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HOUSE BILL 337
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Pamelya Herndon
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
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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;
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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
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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
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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,
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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
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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
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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
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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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