Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The federal government and nurses' unions have recently increased their focus on nurse-to-patient ratios and providing nurses – and nurses’ unions – with greater influence on nurse staffing levels. As reported in a previous post, earlier this month a federal agency used its website to advocate increasing hospital nurse-to-patient ratios. Nurses' unions also have been rallying, striking, and marching on Washington to push for nurse-staffing legislation and provisions in collective bargaining agreements. Concurrent with these efforts, legislation was introduced in both the House and Senate this week that would require Medicare-participating hospitals to establish staffing plans for nursing services, provide certain whistleblower protections for employees and patients, and subject employers in violation of the bill to monetary penalties.
The Registered Nurse Safe Staffing Act of 2010 (H.R. 5527, S. 3491) would amend the Social Security Act (SSA) to mandate that Medicare-participating hospitals create nurse staffing committees to formulate nurse staffing plans. At least 55% of the committee members would have to be registered nurses who provide direct patent care, but are not hospital nurse managers or part of the hospital’s administrative staff, although some nurse managers also would be included in the committee. At least one registered nurse from each nursing specialty or hospital unit, who provides direct patient care, would have to be part of the committee.
The staffing committee would be responsible for, among other duties, developing and monitoring the implementation of a hospital-wide nurse staffing plan, and developing overtime and relief policies and procedures for registered nurses with direct patient care responsibilities. The proposed legislation would require that staffing plans:
- establish adjustable minimum numbers of registered nurses;
- ensure that a registered nurse shall not be assigned to work in a hospital unit without first establishing the nurse is able to provide professional care in that area; and
- provide for exemptions from some or all requirements of the hospital-wide staffing plan for nursing services during a declared state of emergency if the hospital is requested or expected to provide an exceptional level of emergency or other medical services.
The proposed legislation also would require that registered nurse staffing plans be based on and take into account:
- input from the hospital’s registered nurse staff, or their exclusive representatives (i.e. a union representing the nurses), who provide direct patient care and the chief nurse executive;
- the number of patients and the level and variability of care to be provided to those patients, with appropriate consideration given to the volume of admissions, discharges, and transfers during each shift;
- contextual issues affecting nurse staffing and the delivery of care, including architecture, geography and available technology;
- the level of education, training, and experience of those registered nurses providing direct patient care;
- the staffing levels and services provided by other health care personnel associated with nursing care, such as certified nurse assistants, licensed vocational nurses, licensed psychiatric technicians, nursing assistants, aides, and orderlies;
- staffing levels recommended by specialty nursing organizations; and
- unit and facility level staffing, quality and patient outcome data, and national comparisons, as available.
Covered hospitals would have to post daily, in a visible place, the number of on-duty licensed and unlicensed nurses directly responsible for patient care and, upon request, make available the staffing plan to the public. Hospitals would be required to maintain, for at least three years, records used to determine whether the hospital has implemented a nurse staffing plan. Hospitals in violation of the bill’s requirements could be subject to civil penalties of up to $10,000 for each knowing violation. The U.S. Department of Health and Human Services would maintain a web site listing the names of the hospitals that are fined under the Act.
The proposed legislation also includes a number of employee and patient whistleblower protections. The bill would prohibit hospitals from discriminating or retaliating against any employee or patient who has presented a grievance, filed a complaint, or otherwise cooperated in an investigation or proceeding related to the staffing plan. Additionally, a nurse could refuse to accept a nursing assignment that violates the staffing plan, or that requires performance of duties that the nurse lacks education or experience to perform. The whistleblower provisions provide patients with liquidated damages of up to $5,000 per violation, and attorneys’ fees and costs associated with pursing a case. Prevailing employees could obtain reinstatement, lost wages and benefits, and attorneys’ fees and costs.
If enacted, the provisions of this bill would take effect no later than two years after it is signed into law. Rural hospitals would have an additional two years to implement the staffing plan requirements.
This bill has been referred to the House Committees on Energy and Commerce and Ways and Means. The Senate companion bill has been referred to the Senate Committee on Finance.
Other bills have been introduced in both chambers that require all hospitals to develop and implement staffing plans that establish minimum direct care registered nurse-to-patient ratios and adjust staffing numbers based on patient acuity levels and other considerations. The Nurse Staffing Standards for Patient Safety and Quality Care Act of 2009 (H.R. 2273) and the National Nursing Shortage Reform and Patient Advocacy Act (S. 1031) both would require hospitals to implement nurse-to-patient staffing plans, although neither bill has gained much traction in Congress.
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