[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1788 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1788

 To direct the Secretary of Labor to issue an occupational safety and 
health standard to reduce injuries to patients, direct-care registered 
   nurses, and all other health care workers by establishing a safe 
    patient handling and injury prevention standard, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 15, 2009

  Mr. Franken introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To direct the Secretary of Labor to issue an occupational safety and 
health standard to reduce injuries to patients, direct-care registered 
   nurses, and all other health care workers by establishing a safe 
    patient handling and injury prevention standard, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE; FINDINGS; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Nurse and Health 
Care Worker Protection Act of 2009''.
    (b) Findings.--Congress finds the following:
            (1) In 2007, direct-care registered nurses ranked seventh 
        among all occupations for the number of cases of 
        musculoskeletal disorders resulting in days away from work--
        8,580 total cases. Nursing aides, orderlies, and attendants 
        sustained 24,340 musculoskeletal disorders in 2007, the second 
        highest of any occupation. The leading cause of these injuries 
        in health care are the result of patient lifting, transferring, 
        and repositioning injuries.
            (2) The physical demands of the nursing profession lead 
        many nurses to leave the profession. Fifty-two percent of 
        nurses complain of chronic back pain and 38 percent suffer from 
        pain severe enough to require leave from work. Many nurses and 
        other health care workers suffering back injury do not return 
        to work.
            (3) Patients are not at optimum levels of safety while 
        being lifted, transferred, or repositioned manually. Mechanical 
        lift programs can substantially reduce skin tears suffered by 
        patients and the frequency of patients being dropped, thus 
        allowing patients a safer means to progress through their care.
            (4) The development of assistive patient handling equipment 
        and devices has essentially rendered the act of strict manual 
        patient handling unnecessary as a function of nursing care.
            (5) A growing number of health care facilities have 
        incorporated patient handling technology and have reported 
        positive results. Injuries among nursing staff have 
        dramatically declined since implementing patient handling 
        equipment and devices. As a result, the number of lost work 
        days due to injury and staff turnover has declined. Studies 
        have also shown that assistive patient handling technology 
        successfully reduces workers' compensation costs for 
        musculoskeletal disorders.
            (6) Establishing a safe patient handling and injury 
        prevention standard for direct-care registered nurses and other 
        health care workers is a critical component in protecting 
        nurses and other health care workers, addressing the nursing 
        shortage, and increasing patient safety.
    (c) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; findings; table of contents.
Sec. 2. Safe patient handling and injury prevention standard.
Sec. 3. Protection of direct-care registered nurses and health care 
                            workers.
Sec. 4. Application of safe patient handling and injury prevention 
                            standard to health care facilities not 
                            covered by OSHA.
Sec. 5. Financial assistance to needy health care facilities in the 
                            purchase of safe patient handling and 
                            injury prevention equipment.
Sec. 6. Definitions.

SEC. 2. SAFE PATIENT HANDLING AND INJURY PREVENTION STANDARD.

    (a) Rulemaking.--Not later than 1 year after the date of the 
enactment of this Act, the Secretary of Labor, shall, pursuant to 
section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 
655), propose a standard on safe patient handling and injury prevention 
(in this section such standard referred to as the ``safe patient 
handling and injury prevention standard'') under such section to 
prevent musculoskeletal disorders for direct-care registered nurses and 
all other health care workers handling patients in health care 
facilities. A final safe patient handling and injury prevention 
standard shall be promulgated not later than 2 years after the date of 
the enactment of this Act.
    (b) Requirements.--The safe patient handling and injury prevention 
standard shall require the use of engineering controls to perform 
lifting, transferring, and repositioning of patients and the 
elimination of manual lifting of patients by direct-care registered 
nurses and all other health care workers, through the use of mechanical 
devices to the greatest degree feasible except where the use of safe 
patient handling practices can be demonstrated to compromise patient 
care. The standard shall apply to all health care employers and shall 
require at least the following:
            (1) Each health care employer to develop and implement a 
        safe patient handling and injury prevention plan within 6 
        months of the date of promulgation of the final standard, which 
        plan shall include hazard identification, risk assessments, and 
        control measures in relation to patient care duties and patient 
        handling.
            (2) Each health care employer to purchase, use, maintain, 
        and have accessible an adequate number of safe lift mechanical 
        devices not later than 2 years after the date of issuance of a 
        final regulation establishing such standard.
            (3) Each health care employer to obtain input from direct-
        care registered nurses, health care workers, and employee 
        representatives of direct-care registered nurses and health 
        care workers in developing and implementing the safe patient 
        handling and injury prevention plan, including the purchase of 
        equipment.
            (4) Each health care employer to establish and maintain a 
        data system that tracks and analyzes trends in injuries 
        relating to the application of the safe patient handling and 
        injury prevention standard and to make such data and analyses 
        available to employees and employee representatives.
            (5) Each health care employer to establish a system to 
        document in each instance when safe patient handling equipment 
        was not utilized due to legitimate concerns about patient care 
        and to generate a written report in each such instance. The 
        report shall list the following:
                    (A) The work task being performed.
                    (B) The reason why safe patient handling equipment 
                was not used.
                    (C) The nature of the risk posed to the worker from 
                manual lifting.
                    (D) The steps taken by management to reduce the 
                likelihood of manual lifting and transferring when 
                performing similar work tasks in the future.
        Such reports shall be made available to OSHA compliance 
        officers, workers, and their representatives upon request 
        within one business day.
            (6) Each health care employer to train nurses and other 
        health care workers on safe patient handling and injury 
        prevention policies, equipment, and devices at least on an 
        annual basis. Such training shall include providing information 
        on hazard identification, assessment, and control of 
        musculoskeletal hazards in patient care areas and shall be 
        conducted by an individual with knowledge in the subject 
        matter, and delivered, at least in part, in an interactive 
        classroom-based and hands-on format.
            (7) Each health care employer to post a uniform notice in a 
        form specified by the Secretary that--
                    (A) explains the safe patient handling and injury 
                prevention standard;
                    (B) includes information regarding safe patient 
                handling and injury prevention policies and training; 
                and
                    (C) explains procedures to report patient handling-
                related injuries.
            (8) Each health care employer to conduct an annual written 
        evaluation of the implementation of the safe patient handling 
        and injury prevention plan, including handling procedures, 
        selection of equipment and engineering controls, assessment of 
        injuries, and new safe patient handling and injury prevention 
        technology and devices that have been developed. The evaluation 
        shall be conducted with the involvement of nurses, other health 
        care workers, and their representatives and shall be documented 
        in writing. Health care employers shall take corrective action 
        as recommended in the written evaluation.
    (c) Inspections.--The Secretary of Labor shall conduct unscheduled 
inspections under section 8 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 657) to ensure implementation of and compliance with 
the safe patient handling and injury prevention standard.

SEC. 3. PROTECTION OF DIRECT-CARE REGISTERED NURSES AND HEALTH CARE 
              WORKERS.

    (a) Refusal of Assignment.--The Secretary shall ensure that a 
direct-care registered nurse or other health care worker may refuse to 
accept an assignment from a health care employer if--
            (1) the assignment would subject the worker to conditions 
        that would violate the safe patient handling and injury 
        prevention standard; or
            (2) the nurse or worker has not received training described 
        in section 2(a)(5) that meets such standard.
    (b) Retaliation for Refusal of Lifting Assignment Barred.--
            (1) No discharge, discrimination, or retaliation.--No 
        health care employer shall discharge, 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 
        direct-care registered nurse or other health care worker based 
        on the nurse's or worker's refusal of a lifting assignment 
        under subsection (a).
            (2) No filing of complaint.--No health care employer shall 
        file a complaint or a report against a direct-care registered 
        nurse or other health care worker with the appropriate State 
        professional disciplinary agency because of the nurse's or 
        worker's refusal of a lifting assignment under subsection (a).
    (c) Whistleblower Protection.--
            (1) Retaliation barred.--A health care employer shall not 
        discriminate or retaliate in any manner with respect to any 
        aspect of employment, including hiring, discharge, promotion, 
        compensation, or terms, conditions, or privileges of employment 
        against any nurse or health care worker who in good faith, 
        individually or in conjunction with another person or persons--
                    (A) reports a violation or a suspected violation of 
                this Act or the safe patient handling and injury 
                prevention standard to the Secretary of Labor, a public 
                regulatory agency, a private accreditation body, or the 
                management personnel of the health care employer;
                    (B) initiates, cooperates, or otherwise 
                participates in an investigation or proceeding brought 
                by the Secretary, a public regulatory agency, or a 
                private accreditation body concerning matters covered 
                by this Act; or
                    (C) informs or discusses with other individuals or 
                with representatives of health care employees a 
                violation or suspected violation of this Act.
            (2) Good faith defined.--For purposes of this subsection, 
        an individual shall be deemed to be acting in good faith if the 
        individual reasonably believes--
                    (A) the information reported or disclosed is true; 
                and
                    (B) a violation of this Act or the safe patient 
                handling and injury prevention standard has occurred or 
                may occur.
    (d) Complaint to Secretary.--
            (1) Filing.--A direct-care registered nurse, health care 
        worker, or other individual may file a complaint with the 
        Secretary of Labor against a health care employer that violates 
        this section within 180 days of the date of the violation.
            (2) Response to complaint.--For any complaint so filed, the 
        Secretary shall--
                    (A) receive and investigate the complaint;
                    (B) determine whether a violation of this Act as 
                alleged in the complaint has occurred; and
                    (C) if such a violation has occurred, issue an 
                order that sets forth the violation and the required 
                remedy or remedies.
            (3) Remedies.--The Secretary shall have the authority to 
        order all appropriate remedies for such violations.
    (e) Cause of Action.--Any direct-care registered nurse or other 
health care worker who has been discharged, discriminated, or 
retaliated against in violation of this section may bring a cause of 
action in a United States district court. A direct-care registered 
nurse or other health care worker who prevails on the cause of action 
shall be entitled to the following:
            (1) Reinstatement, reimbursement of lost wages, 
        compensation, and benefits.
            (2) Attorneys' fees.
            (3) Court costs.
            (4) Other damages.
    (f) Notice.--A health care employer shall include in the notice 
required under section 2(b)(7) an explanation of the rights of direct-
care registered nurses and health care workers under this section and a 
statement that a direct-care registered nurse or health care worker may 
file a complaint with the Secretary against a health care employer that 
violates the safe patient handling and injury prevention standard, 
including instructions for how to file such a complaint.
    (g) Addition to Current Protections.--The worker protections 
provided for under this section are in addition to protections provided 
in section 11(c) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 660(c)).

SEC. 4. APPLICATION OF SAFE PATIENT HANDLING AND INJURY PREVENTION 
              STANDARD TO HEALTH CARE FACILITIES NOT COVERED BY OSHA.

    (a) In General.--Section 1866 of the Social Security Act (42 U.S.C. 
1395cc) is amended--
            (1) in subsection (a)(1)(V), by inserting ``and safe 
        patient handling and injury prevention standard (as initially 
        promulgated under section 2 of the Nurse and Health Care Worker 
        Protection Act of 2009)'' before the period at the end; and
            (2) in subsection (b)(4)--
                    (A) in subparagraph (A), inserting ``and the safe 
                patient handling and injury prevention standard'' after 
                ``Bloodborne Pathogens standard''; and
                    (B) in subparagraph (B), inserting ``or the safe 
                patient handling and injury prevention standard'' after 
                ``Bloodborne Pathogens standard''.
    (b) Effective Date.--The amendments made by subsection (a) shall 
apply to health care facilities 1 year after date of issuance of the 
final safe patient handling and injury prevention standard required 
under section 2.

SEC. 5. FINANCIAL ASSISTANCE TO NEEDY HEALTH CARE FACILITIES IN THE 
              PURCHASE OF SAFE PATIENT HANDLING AND INJURY PREVENTION 
              EQUIPMENT.

    (a) In General.--The Secretary of Health and Human Services shall 
establish a grant program that provides financial assistance to cover 
some or all of the costs of purchasing safe patient handling and injury 
prevention equipment for health care facilities, such as hospitals, 
nursing facilities, home health care, and outpatient facilities, that--
            (1) require the use of such equipment in order to comply 
        with the safe patient handling and injury prevention standard; 
        but
            (2) demonstrate the financial need for assistance for 
        purchasing the equipment required under such standard.
    (b) Application.--No financial assistance shall be provided under 
this section except pursuant to an application made to the Secretary of 
Health and Human Services in such form and manner as the Secretary 
shall specify.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated for financial assistance under this section $200,000,000, 
of which $50,000,000 will be available specifically for home health 
agencies or entities. Funds appropriated under this subsection shall 
remain available until expended.

SEC. 6. DEFINITIONS.

    For purposes of this Act:
            (1) Direct-care registered nurse.--The term ``direct-care 
        registered nurse'' means an individual who has been granted a 
        license by at least one State to practice as a registered nurse 
        and who provides bedside care or outpatient services for one or 
        more patients or residents.
            (2) Health care worker.--The term ``health care worker'' 
        means an individual who has been assigned to lift, reposition, 
        or move patients or residents in a health care facility.
            (3) Employment.--The term ``employment'' includes the 
        provision of services under a contract or other arrangement.
            (4) Health care employer.--The term ``health care 
        employer'' means an outpatient health care facility, hospital, 
        nursing home, home health care agency, hospice, federally 
        qualified health center, nurse managed health center, rural 
        health clinic, or any similar health care facility that employs 
        direct-care registered nurses or other health care workers.
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