DARCI BURRESON HANCE, Complainant
STATE OF WISCONSIN DOC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the record which was before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
September 16, 2013
hanceda_rsd : 110 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant was employed by the Wisconsin Department of Corrections ("DOC") as a Nurse Clinician 2 (Registered Nurse) in the Health Services Unit of the DOC's Columbia Correctional Institution. She was discharged. She filed a complaint with the ERD alleging that she was discharged because she made numerous complaints within the institution regarding inmate care, and that her discharge was in violation of the Health Care Worker Protection Act ("HCWPA"). After an investigation, the ERD issued an initial determination finding that there was no probable cause to believe that DOC had violated the HCWPA as alleged. The complainant appealed.
Prior to any hearing being held, DOC filed a motion to dismiss the complaint on the grounds that it was not a "health care facility" under the HCWPA, and that the Warden of the Columbia Correctional Institution, who discharged the complainant, was not a "health care provider" under the HCWPA, and that therefore the ERD had no jurisdiction to hear the case. After considering briefs from the parties on the issue, an administrative law judge issued a Decision granting DOC's motion and dismissing the complaint on that basis. The complainant filed a petition for review by the commission.
The HCWPA provides, in Wis. Stat. § 146.997(3)(a), that
No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d). (1)
(emphasis added).
The terms "health care facility" and "health care provider" are defined in the HCWPA, in Wis. Stat. § 146.997(1). Because they are specifically defined in the Act, this case ultimately turns on the question of whether the DOC falls within either of those definitions.
"Health care facility" is defined as follows:
(c) "Health care facility" means a facility, as defined in s. 647.01 (4), (2) or any hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital, county mental health complex or other place licensed or approved by the department of health services under s. 49.70, 49.71, 49.72, 50.03, 50.35, 51.08 or 51.09 or a facility under s. 45.50, 51.05, 51.06, 233.40, 233.41, 233.42 or 252.10. (3)
"Health care provider" is defined as follows:
(d) "Health care provider" means any of the following:
1. A nurse licensed under ch. 441.
2. A chiropractor licensed under ch. 446.
3. A dentist licensed under ch. 447.
4. A physician, podiatrist, perfusionist, physical therapist, or physical therapist assistant licensed under ch. 448.
5. An occupational therapist, occupational therapy assistant, physician assistant or respiratory care practitioner certified under ch. 448.
6. A dietician certified under subch. V of ch. 448.
7. An optometrist licensed under ch. 449.
8. A pharmacist licensed under ch. 450.
9. An acupuncturist certified under ch. 451.
10. A psychologist licensed under ch. 455.
11. A social worker, marriage and family therapist or professional counselor certified under ch. 457.
12. A speech-language pathologist or audiologist licensed under subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.
13. A massage therapist or bodywork therapist licensed under ch. 460.
14. An emergency medical technician licensed under s. 256.15 (5) or a first responder.
15. A partnership of any providers specified under subds. 1. to 14.
16. A corporation or limited liability company of any providers specified under subds. 1. to 14. that provides health care services.
17. A cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility.
18. A hospice licensed under subch. IV of ch. 50.
19. A rural medical center, as defined in s. 50.50 (11).
20. A home health agency, as defined in s. 50.49 (1) (a).
The commission has previously addressed the manner in which these definitions are to be approached, in Jasmin v. County of Douglas, ERD Case No. CR200202481 (LIRC, Mar. 15, 2004) and Rademacher v. Allesee Orthodontic Appliances, ERD Case No. 201103804 (LIRC, Jun. 7, 2013).
In Jasmin, the commission affirmed an ALJ's ruling that the Douglas County Department of Human Resources was not a "health care facility" or a "health care provider" within the meaning of the HCWPA. The approach taken by the ALJ in Jasmin and effectively joined in by the commission, was that the statute's definitions were clear and unambiguous and did not include any type of social service agency such as Jasmin's employer, Douglas County Department of Human Services. The commission said:
The governing statutory language is unambiguous on its face, i.e., a person is required to be an employee of a health care facility or of a health care provider to qualify for the Act's protection; and the terms "health care facility" and "health care provider" include within their ambit only those persons or entities specified.
Because the definitions were clear, the commission rejected Jasmin's argument that the public policy goals of the HCWPA would be served by construing it as covering the type of employer named therein.
Rademacher involved a dental laboratory that constructed appliances or restorations according to prescriptions it received from treating dentists. The commission found that the laboratory was not covered as a health care provider or health care facility. It noted that the respondent in that case was clearly not a licensed dentist - and that in fact, the dentistry licensing statute expressly excepts such laboratories from the requirements of licensure. The laboratory simply did not fit within the statutory definitions. Relying on Jasmin, the commission held in Rademacher that
the list [comprising the definition of "health care provider"] is exclusive; the statute contains no language suggesting that the list is intended to encompass any entity not specifically listed.
The complainant argues that two other commission decisions, Lobacz v. Dept. of Corrections, ERD Case No. CR200500096 (LIRC, Nov. 3, 2005) and Welsh v. Dept. of Corrections, ERD Case No. CR200501949 (LIRC, Jan. 13, 2006), stand for the proposition that the DOC is covered under the HCWPA. The commission disagrees. As the ALJ noted in her decision, the question of whether the DOC was covered under the HCWPA was simply not addressed in either decision. Those decisions do not constitute holdings by the commission on that question.
Analyzing and applying the HCWPA definitions of "health care facility" and "health care provider" in the manner dictated by Jasmin and Rademacher, lead to the conclusion that they do not reach a DOC correctional institution medical unit.
The definition of "health care facility" has two parts. The first part is "a facility, as defined in s. 647.01 (4)." As noted above, that statute applies to places where services are provided under a continuing care contract. This clearly does not cover DOC medical facilities.
The second part of the definition of "health care facility" sets out a long list of institutions: hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital, county mental health complex or "other place."
Even if a DOC correctional institution medical unit could be considered to be within the common meaning of the word "hospital," or is simply considered an "other place," this ultimately does not matter. That is because, as the respondent notes, this part of the definition has another element: the institution mentioned must also be "licensed or approved by the department of health services," under one of a long string of statutes.
DOC persuasively asserts that its facilities are not licensed or approved by the Department of Health Services. This assertion is supported by an affidavit from James Greer, the Director of the Bureau of Health Services within DOC's Division of Correctional Programs, who asserts therein in part that the Wisconsin Department of Corrections is not licensed or approved by the Department of Health Services as a health care facility.
Significantly, in her reply brief the complainant conspicuously ignores this issue entirely, and shifts back to arguing that the respondent was a "health care provider." Thus, she effectively does not dispute that DHS has not "licensed or approved" any DOC facilities. This makes it untenable to find that DOC's health units are "health care facilities."
This leaves the alternative of finding DOC, or some part of it, to be a "health care provider." The definition of "health care provider" has 20 subdivisions. The first 14 are unmistakably individuals. The DOC correctional institution medical unit involved here cannot arguably be fit within any of them. It is also undisputed that the warden of the Columbia Correctional Institution, who made the decision to discharge, is not a licensed "health care provider" within any of these subdivisions. This leaves the six remaining subdivisions, which describe collective or institutional entities:
15. A partnership of any providers specified under subds. 1. to 14.
16. A corporation or limited liability company of any providers specified under subds. 1. to 14. that provides health care services.
17. A cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility.
18. A hospice licensed under subch. IV of ch. 50.
19. A rural medical center, as defined in s. 50.50 (11).
20. A home health agency, as defined in s. 50.49 (1) (a).
These too, however, are so specific that there is simply no way that a DOC correctional institution medical unit can be fit into any of them. Neither DOC, its correctional institutions, or their medical units, are partnerships, corporations or LLCs, cooperative associations, hospices, rural medical centers, or home health agencies.
The holdings of Jasmin and Rademacher 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 commission affirms the ALJ's decision.
cc:
Christopher M. Kloth, Attorney for Complainant
Deborah Rychlowski, Attorney for Respondent
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