Arizona’s “Ghost Laws”: Now You See Them…Now You Don’t

This is where the State of Arizona failed me and many other nurses: enacting a “shell” of a Bill to make our state look like its holding people accountable while protecting healthcare workers from retaliation. I tried using this law when Banner Health did what they did to me, and when the State Board of Nursing came after me on behalf of Banner Health. But, I was told that “I didn’t fit the definition of a whistleblower,” and that “my ‘situation’ wasn’t covered” According to who??? Who is in charge of saying I didn’t make a good faith report? Who is in charge of saying that a state law that clearly defines what happened to me as a situation that the State of Arizona should have protected me and scores of other nurses from doesn’t apply to select people?  Arizona Law was ignored and I lost my nursing license as a result. Its why I am continuously fighting for a new comprehensive updated Bill that has no perceived loopholes or ways for regulatory agencies to get involved in a matter that is strictly between an employee and an employer. Please browse through “The Bill” at your leisure:

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On September 18, 2003, Arizona’s Patient Safety Reporting and Nonretaliatory Policies Act became effective. This law, A.R.S. § 36-450, et seq., requires that “health care institutions” in Arizona adopt a procedure for reviewing reports made in good faith by “health professionals” concerning activities, policies, or practices that a health professional reasonably believes: (1) violate professional standards of practice or are against the law; and (2) pose a substantial risk to the health, safety, or welfare of a patient. The “procedure” adopted must include measures to keep the identity of the health professional providing the information confidential. Importantly, the statute also requires that each health care institution adopt a policy that prohibits retaliation against a health professional who in good faith makes such a report to a health care institution or who, having made the report and given the institution an opportunity to address it, provides further information to a private health care accreditation organization or governmental entity concerning the activity, policy, or practice that was the subject of the report. The Patient Safety Reporting and Nonretaliatory Policies Act received strong support from the Arizona Nurses Association (AzNA). According to AzNA, health care workers who report deficiencies in the industry, such as unsafe conditions for patients, frequently face increased scrutiny by their employers and are often fired or forced to resign. AzNA proposed the new law as a measure to increase employee retention in the health care industry and, more specifically, to address Arizona’s nursing shortage. At least ten other states have enacted similar laws to prevent health care institutions from taking retaliatory action against employees for reporting improper quality of patient care. What Health Care Institutions Must Comply With Act? A broad range of Arizona institutions in the health care industry are covered by the new statute, including every “place, institution, building or agency, whether organized for profit or not, which provides facilities with medical services, nursing services, health screening services, other health- related services, supervisory care services, personal care services or directed care services and includes home health agencies . . . and hospice service agencies.” Several institutions are exempt from coverage under the statute. Perhaps the most significant exemption relates to offices and clinics of certain licensed health care providers. Private offices and clinics of health care providers licensed under Title 32 (including, among many other health care providers, allopathic and osteopathic physicians) that are not free-standing urgent care centers are

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exempt from coverage unless the facility is an abortion clinic, the patients are kept overnight as bed patients, or the patients are put under general anesthesia (except where the general anesthesia is regulated by the Dental Board). Exemptions also exist for certain facilities that treat patients solely by prayer or spiritual means, establishments like hotels that provide domiciliary and ancillary commercial services but not medical or health-related services, dispensaries and first aid stations located within businesses or industrial establishments solely for employees (as long as they do not have in-patient beds and they are under the supervision of a physician), blood collection or distribution centers (as long as they are federally regulated), adult foster care homes, places where four or fewer adults not related to the administrator or owner receive day health services for compensation on a regular basis, places at which persons receive health-related services only from relatives or legal guardians, places that do not purport to be establishments that regularly provide health-related services and at which only one or two people receive such services on a 24-hour basis, the Arizona Pioneers’ Home, the personal residence of a terminally ill person, and the personal residence of that person’s relative or guardian where hospice services are received, all medical and health-related facilities for state prisoners and county inmates. Which Health Professionals Are Protected by the Act? “Health professionals” given the protection of the statute include the following Arizona licensees: podiatrists, chiropractors, dentists, allopathic physicians, naturopaths, professional nurses, dispensing opticians, optometrists, osteopathic physicians, pharmacists, physical therapists, psychologists, veterinarians, physician assistants, radiologic technologists, homeopathic physicians, behavioral health professionals, occupational therapists, respiratory therapists, acupuncturists, athletic trainers, massage therapists, midwives, and hearing aid dispenser, audiologists, and speech pathologists. Sublicensees, such as L.P.N.s and nursing assistants, are also protected from retaliation under the statute. So, What’s Different? The Employee Protection Act (“EPA”), adopted in 1996, provides protection for employees from retaliatory discharges. The EPA provides protection if the employer has terminated an employee in retaliation for disclosing that the employer has violated, is violating, or will violate the constitution or statutes of Arizona. The Patient Safety Reporting and Nonretaliatory Policies Act provides more extensive protection for health professionals than that provided by the EPA. The protections of the anti-retaliation provisions of the statute encompass both employees and non-employees of health care institutions. For example, staff physicians who are not employed by the hospital are protected from retaliation. Additionally, the new Act protects health professionals from retaliation in the form of any adverse employment action, while the EPA only protects employees from retaliatory discharges. Perhaps most significantly, the new Act extends protection to employees who report violations of professional standards that may not rise to the level of violations of state law. A.R.S. § 36-450.02(C) provides that, except as provided in A.R.S. § 23-1501(3)(a), (c), and (d) of the EPA, the requirements of the Patient Safety Reporting and Non-Retaliatory Practices Policies Act shall only be enforced through the provisions of the statute itself. The “whistleblower” provisions of the statute are also remarkable. The statute provides that there is a rebuttable presumption that any termination or adverse action that occurs more than 180 days after the date of a report made under this statute is not retaliatory. A termination that occurs within the 180-day period does not get the benefit of any such presumption.

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What do you need to do? If you are a covered health care institution, you need to adopt policies and procedures that comply with the Act. At a minimum, you need to set up a system for reviewing and dealing with a health professional’s good faith complaints about practices or policies posing a substantial risk to a patient, you need to protect the identity of the health professional who complained, and you need to prohibit retaliation against that health professional.
For

2003 SESSION FIRST REGULAR SESSION
SESSION LAWS 174….SB1178/BILL OVERVIEW/ NAME OF COMMITTEE-

36-450. Definitions
In this article, unless the context otherwise requires:
1. “Health professional” has the same meaning prescribed in section 32-3201.
2. “Professional standards of practice” means practicing within the scope of licensure.
3. “Retaliatory action” means termination of or other adverse action against a health professional’s employment taken by a health care institution because the professional has made a report pursuant to this article.
36-450.01. Reporting procedures
A. Each health care institution licensed pursuant to this chapter shall adopt a procedure for reviewing reports made in good faith by a health professional concerning an activity, policy or practice that the health professional reasonably believes both:
1. Violates professional standards of practice or is against the law.
2. Poses a substantial risk to the health, safety or welfare of a patient.
B. The procedure shall include reasonable measures to maintain the confidentiality of the identity of a health professional providing information to a health care institution pursuant to this section.

36-450.02. Nonretaliatory policy
A. Each health– care institution licensed pursuant to this chapter shall adopt a policy that prohibits retaliatory action against a health professional who in good faith:
1. Makes a report to the health care institution pursuant to the requirements of section 36-450.01.
2. Having provided the health care institution a reasonable opportunity to address the report, provides information to a private health care accreditation organization or governmental entity concerning the activity, policy or practice that was the subject of the report.
B. This section does not prohibit a health care institution licensed pursuant to this chapter from taking action against a health professional for a purpose not related to a report filed pursuant to section 36-450.01.
C. Except as provided in section 23-1501, subsection A, paragraph 3, subdivisions (a) and (c), this section shall only be enforced through the provisions of this chapter.
D. There shall be a rebuttable presumption that any termination or other adverse action that occurs more than one hundred eighty days after the date of a report made pursuant to either subsection A, paragraph 1 or 2 of this section is not a retaliatory action.

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Banner: If all your nurses are in HERE, who is out THERE watching the 36 beds???

Banner: If all your nurses are in HERE, who is out THERE watching the 36 beds???

 

Most of the nation already knows our state is notorious for some of the shenanigans that have taken place here when it comes to what laws get enacted and which ones do not. We make the late night TV circuit all the time so often that its just a routine thing now.  This is just another example of an ongoing problem in the legislature and with the enforcement of the ARS. Arizona likes to create laws they have no intention of actually enforcing. The legislature would rather have taxpayers supporting healthcare workers who are fired collect welfare checks, food stamps, and Medicaid benefits — because it is the tax payers who support out of work nurses live, breathe, eat, and get healthcare—as well as their families as a result of being wrongly retaliated against for protecting their patients. The law didn’t work then, it didn’t work for me in 2011 when Dr. Keng Yu Chuang forever changed me and my family’s lives and my career, and it wont work now for any other nurse who doesn’t feel they can come forward to be that important crucial barrier between medical  mistakes and the patient….the barrier between life or death, or from being physically maimed/injured for life. Right now nurses do not speak up any longer in this state after seeing this law failed to protect me when I blew the whistle on Banner Del Webb stripping a patient of their rights at the end of life and their right to know information about their plan of care, their medications, their lab test results, and how to care for themselves and their specific illness, as well as their care options aside from being stuck in a hospital bed.

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My patient has long since passed away, but I still fight for the rights that were stolen from them that morning when Dr. Chuang had all hospital approved patient education stripped from the room (its in the investigative report) and per a unit secretary’s statement to me his sizeable tantrum in the middle of a nursing station where  patients and other nurses and doctors could hear him. This is called disruptive physician behavior and it is recorded in the investigative report via the patient themselves when they were quoted as saying the doctor was angry and upset when he came into their room and took the education away. In many states across the country disruptive physician behavior is absolutely illegal because it places patients in danger and keeps healthcare providers from being able to carry out their duty to care in a non retaliatory ethically sound care environment. I have twice filed complaints with the Medical Board and twice now they have let the physician go without any kind of reprimand. This is the culture of healthcare in Arizona.

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Is it personal? Two of my colleagues took their lives. It will always be personal... Until a law is passed so no more nurses or patients

lose their lives for terrible preventable reasons..

If you as healthcare consumers think you truly have a voice at your most vulnerable moments youre dead wrong. Remember, healthcare is a BUSINESS FIRST. A business requires REVENUE.  And if you think that your nurse can readily stand up for you and raise the flag of danger to protect you without them losing their jobs, careers, and  their lives (two GOOD nurses have taken their lives within the past two years after they were dragged before the AZBON and their careers were ruined and they and their families lost everything) you would be wrong there too. Two families lost a wife and a mother and a daughter the day each of these nurses lost their lives from OVERWHELMING despair they couldn’t escape. Being a nurse, for some of us, is tied to our identities…..and when you can’t nurse, and do what you love and are passionate about and what makes you who you are….. well, its a devastating thing for some of the nurses going through it every day—myself included.

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I made a vow to make sure that no more nurses are harmed in the line of caring. I don’t want to lose anymore colleagues to PTSD and suicide… and I don’t want anymore patients dying needlessly when a nurse could have stepped forward to speak up on behalf of their patient. Which could be any of you out there. Arizona needs comprehensive coverage, and we need it urgently. Every day 1,000 people die in the United States of unreported medical errors. This equates to approximately 440,000 people yearly making medical errors the third leading cause of death among ALL PEOPLE in the U.S. EACH YEAR.

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You have the power to stop that. To reduce the number. To support nurses in their efforts to protect you.

 When nurses here saw that “the law” did not protect me and that my patient’s hospital approved education was taken from them they began to realize that the corporations have taken over our profession and our ability to practice to the fullest extent of our licensure and education. Why? Because Corporate Healthcare, Drive through healthcare, has redefined the role of the nurse in such a way that now a nurse must now consider his/her license, paycheck, career and future when considering the daunting task of coming forward to protect a patient who is in imminent danger or subject to unethical practices in the healthcare setting.

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I’ve said this before—I feel that if you have to stop and think even for a second about protecting the life who is lying in the bed in front of you or protecting yourself before the patient…..then there is no reason to have an RN after your name. Sadly there are two kinds of nurses out there these days, the nurses who have the inner calling and those who are flooding the market for the better salary and the fact that healthcare is a booming business with lucrative earning potential and a secure future…….

IF you play along like good little girls and boys and follow the corporate rules, regardless of the lives at risk.

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