Community Grievance Decision Digest

RETALIATION FOR USE OF GRIEVANCE PROCEDURE PROHIBITED

THE LAW:

Each patient shall: "Have the right to present grievances under the procedures established under sub. (5) on his or her own behalf or that of others to the staff or administrator of the treatment facility or community mental health program without justifiable fear of reprisal and to communicate, subject to par. (p) [the right to make phone calls], with public officials or with any other person without justifiable fear of reprisal."

§ 51.61(1)(u), Wis. Stats. [Emphasis added.]

"(1) A patient or a person acting on behalf of a patient may file a grievance under s. HFS 94.29 procedures with the administrator of a facility or other service provider or with a staff member of the facility or other service provider without fear of reprisal and may communicate, subject to s. 51.61(1)(p), Stats., [right to make phone calls] with any public official or any other person without fear of reprisal.

(2) No person may intentionally retaliate or discriminate against any patient, person acting on behalf of a patient or employee for contacting or providing information to any official or to an employee of any state protection and advocacy agency, or for initiating, participating in or testifying in a grievance procedure or in any action for any remedy authorized by law.

(3) No person may deprive a patient of the ability to seek redress for alleged violations of his or her rights by unreasonably precluding the patient from using the grievance procedure established under s. HFS 94.29 or from communicating, subject to any valid telephone or visitor restriction under s. HFS 94.05, with a court, government official, grievance investigator or staff member of a protection and advocacy agency or with legal counsel."

HFS 94.28, Wis. Admin. Code [Emphasis added.]

"No person who, in good faith, files a report with the appropriate examining board concerning the violation of rights under this section by persons licensed under ch. 441 [nurses], 446 [chiropractors], 450 [pharmacists], 455 [psychologists] or 456 [nursing home administrators], or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation."

§ 51.61(10), Wis. Stats. [Emphasis added.]

DECISIONS

1. Where a methadone clinic discouraged a patient from bringing an advocate with him to a team meeting, the clinic violated his right to bring a grievance without fear of retaliation or discrimination. (Level III decision in Case No. 99-SGE-02 on 5/17/00. Appeal to Level IV by the patient was dismissed since the Level III decision was in his favor.)

2. A patient who had complained about her therapist and physician expressed concerns about the confidentiality of her involvement in the grievance procedure and any follow through that had occurred with her provider. She alleged that the entire staff of the service provider knew about her complaints. The director of the service provider noted that the record keeping system for grievances was entirely separate and that only staff with a "need to know" are given access to or information about the filing of grievances. Only a select group of management and treatment staff were aware of this patient’s grievances and information about them was not available to others. It was found that the confidentiality of this grievance was honored and no rights violation occurred. (Level III decision in Case No. 00-SGE-03 on 9/12/01.)

3. A father claimed that his son’s discharge from treatment at a medical center was in retaliation for his filing a complaint about his own mother’s care there. It was determined that other factors led to the son’s discharge and that the father had been told that it was going to occur soon. This occurred several months prior to the complainant filing a grievance about his mother’s care. No retaliation for filing a complaint was found. (Level III decision in Case No. 02-SGE-06 on 1/27/03.)

4. There is no limit to the number of grievances a patient may file. But where an inpatient filed many, many complaints while in a treatment facility, without any attempts to resolve his issues first, he should not be surprised when both the staff and his peers became very frustrated with him. The county transitioned him to a smaller home with fewer residents where he would have less opportunity for confrontation with others. This was not done in retaliation for his use of the grievance process. (Level III decision in Case No. 02-SGE-05 on 3/19/03)

5. There is insufficient evidence to conclude that a facility’s Chief Legal Counsel discouraged someone from filing a complaint. The facts indicate he merely informed the individual that he did not believe he had a malpractice claim that would be upheld in court. The fact that the individual was able to bring this complaint and appeal it up through the grievance process to Level IV indicates that his right to complain was not violated. (Level IV decision in Case No. 02-SGE-07 on 3/10/04.)

6.  A psychiatrist determined that the therapeutic rapport between himself and one of his clients had been irrevocably damaged. That presented a valid treatment reason for discontinuing his services to that client.  There was no indication that a psychiatrist’s services to a particular client were terminated in retaliation for his use of the grievance procedure.  (Level IV decision in Case Nos. 05-SGE-06 and 05-SGE-08 on 12/15/06)

Last Updated: October 30, 2006