the statute. An unpaid intern who received no salary or other monetary compensation was not an “employee” for purposes of being protected under HCWPA. Although it may be possible to be considered an employee based upon “tangible benefits,” here the Complainant's benefits – an “all access” security badge for the Respondent's facilities, office space, support staff, and parking – were provided to enable the Complainant to perform her assigned duties and did not constitute a form of compensation. Masri v. Med. College of Wis. (LIRC, 08/31/11), aff’d, Masri v. LIRC & Med. College of Wis., 2013 WI App 62, 348 Wis. 2d 1, 832 N.W.2d 139; 2014 WI 81, 356 Wis. 2d 405, 850 N.W.2d 298.

The Complainant did not engage in any conduct that was protected under the Health Care Worker Protection Act. The Complainant worked as a respiratory therapist. He questioned the amount of medication which one of the Respondent’s doctors prescribed for a child. The Complainant informed his supervisor about the matter, and he added a note to the child’s chart indicating that the prescribed dosage was only recommended for patients six years and under. A notation on a patient’s chart does not constitute a report made to an officer, director or supervisor of the medical center as contemplated under the Health Care Worker Protection Act. Moreover, the Complainant did not indicate that he believed that any law or regulation had been violated in prescribing the medication, nor did not he suggest that the quality of health care services provided violated any legal or professional standard or posed a potential threat to public health or safety. At the hearing, the Complainant acknowledged that it was the doctor’s prerogative to order a higher dose of medication than recommended. Betts v. Bay Area Med. Ctr. (LIRC, 06/09/11).

The Health Care Worker Protection Act (“HCWPA”) applies to reports of any information that would lead a reasonable person to believe: (1) that the health care facility or any of its employees has violated any state law or rule or any federal law or regulation, or (2) that there exists a situation in which the quality of any health care service provided by the health care facility or by any of its employees violates any standard established by any state rule or law or any federal regulation and poses a potential risk to public health or safety. The HCWPA expressly provides that it covers reports made to a supervisor, as well as to reports to some outside agency. Cook v. Delphi Healthcare (LIRC, 02/10/11).

Section 146.997(3)(a), Stats., prohibits retaliation against a person because that person: (1) reported in good faith any information listed under sec. 146.997(2)(a), (2) in good faith initiated, participated in or testified in any action or proceeding under sec. 146.997(2)(c), or (3) in good faith provided information to a legislator under sec. 146.997(2)(d), Stats.; or because the health care facility, health care provider or employee believed that the person did any of those things. The Health Care Worker Protection Act does not protect employees against retaliation because the employer believes that the employee may engage in protected activity in the future. Dieterich v. Lindengrove (LIRC, 09/28/10).

In this case, the Complainant gave a report to a supervisory employee of a health care facility and she was disciplined in part for what she put in the report. Whether this was prohibited retaliatory discipline under the Health Care Worker Protection Act depended on whether the report was about the kinds of things described in secs. 146.997(2)(a)1. and 2, Stats. There was no violation of any state rule or law or federal law or regulation suggested in what the Complainant wrote. Nor did her report provide reason to believe that any health care service violated any applicable standard or posed a potential risk. Two separate reports that the Complainant submitted to a supervisor were both reports the making of which was protected conduct under the Health Care Worker Protection Act. However, the Complainant did not establish that she was disciplined “because” she made these protected reports. The Complainant was eventually discharged because the Respondent discovered that she had engaged in a serious failure to comply with required procedures concerning the report of an injury to a resident. Dieterich v. Lindengrove (LIRC, 09/28/10).

Unlike the anti-retaliation protection provided by sec. 111.322(2m)(d), Stats., which expressly protects employees from retaliation because the employer believes that they “may engage in,” (i.e., in the future) covered protected activity, the anti-retaliation protection provided by sec. 146.997(3), Stats., uses only the past tense. That provision expressly refers only to an employer’s beliefs that an employee “reported…, participated in or testified in…[or] provided” certain information or proceedings. Dieterich v. Lindengrove (LIRC, 12/29/08).

The Health Care Worker Protection Act prohibits employers from retaliating against an employee because the employer believes that the employee made a report of the kind protected under sec. 146.997(3), Stats. It is not necessary that such a report actually has been made if the employer is retaliating because of its belief that the report was made. In this case, there was evidence to suggest that managers of the Respondent believed that the Complainant had made a report to the Bureau of Quality Assurance concerning matters including an injury to a patient. Dieterich v. Lindengrove (LIRC, 12/29/08).

The Complainant was disciplined after she included information in a “quality assurance” report about a nursing assistant being ill and not paying attention, and about a patient sustaining an injury as a result. The Complainant was ultimately discharged. The Complainant’s inclusion of this information in the report was information that would lead a reasonable person to believe that there existed a situation in which the quality of the health care service provided by the health care facility violated standards established by state law, rule, or federal law or regulation or clinical or ethical standards established by a professionally recognized accrediting or standard-setting body, and that it posed a potential risk to public health or safety, within the meaning of sec. 146.997(2), Stats. Because this report was given to employees of the Respondent who were in a supervisory capacity, or in a position to take corrective action, its submission was protected conduct. The fact that the Complainant’s discharge followed so closely on the heels of her submission of this report, as well as direct evidence that its submission was a factor in her discharge, was sufficient to establish a prima facie case of retaliation under the Health Care Worker Protection Act. Dieterich v. Lindengrove (LIRC, 12/29/08).

Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state law or rule the Complainant believes has been violated in order to obtain protection under the Health Care Worker Protection Act (sec. 146.997, Stats.). Bruneau v. Olas House (LIRC, 10/19/08).

The Equal Rights Division does not have authority to receive or process complaints under secs. 146.997(5) or (6), Stats. These sections of the Health Care Worker Protection Act relate to penalties and forfeitures for failing to post notices. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The willingness of the administrator of a health care center to hear and address standard of care issues brought to her attention by staff members strongly suggested that she had no reason to harbor any retaliatory animus against the Complainant for bringing patient care issues to her attention. In this case, the administrator’s decision to remove the Complainant as the director of nursing was due to the Complainant’s poor interpersonal skills, and not because of her reporting alleged standard of care issues to the administrator. Brown v. Maple Lane Health Care Ctr. (LIRC, 06/20/08).

Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state or federal law or rule, or ethical or clinical standard, she believes has been violated in order to obtain protection under the Health Care Worker Protection Act. The information reported by the Complainant to her supervisor and to the clinic administrator in this case would lead a reasonable person to believe that a physician had violated a state law or rule and would constitute a protected HCWPA disclosure as a result. It is important to note that the relevant question is not whether the Complainant’s allegations were sufficient to establish that a law or rule had been violated but, rather, whether they were sufficient to provide a motive for the Respondent to retaliate. Matson v. Aurora Health Care (LIRC, 03/21/08).

The Complainant failed to establish a causal connection between her protected disclosures and her termination where the record did not establish who made the termination decision. In order to establish a causal connection, it must be shown that the individual who made the termination decision was aware of, or had reason to be aware of, the Complainant’s protected activity. Matson v. Aurora Health Care (LIRC, 03/21/08).

The Complainant filed a complaint against his former employer when he was subsequently not re-hired by that employer. His complaint under sec. 146.997, Stats., was dismissed. Sec. 146.997 prohibits taking “disciplinary action” as defined in sec. 230.80(2), Stats. This statute pertains only to employees, in spite of the reference in sec. 146.997(3), Stats., to the prohibition against a healthcare facility or healthcare provider taking “disciplinary action” against “any person,” and despite the fact that the forms of “disciplinary action” listed under sec. 230.80(2), Stats., is not an exhaustive list. The reason for this is that sec. 230.80(2), Stats., defines what the term “disciplinary action” means (i.e., any action taken with respect to an employee), and because all of the types of actions listed under that statute are actions that could only be taken against a current employee. It would be inappropriate to find that a failure to hire an individual comes within the meaning of a disciplinary action as defined under sec. 230.80(2), Stats. Ratsch v. Mem'l Med. Ctr. (LIRC, 03/10/06).

The 300-day filing period specified in sec. 111.39(1), Stats., is made applicable to charges filed under the Healthcare Worker Protection Act by operation of sec. 146.997(4)(a), Stats. This 300-day filing limit is not a jurisdictional prerequisite. It is a statute of limitations which is subject to waiver, estoppel, and equitable tolling. Welsh v. DOC (LIRC, 01/13/06).

It was inappropriate to dismiss a case for failure to state a claim for relief because the Complainant failed to identify a “state law or rule or federal law or regulation” within the meaning of sec. 146.997(2)(a)1., Stats., in his charge of retaliation. Neither the Health Care Worker Protection Act nor the pleading requirements of the Equal Rights Division require that a Complainant specifically identify which state law or rule he believes has been violated in order to obtain protection under the Act. In his various communications to management prior to his discharge, the Complainant stated that he believed that an alleged falsification of time cards constituted “fraud.” The Complainant’s description of the alleged time reporting irregularities, as well as his allusion to fraud (which is an act subject to both civil and criminal penalties), would lead a reasonable person to believe that an employee of the Respondent’s health care facility had violated a state rule or law within the meaning of sec. 146.997(2)(a)1., Stats. Lobacz v. DOC (LIRC, 11/03/05).

Sec. 146.997(2)(a)1., Stats., does not limit its application to violations of laws or rules relating to patient care or treatment. Lobacz v. DOC (LIRC, 11/03/05).

The Complainant identified sec. 946.12(4), Stats., as the specific state law he believed was violated when his supervisor and a co-worker falsified their time records. The Respondent argued that this statutory provision could not be relied upon to obtain a criminal conviction of a state employee engaging in falsification of a timecard because its language was not sufficiently definite. However, the question is not whether the allegations set forth in the employee’s report are sufficient to establish a violation of a specific state or federal statute or rule, but rather whether they were sufficient to provide a motive for the Respondent to retaliate. Lobacz v. DOC (LIRC, 11/03/05).

The Health Care Worker Protection Act protects from retaliation only those who are employees of a “health care facility” or of a “health care provider” as defined in secs. 146.997(1)(c) and (d), Stats. The Complainant’s employer, the Douglas County Department of Human Services, is not the type of person or entity specified in either of these definitions. Moreover, given the Act’s reference to “county home,” “county infirmary,” “county hospital,” and “county mental health complex,” it would have to be concluded that the Legislature intended to exclude from the Act’s coverage other county entities such as county human services departments. Jasmin v. County of Douglas (LIRC, 03/15/04).

The Health Care Worker Protection Act is limited to protecting employees to the extent that they make reports about things which they believe may result in inadequate care or mistreatment of patients. Here, the complaints which the Complainant made about a physician were in large part complaints about the way he treated staff at the hospital. To the extent that the Complainant’s reports were related to allegations having some connection to patient care, they were largely outside the scope of the Act because of who she made them to. The Act is limited to protecting employees who make reports about inadequate care or mismanagement of patients to: (1) a state agency, (2) a professionally recognized accrediting or standard-setting body, (3) an officer or director of the facility, or (4) an employee of the facility in a supervisory capacity, or in a position to take corrective action. (Sec. 146.997(2), Stats.) The Complainant complained to other employees of the Respondent who were not in either a supervisory capacity or in a position to take corrective action, and she made threats to go to the local newspaper with accusations against the physician. Accordingly, there was no probable cause to believe that the Respondent violated the Health Care Worker Protection Act when it discharged the Complainant. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

The Health Care Worker Protection Act protects employees only to the extent that their reports are made in good faith. Sec. 146.997(3), Stats. Some of the Complainant’s complaints about a physician in this case were false and misleading. They were motivated by a desire to see the hospital where the Complainant worked punished regardless of the truth of the allegations, and were not made in good faith. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

Where the Complainant filed a complaint under the Healthcare Worker Protection Act, sec. 146.997(3), Stats., it was inappropriate for the Equal Rights Division to issue an initial determination making a conclusion as to whether sec. 111.322(2m), Stats., had also been violated. The complaint was drafted and filed on the Complainant’s behalf by an attorney. Presumably, if the Complainant had intended to allege not only a violation of the Healthcare Worker Protection Act, but also a violation of sec. 111.322(2m), Stats., she would have done so. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).