Sec. 6. Whistleblower and resident protections
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Section 1819 of the Social Security Act ( 42 U.S.C. 1395i–3 ) is amended by adding at the end the following new subsection: All nurses employed by a skilled nursing facility have a duty and right to act based on their professional judgment in accordance with the nursing laws and regulations of the State in which such facility is located, to provide nursing care in the exclusive interests of the residents of the facility, and to act as the residents’ advocate. A nurse may object to, or refuse to participate in, any activity, policy, practice, assignment, or task (referred to in this subsection as a work assignment ) if— the nurse reasonably believes such work assignment to be in violation of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C); or the nurse reasonably believes that the nurse is not prepared by education, training, or experience to perform or comply with such work assignment without compromising the safety of a resident or jeopardizing the license of the nurse. No skilled nursing facility may discharge, retaliate, discriminate, or otherwise take adverse action in any manner with respect to any aspect of a nurse’s employment with the facility, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, based on the nurse’s objection to, or refusal of, a work assignment under paragraph (2). No skilled nursing facility may file a complaint or a report against a nurse with a State professional disciplinary agency because of the nurse’s objection to, or refusal of, a work assignment under paragraph (2). Any nurse (or a collective bargaining representative or legal representative of such nurse) against whom a skilled nursing facility has taken an adverse action in violation of paragraph (3)(A), or against whom such facility has filed a complaint or report in violation of paragraph (3)(B), may (without regard to whether a complaint has been filed under paragraph
(5)or (10)(B)) bring a cause of action in an appropriate district court of the United States. The legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall be controlling for the purposes of any cause of action brought under this paragraph. A nurse who prevails on the cause of action may be entitled to one or more of the following: Reinstatement. Reimbursement of lost wages, compensation, and benefits. Attorneys’ fees. Court costs. Other damages. Any individual may file a complaint with the Secretary against a skilled nursing facility that violates a requirement described in paragraph (3). For any complaint filed, the Secretary shall— receive and investigate the complaint; determine whether a violation of such paragraph, as alleged in the complaint, has occurred; and in the case that the Secretary determines that such a violation has occurred, issue an order that the complaining individual may not suffer any adverse action prohibited by paragraph
(3)or (7). The Secretary shall provide for the establishment of a toll-free telephone hotline to provide information regarding the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C) and to receive reports of violations of such requirements. A skilled nursing facility shall provide each resident admitted to the facility with the telephone number of the hotline described in subparagraph
(A)and give notice to each such resident that such hotline may be used to report inadequate staffing. A skilled nursing facility may not retaliate or discriminate in any manner against any resident, employee, or contract employee of the facility, or any other individual, on the basis that such resident, employee, contract employee, or individual (individually or in conjunction with another individual) has, in good faith— presented a grievance or complaint; initiated or cooperated in any investigation or proceeding of any governmental entity, regulatory agency, or private accreditation body; made a civil claim or demand; or filed an action relating to the care, services, or conditions of the facility. For purposes of this paragraph, an individual shall be deemed to be acting in good faith if the individual reasonably believes— the information reported or disclosed is true; and a violation of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C) has occurred or may occur. A skilled nursing facility may not— interfere with, restrain, or deny the exercise, or attempt to exercise, by any individual of any right, procedure, or remedy provided or protected under this subsection; or coerce or intimidate any individual regarding the exercise, or attempt to exercise, such right. A skilled nursing facility may not retaliate or discriminate against any individual for opposing any policy, practice, or action of the facility which is alleged to violate, breach, or fail to comply with any provision of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C). A skilled nursing facility may not make, adopt, or enforce any rule, regulation, policy, or practice which in any manner directly or indirectly prohibits, impedes, or discourages a nurse from, or intimidates, coerces, or induces a nurse regarding, engaging in free speech activities or disclosing information as provided under this subsection. A skilled nursing facility may not in any way interfere with the rights of nurses to organize, bargain collectively, and engage in concerted activity under section 7 of the National Labor Relations Act ( 29 U.S.C. 157 ). A skilled nursing facility shall post in an appropriate location in each unit a conspicuous notice, in a form specified by the Secretary, that— explains the rights of nurses, residents, and other individuals under this subsection; includes a statement that a nurse, resident, or other individual may file a complaint with the Secretary against the facility for a violation of a requirement or a prohibition of this subsection; and provides instructions on how to file such a complaint. The Secretary shall enforce the requirements and prohibitions of this subsection in accordance with this paragraph. The Secretary shall establish procedures under which— any individual may file a complaint alleging that a skilled nursing facility has violated a requirement or a prohibition of this subsection; and any such complaint shall be investigated by the Secretary. If the Secretary determines that a skilled nursing facility has violated a requirement or prohibition of this subsection, the Secretary— shall require the facility to establish a corrective action plan to prevent the recurrence of such violation; and may impose civil money penalties as described in subparagraph (D). In addition to any other penalties prescribed by law, the Secretary may impose civil penalties as follows: The Secretary may impose on a skilled nursing facility found to be in violation of this subsection a civil money penalty of— not more than $25,000 for the first knowing violation of this subsection by such facility; and not more than $50,000 for any subsequent knowing violation of this subsection by such facility. The Secretary may impose on an individual who— is employed by a skilled nursing facility; and is found by the Secretary to have knowingly violated this subsection on behalf of the facility, a civil money penalty of not more than $20,000 for each such violation by the individual. The provisions of section 1128A of the Social Security Act (other than subsections
(a)and (b)) shall apply with respect to a civil money penalty or proceeding under this subparagraph in the same manner as such provisions apply with respect to a civil money penalty or proceeding under such section 1128A. The Secretary shall publish on the internet website of the Department of Health and Human Services the names of skilled nursing facilities on which a civil money penalty has been imposed under this subsection, the violation for which such penalty was imposed, and such additional information as the Secretary determines appropriate. With respect to a skilled nursing facility that had a change of ownership, as determined by the Secretary, penalties imposed on the facility while under previous ownership shall no longer be published by the Secretary pursuant to clause
(i)after the 1-year period beginning on the date of such change of ownership. Funds collected by the Secretary pursuant to this subsection are authorized to be appropriated to implement the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C). In this subsection, the term nurse means a registered professional nurse, a licensed practical nurse, and a nurse aide. . Section 1919 of the Social Security Act ( 42 U.S.C. 1396r ) is amended by adding at the end the following new subsection: All nurses employed by a nursing facility have a duty and right to act based on their professional judgment in accordance with the nursing laws and regulations of the State in which such facility is located, to provide nursing care in the exclusive interests of the residents of the facility, and to act as the residents’ advocate. A nurse may object to, or refuse to participate in, any activity, policy, practice, assignment, or task (referred to in this subsection as a work assignment ) if— the nurse reasonably believes such work assignment to be in violation of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C); or the nurse reasonably believes that the nurse is not prepared by education, training, or experience to perform or comply with such work assignment without compromising the safety of a resident or jeopardizing the license of the nurse. No nursing facility may discharge, retaliate, discriminate, or otherwise take adverse action in any manner with respect to any aspect of a nurse’s employment with the facility, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, based on the nurse’s objection to, or refusal of, a work assignment under paragraph (2). No nursing facility may file a complaint or a report against a nurse with a State professional disciplinary agency because of the nurse’s objection to, or refusal of, a work assignment under paragraph (2). Any nurse (or a collective bargaining representative or legal representative of such nurse) against whom a nursing facility has taken an adverse action in violation of paragraph (3)(A), or against whom such facility has filed a complaint or report in violation of paragraph (3)(B), may (without regard to whether a complaint has been filed under paragraph
(5)or (10)(B)) bring a cause of action in an appropriate district court of the United States. The legal burdens of proof specified in section 1221(e) of title 5, United States Code, shall be controlling for the purposes of any cause of action brought under this paragraph. A nurse who prevails on the cause of action may be entitled to one or more of the following: Reinstatement. Reimbursement of lost wages, compensation, and benefits. Attorneys’ fees. Court costs. Other damages. Any individual may file a complaint with the Secretary against a nursing facility that violates a requirement described in paragraph (3). For any complaint filed, the Secretary shall— receive and investigate the complaint; determine whether a violation of such paragraph, as alleged in the complaint, has occurred; and in the case that the Secretary determines that such a violation has occurred, issue an order that the complaining individual may not suffer any adverse action prohibited by paragraph
(3)or (7). The Secretary shall provide for the establishment of a toll-free telephone hotline to provide information regarding the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C) and to receive reports of violations of such requirements. A nursing facility shall provide each resident admitted to the facility with the telephone number of the hotline described in subparagraph
(A)and give notice to each such resident that such hotline may be used to report inadequate staffing or care. A nursing facility may not retaliate or discriminate in any manner against any resident, employee, or contract employee of the facility, or any other individual, on the basis that such resident, employee, contract employee, or individual (individually or in conjunction with another individual) has, in good faith— presented a grievance or complaint; initiated or cooperated in any investigation or proceeding of any governmental entity, regulatory agency, or private accreditation body; made a civil claim or demand; or filed an action relating to the care, services, or conditions of the facility. For purposes of this paragraph, an individual shall be deemed to be acting in good faith if the individual reasonably believes— the information reported or disclosed is true; and a violation of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C) has occurred or may occur. A nursing facility may not— interfere with, restrain, or deny the exercise, or attempt to exercise, by any individual of any right, procedure, or remedy provided or protected under this subsection; or coerce or intimidate any individual regarding the exercise, or attempt to exercise, such right. A nursing facility may not retaliate or discriminate against any individual for opposing any policy, practice, or action of the facility which is alleged to violate, breach, or fail to comply with any provision of the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C). A nursing facility may not make, adopt, or enforce any rule, regulation, policy, or practice which in any manner directly or indirectly prohibits, impedes, or discourages a nurse from, or intimidates, coerces, or induces a nurse regarding, engaging in free speech activities or disclosing information as provided under this subsection. A nursing facility may not in any way interfere with the rights of nurses to organize, bargain collectively, and engage in concerted activity under section 7 of the National Labor Relations Act ( 29 U.S.C. 157 ). A nursing facility shall post in an appropriate location in each unit a conspicuous notice, in a form specified by the Secretary, that— explains the rights of nurses, residents, and other individuals under this subsection; includes a statement that a nurse, resident, or other individual may file a complaint with the Secretary against the facility for a violation of a requirement or a prohibition of this subsection; and provides instructions on how to file such a complaint. The Secretary shall enforce the requirements and prohibitions of this subsection in accordance with this paragraph. The Secretary shall establish procedures under which— any individual may file a complaint alleging that a nursing facility has violated a requirement or a prohibition of this subsection; and any such complaint shall be investigated by the Secretary. If the Secretary determines that a nursing facility has violated a requirement or prohibition of this subsection, the Secretary— shall require the facility to establish a corrective action plan to prevent the recurrence of such violation; and may impose civil money penalties as described in subparagraph (D). In addition to any other penalties prescribed by law, the Secretary may impose civil penalties as follows: The Secretary may impose on a nursing facility found to be in violation of this subsection a civil money penalty of— not more than $25,000 for the first knowing violation of this subsection by such facility; and not more than $50,000 for any subsequent knowing violation of this subsection by such facility. The Secretary may impose on an individual who— is employed by a nursing facility; and is found by the Secretary to have knowingly violated this subsection on behalf of the facility, a civil money penalty of not more than $20,000 for each such violation by the individual. The provisions of section 1128A of the Social Security Act (other than subsections
(a)and (b)) shall apply with respect to a civil money penalty or proceeding under this subparagraph in the same manner as such provisions apply with respect to a civil money penalty or proceeding under such section 1128A. The Secretary shall publish on the internet website of the Department of Health and Human Services the names of nursing facilities on which a civil money penalty has been imposed under this subsection, the violation for which such penalty was imposed, and such additional information as the Secretary determines appropriate. With respect to a nursing facility that had a change of ownership, as determined by the Secretary, penalties imposed on the facility while under previous ownership shall no longer be published by the Secretary pursuant to clause
(i)after the 1-year period beginning on the date of such change of ownership. Funds collected by the Secretary pursuant to this subsection are authorized to be appropriated to implement the minimum nurse staffing requirements of clause
(ii)of subsection (b)(4)(C). In this subsection, the term nurse means a registered professional nurse, a licensed practical nurse, and a nurse aide. . The amendments made by this section take effect on the date of enactment of this Act and shall apply with respect to objections to or refusals of work assignments, complaints, retaliations and other adverse actions, and interferences with rights that occur on or after the date that is one year after such date of enactment and with respect to notices provided on or after the date that is one year after such date of enactment.
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- 42 USC 1395i–3
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