Whistleblower protection; policy required; retaliation

prohibited; penalties. A. As used in this section: (1) "entity" means hospitals, management services organizations and health care provider organizations that are owned or affiliated with health insurers; (2) "good faith" means that a reasonable basis exists in fact as evidenced by the facts available; (3) "retaliatory action" means any discriminatory or adverse action taken by an entity against a whistleblower, including termination, discharge, demotion, suspension, harassment or limitation on access to health care services; (4) "unlawful or improper act" means a practice, procedure, action or failure to act on the part of an entity that violates the Health Care Consolidation Oversight Act or the authority's or attorney general's ability to exercise authority pursuant to that act; and (5) "whistleblower" means a health care provider, officer, employee, contractor, subcontractor or authorized agent of an entity who reveals information about an unlawful or improper act by the entity. B. An entity shall not take any retaliatory action against a whistleblower who: (1) discloses to the authority, the attorney general, the office or any other state, local or federal governmental body information about an action or a failure to act that the whistleblower believes in good faith constitutes an unlawful or improper act; (2) provides information to or testifies before a public body as part of an investigation, hearing or inquiry into an unlawful or improper act; or (3) objects to or refuses to participate in an activity, policy or practice that the whistleblower believes in good faith constitutes an unlawful or improper act. C. Every entity shall adopt, promulgate and enforce a whistleblower protection policy that, at a minimum, meets the requirements of Subsection B of this section to protect whistleblowers from any form of retaliatory action by the entity. The policy shall be posted at each entity's workplace, published on the entity's website and given, by either written or electronic communication, to every officer, employee, contractor or other agent of the entity. D. Except as otherwise provided in the Health Care Consolidation Oversight Act and in addition to any criminal charges or civil suits that may be brought against an entity for either an unlawful or improper act or retaliatory actions, the secretary may assess an administrative fine not to exceed ten thousand dollars ($10,000) on an entity that the secretary finds has engaged in retaliatory action. Each retaliatory action or each day of violation may be considered a separate violation. If the secretary finds the entity willfully or repeatedly violated or continues to violate the prohibition against retaliatory actions, the secretary may assess an administrative fine not to exceed one hundred thousand dollars ($100,000) for each violation. E. The secretary shall give notice to the entity of the secretary's intention to assess an administrative fine and specify the findings of retaliatory action. The entity may request a hearing, which shall be conducted as provided in the Administrative Procedures Act [12-8-1 to 12-8-25 NMSA 1978]. The secretary shall make final findings and decisions, which may include the time in which the entity must correct an unlawful or improper violation, and send a copy by registered mail to the entity. The decision of the secretary is a final agency action and may be appealed to the district court as provided in Section 39-3-1.1 NMSA 1978. The entity has thirty days in which to pay the administrative fine. F. An entity that fails to stop or correct a retaliatory action within the period allowed for its correction, which period shall not begin to run until the date of the final order or appeal, if applicable, may be assessed a separate administrative fine not to exceed fifteen thousand dollars ($15,000) for each day during which the failure to stop or correct retaliatory action continues past the deadline for stopping or correcting the action. G. Administrative fines shall be deposited in the state treasury to the credit of the current school fund as required by Article 12, Section 4 of the constitution of New Mexico. H. The rights and remedies provided in this section shall not be waived by an agreement, policy form or condition of employment, including by an arbitration agreement. I. Nothing in this section shall be deemed to diminish the rights, privileges or remedies of a whistleblower or other person pursuant to any federal or state law or pursuant to any collective bargaining agreement.