Hausman v. St. Croix Care Center: Stretching the Employment-At-Will Doctrine

Statutory Changes to Protect Reporters of Elder Abuse

by William Donaldson

The Board on Aging and Long Term Care (BOALTC), a state-created entity to assist elderly and disabled residents of long-term care facilities, depends upon reports made to its ombudsmen to carry out its mission of protecting these vulnerable persons. The board's Long-Term Care Ombudsman Program, created by section 16.009(4)(a) of the Wisconsin Statutes, was mandated to carry out the requirements of the federal Older Americans Act, codified at 42 U.S.C. section 3058g.

Prior to Hausman, there were two sections of the Wisconsin Statutes that provided explicit protection for "whistle-blowers" seeking the assistance of the state in asserting the rights of vulnerable residents or patients of health care providers. The Wisconsin Elder Abuse Protection statute, section 46.90 of the Wisconsin Statutes, provided that no employer could discharge or otherwise discriminate against a person in retaliation for that person's making a good faith report of suspected abuse, neglect, or mistreatment of an elderly person to a designated county agency. This statute protected any reporter of abuse, whether or not the alleged victim was a resident or patient of a facility. It offered no protection, however, for those making reports to any entity other than the county agency (such as the ombudsman or the state Department of Health and Family Services.)

Slightly more protection was offered by Wisconsin Statutes section 50.07(1)(e), which prohibited retaliation against any resident or employee who contacted, provided information to, or cooperated with "any state official" in the context of an investigation into or judicial action arising from alleged violations of the laws, rules, and regulations governing the operation of any facility governed by the Department of Health and Family Services (DHFS). The DHFS governs more than 40 types of facilities, including nursing homes, community-based residential facilities, sheltered workshops, all types of residential facilities, and the like. The problem with section 50.07(1)(e) was that no private remedy was provided for the victim of retaliation, only criminal sanctions against the offending facility.

The BOALTC had long maintained that reporting to its ombudsman was a protected activity, since the federal Older Americans Act requires such protection be assured by the states, and Wis. Stat. sections 46.90 and 50.07 appeared to do so. As well, the provisions of Wis. Stat. section 16.009 included a specific mandate that the ombudsman must "carry out the requirements of" the federal statute. The ombudsman staff therefore assured clients and complainants that their reporting could not subject them or the person about whom the report was made to any retaliatory conduct. Without the assurance that confidences are secure, and that retaliation will not result from filing a report, the ombudsman program's reporting sources would quickly evaporate.

Aware of several instances of retaliatory conduct for reporting mistreatment, including the administrative decision that Hausman and Wright were not protected by Wis. Stat. section 46.90 for reporting to the ombudsman, the BOALTC and other elder advocacy groups worked with Rep. Tammy Baldwin for the passage of 1997 Wis. Act 131. This act, passed in April 1998, added language to sections 46.90(4) and 50.07(1)(e), and created sections 50.07(1)(em), 50.07(3), and 16.009(5) of the Wisconsin Statutes. The new laws explicitly grant protection of the state, through the Department of Workforce Development (formerly DILHR) and the Personnel Commission, to employees who report problems to state officials, including the long-term care ombudsman. Wisconsin Statutes sections 106.06(5) and 230.45(1)(j) also were amended to provide jurisdiction to the Department of Workforce Development and the Personnel Commission, respectively. Employees who report to any state official now have a private cause of action for retaliation, which is administered in the same manner as other employment discrimination cases.

Newly created section 50.07(3)(c) of the Wisconsin Statutes grants to nonemployee reporters such as pool certified nurse assistants, nurses, and other "temps," family members, friends, or the resident him or herself the right to seek redress in circuit court for damages incurred as a result of retaliatory conduct. With the passage of Wis. Act 131, all of these individuals who strive to protect the rights of the elderly and infirm are afforded protection in situations where dealing directly with the care providers does not resolve the problem, and further action to achieve a satisfactory result must be taken.

William Donaldson, Marquette 1993, is counsel to the Wisconsin Board on Aging and Long Term Care. He provides legal advice and research on complex care and treatment, resident rights, and administrative issues for the agency's executive director, the long-term care ombudsman, Medigap Helpline programs, and for the citizen board that oversees the agency's operations.

Wisconsin Lawyer