HOUSE BILL 337

57th legislature - STATE OF NEW MEXICO - first session, 2025

INTRODUCED BY

Pamelya Herndon and Patricia Roybal Caballero

 

 

 

 

 

AN ACT

RELATING TO EMPLOYMENT; ENACTING THE HEALTH CARE WHISTLEBLOWER PROTECTION ACT; PROHIBITING HEALTH CARE ENTITY RETALIATORY ACTIONS IN CERTAIN CIRCUMSTANCES; CREATING A RIGHT TO CIVIL ACTION FOR DAMAGES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Health Care Whistleblower Protection Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Health Care Whistleblower Protection Act:

          A. "federally qualified health center" means a health facility that the United States department of health and human services has deemed to qualify for federal funds as a federally qualified health center;

          B. "good faith" means a reasonable basis exists in fact as evidenced by the facts available;

          C. "health care entity" means a person that provides or supports the provision of health care services to patients in New Mexico, including a hospital, a health care

provider, an in-state or out-of-state telemedicine provider, a health care staffing company, a health care provider organization, a health care facility, a management services organization or an organization of health care providers or facilities; provided that "health care entity" does not mean a federally qualified health center or an independent health care practice;

          D. "health care facility" means a hospital or other facility licensed by the health care authority to provide health care services in a health care setting, including inpatient facilities; health systems consisting of one or more health care entities that are jointly owned or managed; ambulatory surgery or treatment centers; residential treatment centers; diagnostic, laboratory and imaging centers; freestanding emergency facilities' outpatient clinics and rehabilitation facilities; hospice centers; long-term care facilities; and other therapeutic health settings; provided that "health care facility" does not include adult daycare facilities, freestanding birth centers, skilled nursing facilities, intermediate care facilities, boarding homes, child care facilities or shelter care homes;

          E. "health care provider" means a person certified, registered, licensed or otherwise authorized pursuant to state law to perform or provide health care services to individuals in the state;

          F. "health care services" means the care, prevention, diagnosis, treatment or relief of an illness, injury, disease or other medical, dental, mental or behavioral health or substance use disorder condition, including:

                (1) inpatient, outpatient, habilitative, rehabilitative, dental, palliative, home health, hospice or mental or behavioral health services provided by a health care entity; and

                (2) retail and specialty pharmacy, including provision of drugs;

          G. "health care staffing company" means a person engaged in the business of providing, procuring for employment or contracting health care personnel for a health care facility, but "health care staffing company" does not include an individual who independently provides the individual's own services to a health care facility as an employee or a contractor;

          H. "hospital" means a hospital licensed by the health care authority but does not include state-owned special hospitals operated by the department of health;

          I. "independent health care practice" means a health care provider organization entirely owned or controlled by one or more health care providers who are individuals and who provide health care services through the health care provider organization to patients in New Mexico;

          J. "long-term care facility" means a nursing home licensed by the health care authority to provide intermediate or skilled nursing care;

          K. "management services organization" means a person that contracts with a health care entity to perform or provide personnel to perform all or substantially all of the administrative or management services relating to supporting or facilitating the provision of health care services;

          L. "retaliatory action" means any discriminatory or adverse action taken by a health care entity against a whistleblower, including termination, discharge, demotion, suspension, compensation and fringe benefit losses, harassment and limitations on access to health care services that constitute a substantial and specific danger to patients, consumers or the public;

          M. "telemedicine provider" means a provider who uses telecommunications and information technology to provide clinical health care from a distance to evaluate, diagnose and treat patients in real time or asynchronously;

          N. "unlawful or improper act" means a practice, procedure, action or failure to act on the part a health care entity that:

                (1) violates a federal law or regulation, a state law or rule or a law of any political subdivision of the state;

                (2) is illegal, unsafe or fraudulent; or

                (3) constitutes:

                     (a) malfeasance;

                     (b) gross mismanagement;

                     (c) a waste of funds;

                     (d) a misrepresentation;

                     (e) an abuse of authority; or

                     (f) a substantial and specific danger to patients, consumers or the public; and

          O. "whistleblower" means:

                (1) a health care provider who reveals information about an unlawful or improper act by a health care entity;

                (2) a patient, including a patient's family member or guardian, who reveals information about an unlawful or improper act by a health care entity;

                (3) a volunteer who reveals information about an unlawful or improper act by a health care entity;

                (4) a consumer who reveals information about an unlawful or improper act by a health care entity; and

                (5) an officer, board member, employee, contractor, subcontractor or authorized agent of a health care entity who reveals information about an unlawful or improper act by a health care entity.

     SECTION 3. [NEW MATERIAL] CONFIDENTIALITY.--The identity of a whistleblower shall remain confidential unless the whistleblower consents in writing to the release of the whistleblower's identity.

     SECTION 4. [NEW MATERIAL] RETALIATORY ACTION PROHIBITED.--A health care entity shall not take retaliatory action against a whistleblower who:

          A. discloses to the state, the attorney general, the health care authority or any other federal, state or local government agency information about an action or a failure to act that the whistleblower believes in good faith constitutes an unlawful or improper act;

          B. provides information to or testifies before a public body as part of an investigation, a hearing or an inquiry into an alleged unlawful or improper act on the part of a health care entity; or

          C. objects to or refuses to participate in an activity, a policy or a practice that the whistleblower believes in good faith constitutes an unlawful or improper act.

     SECTION 5. [NEW MATERIAL] RIGHT TO CIVIL ACTION FOR DAMAGES--AFFIRMATIVE DEFENSES--REMEDY NOT EXCLUSIVE.--

          A. A health care entity that violates the provisions of the Health Care Whistleblower Protection Act shall be liable to a whistleblower who is an employee, a contractor, a subcontractor or an authorized agent of the health care entity for actual damages, reinstatement with the same seniority status that the whistleblower as described in this subsection would have had but for the violation, two times the amount of back pay with interest on the back pay and compensation for any special damage sustained as a result of the violation. In addition, the health care entity shall be required to pay the litigation costs and reasonable attorney fees of the whistleblower. A whistleblower may bring an action pursuant to this section in a court of competent jurisdiction.

          B. It shall be an affirmative defense to a civil action brought pursuant to this section that the action taken by a health care entity against a whistleblower was due to misconduct, poor job performance or other legitimate business purpose unrelated to conduct prohibited pursuant to the Health Care Whistleblower Protection Act and that retaliatory action was not a motivating factor.

          C. A whistleblower who is not an employee, a contractor, a subcontractor or an authorized agent of a health care entity and who, as a result of being a whistleblower, has been subjected to reprisal or retaliatory action may initiate a civil action in a court of competent jurisdiction to enjoin further violations, recover actual damages sustained by the whistleblower and recover the cost of the suit, including reasonable attorney fees. The court shall award reasonable attorney fees in favor of the health care entity if the civil action was initiated by a whistleblower who is not an employee, a contractor, a subcontractor or an authorized agent of a health care entity and the court finds that the health care entity has not engaged in the alleged reprisal or retaliatory action and the complaint was frivolous, unreasonable or groundless.  

          D. The remedies provided for in the Health Care Whistleblower Protection Act are not exclusive and shall be in addition to any other remedies provided for in any other statute or available pursuant to common law.

          E. The rights and remedies provided in this section shall not be waived by an agreement, a policy form or a condition of employment. Any employment agreement requiring arbitration shall not prevent any litigation pursuant to the Health Care Whistleblower Protection Act.

          F. Nothing in the Health Care Whistleblower Protection Act shall be deemed to diminish the rights, privileges or remedies pursuant to any federal or state law or pursuant to any collective bargaining agreement.

     SECTION 6. [NEW MATERIAL] POSTING OF LAW AND INFORMATION.--Every health care entity shall adopt and enforce a whistleblower protection policy that, at a minimum, meets the requirements of the Health Care Whistleblower Protection Act to protect health care whistleblowers from any form of retaliatory action by the health care entity. A notice of this policy shall be visibly posted in public areas at each health care entity's workplace, published on the health care entity's website and given, by either written or electronic communication, to every officer, employee, contractor or other agent of the health care entity. The notice shall be published in English and in Spanish and shall inform patients, residents, volunteers, employees and visitors that if they report in good faith acts that are unlawful or improper, they are protected against recriminations by the Health Care Whistleblower Protection Act.

     SECTION 7. [NEW MATERIAL] LIMITATION ON ACTIONS.--A civil action pursuant to the Health Care Whistleblower Protection Act shall be barred unless the action is filed within two years from the date on which the retaliatory action occurred. 

     SECTION 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2025.

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