[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 351 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 351

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.


_______________________________________________________________________


                   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

_______________________________________________________________________

                                 A BILL


 
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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safe Nursing and Patient Care Act of 
2005''.

SEC. 2. FINDINGS.

    The Congress finds as follows:
            (1) 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.
            (2) 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.
            (3) 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.
            (4) 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.
            (5) 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.
            (6) 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.
            (7) 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 described being ``coerced'' into 
        working voluntary overtime.
            (8) 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.
            (9) 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.

SEC. 3. LIMITATIONS ON MANDATORY OVERTIME FOR NURSES.

    (a) Provider Agreements.--Section 1866 of the Social Security Act 
(42 U.S.C. 1395cc) is amended--
            (1) in subsection (a)(1)--
                    (A) in subparagraph (U), by striking ``and'' at the 
                end;
                    (B) in subparagraph (V), by striking the period and 
                inserting ``, and''; and
                    (C) by inserting after subparagraph (V), the 
                following:
                    ``(W) to comply with the requirements of subsection 
                (k) (relating to limitations on mandatory overtime for 
                nurses).''; and
            (2) by adding at the end the following new subsection:
    ``(k) Limitations on Mandatory Overtime for Nurses.--For purposes 
of subsection (a)(1)(W), the requirements of this subsection are the 
following:
            ``(1) 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:
                    ``(A) The scheduled work shift or duty period of 
                the nurse.
                    ``(B) 12 hours in a 24-hour period.
                    ``(C) 80 hours in a consecutive 14-day period.
            ``(2) Exceptions.--
                    ``(A) In general.--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.
                    ``(B) Limitations.--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--
                            ``(i) the provider has made reasonable 
                        efforts to fill the immediate staffing needs of 
                        the provider through alternative means; and
                            ``(ii) the duration of the work requirement 
                        does not extend past the earlier of--
                                    ``(I) the date on which the 
                                declared state of emergency ends; or
                                    ``(II) the date on which the 
                                provider's direct role in responding to 
                                the medical needs resulting from the 
                                declared state of emergency ends.
            ``(3) Report of violations.--
                    ``(A) Right to report.--
                            ``(i) In general.--A nurse may file a 
                        complaint with the Secretary against a provider 
                        of services who violates the provisions of this 
                        subsection.
                            ``(ii) Procedure.--The Secretary shall 
                        establish a procedure under which a nurse may 
                        file a complaint under clause (i).
                    ``(B) Investigation of complaint.--The Secretary 
                shall investigate complaints of violations filed by a 
                nurse under subparagraph (A).
                    ``(C) Actions.--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).
            ``(4) Nurse nondiscrimination protections.--
                    ``(A) In general.--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--
                            ``(i) 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;
                            ``(ii) 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
                            ``(iii) 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.
                    ``(B) Retaliatory reporting.--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.
                    ``(C) Good faith.--For purposes of this paragraph, 
                a nurse is deemed to be acting in good faith if the 
                nurse reasonably believes--
                            ``(i) that the information reported or 
                        disclosed is true; and
                            ``(ii) that a violation has occurred or may 
                        occur.
            ``(5) Notice.--
                    ``(A) 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.
                    ``(B) 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.
            ``(6) 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.
            ``(7) Civil money penalty.--
                    ``(A) In general.--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.
                    ``(B) 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.
                    ``(C) 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).
        The Secretary shall publish on the Internet site of the 
        Department of Health and Human Services the names of providers 
        of services against which civil money penalties have been 
        imposed under this paragraph, the violation for which the 
        penalty was imposed, and such additional information as the 
        Secretary determines appropriate. With respect to a provider of 
        services that has had a change in ownership, as determined by 
        the Secretary, penalties imposed on the provider of services 
        while under previous ownership shall no longer be published by 
        the Secretary on such Internet site after the 1-year period 
        beginning on the date of change in ownership.
            ``(8) 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.
            ``(9) Definitions.--In this subsection:
                    ``(A) Mandatory overtime.--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.
                    ``(B) Overtime.--The term `overtime' means time 
                worked in excess of the periods of time described in 
                paragraph (1).
                    ``(C) Nurse.--The term `nurse' means a registered 
                nurse or a licensed practical nurse.
                    ``(D) Provider of services.--The term `provider of 
                services' means--
                            ``(i) a hospital (as defined in section 
                        1861(e));
                            ``(ii) a psychiatric hospital (as defined 
                        in section 1861(f));
                            ``(iii) a hospital outpatient department;
                            ``(iv) a critical access hospital;
                            ``(v) an ambulatory surgical center;
                            ``(vi) a home health agency;
                            ``(vii) a rehabilitation agency;
                            ``(viii) a clinic, including a rural health 
                        clinic; or
                            ``(ix) a federally qualified health center.
                    ``(E) 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.
                    ``(F) Standards of safe patient care.--The term 
                `standards of safe patient care' means the recognized 
                professional standards governing the profession of the 
                nurse involved.''.
    (b) Effective Date.--The amendments made by this section shall take 
effect 1 year after the date of enactment of this Act.

SEC. 4. REPORTS.

    (a) Standards on Safe Working Hours for Nurses.--
            (1) Study.--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.
            (2) Report.--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.
    (b) Report on Mandatory Overtime in Federally Operated Medical 
Facilities.--
            (1) Study.--
                    (A) In general.--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.
                    (B) 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.
            (2) Report.--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.
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