IN THE SENATE OF THE UNITED STATES
February 10, 2005
Mr. Kennedy (for himself, Mr. Kerry, Mr. Akaka, Mrs. Boxer, Mrs. Clinton, Mr. Corzine, Mr. Dodd, Mr. Feingold, Mr. Inouye, Mr. Lautenberg, Mr. Levin, Mr. Lieberman, Ms. Mikulski, Mr. Sarbanes, and Mr. Reed) introduced the following bill; which was read twice and referred to the Committee on Finance
To amend title XVIII of the Social Security Act to provide for patient protection by limiting the number of mandatory overtime hours a nurse may be required to work in certain providers of services to which payments are made under the Medicare Program.
This Act may be cited as the
Safe Nursing and Patient Care Act of
The Congress finds as follows:
The Federal Government has a substantial interest in assuring that the delivery of health care services to patients in health care facilities is adequate and safe.
Research, including a study published in the Journal of the American Medical Association (in the October 23–30, 2002 issue), documents that higher nurse staffing levels result in better patient outcomes. However, health care facilities report substantial difficulties in recruiting and retaining sufficient nursing staff, as evidenced by the fact that approximately 500,000 licensed nurses are not practicing nursing.
Job dissatisfaction and overtime work are contributing to the departure of nurses from their profession, as documented by the Government Accountability Office in a July 2001 report. Yet, health care providers continue to make use of mandatory overtime as a staffing model.
The widespread practice of requiring nurses to work extended shifts and forgo days off frequently causes nurses to provide care in a state of fatigue which contributes to medical errors and results in other consequences that compromise patient safety.
The dangers with mandatory overtime are made clear by numerous studies. A November 2003 Institute of Medicine report, Keeping Patients Safe: Transforming the Work Environment of Nurses, concluded that limiting the number of hours worked per day and consecutive days of work by nursing staff, as is done in other safety-sensitive industries, is a fundamental safety precaution. The report went on to specifically recommend that working more than 12 hours in any 24-hour period and more than 60 hours in any 7-day period be prevented except in case of an emergency, such as a natural disaster.
Another study published in the July/August 2004 Health Affairs Journal, The Working Hours of Hospital Staff Nurses and Patient Safety, found that nurses who worked shifts of twelve and a half hours or more were three times more likely to commit an error than nurses who worked standard shifts of eight and a half hours or less. The study also found that working overtime increased the odds of making at least one error, regardless of how long the shift was originally scheduled.
That same study
also illustrates how nurses are being forced to work more and more overtime.
The majority of nurses surveyed reported working overtime ten or more times in
a twenty-eight day period and one-sixth reported working sixteen or more
consecutive hours at least once during the period. Nurses reported being
mandated to work overtime on 360 shifts and on another 143 shifts they
coerced into working voluntary overtime.
While no Federal standards currently restrict mandatory nurse overtime, many States are considering such laws and several States, including California, Connecticut, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington, and West Virginia, have enacted laws or prescribed regulations.
Federal limitations on mandatory nurse overtime will ensure that health care facilities throughout the country operate in a manner that safeguards public safety by helping assure the delivery of quality nursing care and facilitating the retention and recruitment of nurses.
Limitations on mandatory overtime for nurses
Section 1866 of the Social Security Act (42 U.S.C. 1395cc) is amended—
in subsection (a)(1)—
(U), by striking
and at the end;
(V), by striking the period and inserting
, and; and
by inserting after subparagraph (V), the following:
to comply with the requirements of subsection (k) (relating to limitations on mandatory overtime for nurses).
by adding at the end the following new subsection:
Limitations on mandatory overtime for nurses
For purposes of subsection (a)(1)(W), the requirements of this subsection are the following:
Prohibition on mandatory overtime
Except as provided in this subsection, a provider of services shall not, directly or indirectly, require a nurse to work in excess of any of the following:
The scheduled work shift or duty period of the nurse.
12 hours in a 24-hour period.
80 hours in a consecutive 14-day period.
Subject to subparagraph (B), the requirements of paragraph (1) shall not apply to a provider of services during a declared state of emergency if the provider is requested, or otherwise is expected, to provide an exceptional level of emergency or other medical services to the community.
With respect to a provider of services to which subparagraph (A) applies, a nurse may only be required to work for periods in excess of the periods described in paragraph (1) if—
the provider has made reasonable efforts to fill the immediate staffing needs of the provider through alternative means; and
the duration of the work requirement does not extend past the earlier of—
the date on which the declared state of emergency ends; or
the date on which the provider’s direct role in responding to the medical needs resulting from the declared state of emergency ends.
Report of violations
Right to report
A nurse may file a complaint with the Secretary against a provider of services who violates the provisions of this subsection.
The Secretary shall establish a procedure under which a nurse may file a complaint under clause (i).
Investigation of complaint
The Secretary shall investigate complaints of violations filed by a nurse under subparagraph (A).
If the Secretary determines that a provider of services has violated the provisions of this subsection, the Secretary shall require the provider to establish a plan of action to eliminate the occurrence of such violation, and may seek civil money penalties under paragraph (7).
Nurse nondiscrimination protections
A provider of services shall not penalize, discriminate, or retaliate in any manner with respect to any aspect of employment, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, against a nurse who refuses to work mandatory overtime or who in good faith, individually or in conjunction with another person or persons—
reports a violation or suspected violation of this subsection to a public regulatory agency, a private accreditation body, or the management personnel of the provider of services;
initiates, cooperates, or otherwise participates in an investigation or proceeding brought by a regulatory agency or private accreditation body concerning matters covered by this subsection; or
informs or discusses with other employees, with representatives of those employees, or with representatives of associations of health care professionals, violations or suspected violations of this subsection.
A provider of services may not file a complaint or a report against a nurse with the appropriate State professional disciplinary agency because the nurse refused to comply with a request to work mandatory overtime.
For purposes of this paragraph, a nurse is deemed to be acting in good faith if the nurse reasonably believes—
that the information reported or disclosed is true; and
that a violation has occurred or may occur.
Requirement to post notice
Each provider of services shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying rights of nurses under this section.
Right to file complaint
Such sign shall include a statement that a nurse may file a complaint with the Secretary against a provider of services who violates the provisions of this subsection and information with respect to the manner of filing such a complaint.
Posting of nurse schedules
A provider of services shall regularly post in a conspicuous manner the nurse schedules (for such periods of time that the Secretary determines appropriate by type or class of provider of services) for the department or unit involved, and shall make available upon request to nurses assigned to the department or unit the daily nurse schedule for such department or unit.
Civil money penalty
The Secretary may impose a civil money penalty of not more than $10,000 for each knowing violation of the provisions of this subsection committed by a provider of services.
Patterns of violations
Notwithstanding subparagraph (A), the Secretary shall provide for the imposition of more severe civil money penalties under this paragraph for providers of services that establish patterns of repeated violations of such provisions.
Administration of penalties
The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under this paragraph in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).
Rule of construction
Nothing in this subsection shall be construed as precluding a nurse from voluntarily working more than any of the periods of time described in paragraph (1), so long as such work is done consistent with professional standards of safe patient care.
In this subsection:
The term mandatory overtime means hours worked in excess of the periods of time described in paragraph (1), except as provided in paragraph (2), pursuant to any request made by a provider of services to a nurse which, if refused or declined by the nurse involved, may result in an adverse employment consequence to the nurse, including discharge, discipline, loss of promotion, or retaliatory reporting of the nurse to the State professional disciplinary agency involved.
The term overtime means time worked in excess of the periods of time described in paragraph (1).
The term nurse means a registered nurse or a licensed practical nurse.
Provider of services
The term provider of services means—
a hospital (as defined in section 1861(e));
a psychiatric hospital (as defined in section 1861(f));
a hospital outpatient department;
a critical access hospital;
an ambulatory surgical center;
a home health agency;
a rehabilitation agency;
a clinic, including a rural health clinic; or
a federally qualified health center.
Declared State of emergency
The term declared state of emergency means an officially designated state of emergency that has been declared by the Federal Government or the head of the appropriate State or local governmental agency having authority to declare that the State, county, municipality, or locality is in a state of emergency, but does not include a state of emergency that results from a labor dispute in the health care industry or consistent understaffing.
Standards of safe patient care
The term standards of safe patient care means the recognized professional standards governing the profession of the nurse involved.
The amendments made by this section shall take effect 1 year after the date of enactment of this Act.
Standards on safe working hours for nurses
The Secretary of Health and Human Services, acting through the Director of the Agency for Healthcare Research and Quality, shall conduct a study to establish appropriate standards for the maximum number of hours that a nurse, who furnishes health care to patients, may work without compromising the safety of such patients. Such standards may vary by provider of service and by department within a provider of services, by duties or functions carried out by nurses, by shift, and by other factors that the Director determines appropriate. The Director may contract with an eligible entity or organization to carry out the study under this paragraph.
Not later than 2 years after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the study conducted under paragraph (1) and shall include recommendations for such appropriate standards of maximum work hours.
Report on mandatory overtime in Federally operated medical facilities
The Director of the Office of Management and Budget shall conduct a study to determine the extent to which federally operated medical facilities have in effect practices and policies with respect to overtime requirements for nurses that are inconsistent with the provisions of section 1866(k) of the Social Security Act, as added by section 3.
Federally operated medical facilities defined
In this subsection, the term federally operated medical facilities means acute care hospitals, freestanding clinics, and home health care clinics that are operated by the Department of Veterans Affairs, the Department of Defense, or any other department or agency of the United States.
Not later than 6 months after the date of the enactment of this Act, the Director of the Office of Management and Budget shall submit to Congress a report on the study conducted under paragraph (1) and shall include recommendations for the implementation of policies within federally operated medical facilities with respect to overtime requirements for nurses that are consistent with such section 1866(k), as so added.