1.This Act may be cited as the
Safe Nursing and Patient Care Act of
2005
.
2.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.
3.Limitations on
mandatory overtime for nurses
(a)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 nursesFor purposes of subsection
(a)(1)(W), the requirements of this subsection are the following:
(1)Prohibition on
mandatory overtimeExcept 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)
(A)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)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)
(A)
(i)A nurse may file a complaint with the Secretary against a
provider of services who violates the provisions of this subsection.
(ii)The
Secretary shall establish a procedure under which a nurse may file a complaint
under clause (i).
(B)Investigation of
complaintThe Secretary shall investigate complaints of
violations filed by a nurse under subparagraph (A).
(C)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)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)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)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)
(A)Requirement to
post noticeEach 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)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
schedulesA 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)
(A)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)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 penaltiesThe 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)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)In
this subsection:
(A)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)The
term overtime means time worked in excess of the periods of time
described in paragraph (1).
(C)The
term nurse means a registered nurse or a licensed practical
nurse.
(D)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 emergencyThe 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 careThe term standards of safe patient
care means the recognized professional standards governing the
profession of the nurse involved.
.
(b)The amendments made by this section shall take effect 1 year
after the date of enactment of this Act.
4.
(a)Standards on
safe working hours for nurses
(1)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)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)
(A)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 definedIn 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)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.