1.This Act may be cited as
the Registered Nurse Safe Staffing Act
of 2011
.
2.Congress makes the following
findings:
(1)There are a
number of hospitals throughout the United States that do not provide adequate
registered nurse staffing to protect the health and safety of patients.
(2)Research shows
that patient safety in hospitals is directly proportionate to the number of
registered nurses working in the hospital. Higher staffing levels by
experienced registered nurses are related to lower rates of negative patient
outcomes, including falls, infections, medication errors, and even
death.
(3)Inadequate nurse
staffing was found to be a contributing factor in 24 percent of all
unanticipated events that resulted in patient death, injury, or permanent loss
of function.
(4)Registered nurses
play a vital role in preventing patient care errors, for example registered
nurses intercepted 86 percent of medical errors before those errors affected
patients.
(5)As a payer for
inpatient and outpatient hospital services for individuals entitled to benefits
under the Medicare program, the Federal Government has a compelling interest in
promoting the safety of such individuals by requiring any hospital
participating in that program to establish minimum safe staffing levels for
registered nurses.
(6)Adequate
registered nurse staffing levels are necessary for the delivery of safe,
quality care. Inadequate registered nurse staffing levels contribute to nurse
burnout and exacerbate the current nursing shortage in the United
States.
(7)Nearly 25 percent
of registered nurses indicate that they are considering leaving direct patient
care nursing due to inadequate nurse staffing, and nearly 60 percent of
registered nurses report they know of another nurse who left direct care
nursing because of concerns about inadequate nurse staffing.
(8)The cost to a
hospital to replace a direct patient care registered nurse is more than 101
percent, and as much as 106 percent, of a registered nurse’s annual
salary.
(9)As a result of
insufficient staff, registered nurses are being required to perform
professional services under conditions that do not support quality health care
or a healthful work environment for registered nurses.
3.Establishment of
safe nurse staffing levels by medicare participating hospitals
(a)Requirement of
medicare provider agreementSection 1866(a)(1) of the Social
Security Act (42 U.S.C. 1395cc(a)(1)) is amended—
(1)in subparagraph
(V), by striking and
at the end;
(2)in subparagraph
(W), as added by section 3005 of the Patient Protection and Affordable Care Act
(Public Law 111–148)—
(A)by moving such
subparagraph 2 ems to the left; and
(B)by striking the
period at the end;
(3)in subparagraph
(W), as added by section 6406(b) of the Patient Protection and Affordable Care
Act (Public Law 111–148)—
(A)by moving such
subparagraph 2 ems to the left;
(B)by redesignating
such subparagraph as subparagraph (X); and
(C)by striking the
period at the end and inserting , and
; and
(4)by inserting
after subparagraph (X), as redesignated by paragraph (3)(B), the following new
subparagraph:
(Y)in the case of a hospital (as defined
in section 1861(e)), to meet the requirements of section
1899B.
.
(b)Title
XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) is amended by
inserting after section 1899A the following new section:
1899B.Nurse staffing requirements for medicare participating
hospitals(a)Implementation of
nurse staffing plan
(1)Each participating hospital shall implement a
hospital-wide staffing plan for nursing services furnished in the
hospital.
(2)Requirement for
development of staffing plan by hospital nurse staffing
committeeThe hospital-wide staffing plan for nursing services
implemented by a hospital pursuant to paragraph (1)—
(A)shall be
developed by the hospital nurse staffing committee established under subsection
(b); and
(B)shall require
that an appropriate number of registered nurses provide direct patient care in
each unit and on each shift of the hospital to ensure staffing levels
that—
(i)address the
unique characteristics of the patients and hospital units; and
(ii)result in the
delivery of safe, quality patient care, consistent with the requirements under
subsection (c).
(b)Hospital nurse
staffing committee
(1)Each
participating hospital shall establish a hospital nurse staffing committee
(hereinafter in this section referred to as the
Committee
).
(2)A
Committee established pursuant to this subsection shall be composed of members
as follows:
(A)Minimum 55
percent nurse participationNot less than 55 percent of the
members of the Committee shall be registered nurses who provide direct patient
care but who are neither hospital nurse managers nor part of the hospital
administration staff.
(B)Inclusion of
hospital nurse managersThe Committee shall include members who
are hospital nurse managers.
(C)Inclusion of
nurses from specialty unitsThe members of the Committee shall
include at least 1 registered nurse who provides direct care from each nurse
specialty or unit of the hospital (each such specialty or unit as determined by
the hospital).
(D)The Committee shall include such other personnel of the
hospital as the hospital determines to be appropriate.
(3)
(A)Development of
staffing planThe Committee shall develop a hospital-wide
staffing plan for nursing services furnished in the hospital consistent with
the requirements under subsection (c).
(B)Review and
modification of staffing planThe Committee shall—
(i)conduct regular,
ongoing monitoring of the implementation of the hospital-wide staffing plan for
nursing services furnished in the hospital;
(ii)carry out
evaluations of the hospital-wide staffing plan for nursing services at least
annually; and
(iii)make such
modifications to the hospital-wide staffing plan for nursing services as may be
appropriate.
(C)The Committee shall—
(i)develop policies
and procedures for overtime requirements of registered nurses providing direct
patient care and for appropriate time and manner of relief of such registered
nurses during routine absences; and
(ii)carry out such
additional duties as the Committee determines to be appropriate.
(c)Staffing plan
requirements
(1)Subject to paragraph (2), a hospital-wide staffing
plan for nursing services developed and implemented under this section
shall—
(A)be based upon
input from the registered nurse staff of the hospital who provide direct
patient care or their exclusive representatives, as well as the chief nurse
executive;
(B)be based upon the
number of patients and the level and variability of intensity of care to be
provided to those patients, with appropriate consideration given to admissions,
discharges, and transfers during each shift;
(C)take into account
contextual issues affecting nurse staffing and the delivery of care, including
architecture and geography of the environment and available technology;
(D)take into account
the level of education, training, and experience of those registered nurses
providing direct patient care;
(E)take into account
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;
(F)take into account
staffing levels recommended by specialty nursing organizations;
(G)establish
adjustable minimum numbers of registered nurses based upon an assessment by
registered nurses of the level and variability of intensity of care required by
patients under existing conditions;
(H)take into account
unit and facility level staffing, quality and patient outcome data, and
national comparisons, as available;
(I)ensure that a
registered nurse shall not be assigned to work in a particular unit of the
hospital without first having established the ability to provide professional
care in such unit; and
(J)provide for
exemptions from some or all requirements of the hospital-wide staffing plan for
nursing services during a declared state of emergency (as defined in subsection
(l)(1)) if the hospital is requested or expected to provide an exceptional
level of emergency or other medical services.
(2)A
staffing system developed and implemented under this section—
(A)shall not preempt
any registered-nurse staffing levels established under State law or regulation;
and
(B)may not utilize
any minimum number of registered nurses established under paragraph (1)(G) as
an upper limit on the nurse staffing of the hospital to which such minimum
number applies.
(d)Reporting and
release to public of certain staffing information
(1)Requirements
for hospitalsEach participating hospital shall—
(A)post daily for
each shift, in a clearly visible place, a document that specifies in a uniform
manner (as prescribed by the Secretary) the current number of licensed and
unlicensed nursing staff directly responsible for patient care in each unit of
the hospital, identifying specifically the number of registered nurses;
(B)upon request,
make available to the public—
(i)the nursing staff
information described in subparagraph (A);
(ii)a detailed
written description of the hospital-wide staffing plan implemented by the
hospital pursuant to subsection (a); and
(iii)not later than
90 days after the date on which an evaluation is carried out by the Committee
under subsection (b)(3)(B)(ii), a copy of such evaluation; and
(C)not less
frequently than quarterly, submit to the Secretary in a uniform manner (as
prescribed by the Secretary) the nursing staff information described in
subparagraph (A) through electronic data submission.
(2)Secretarial
responsibilitiesThe Secretary shall—
(A)make the
information submitted pursuant to paragraph (1)(C) publicly available in a
comprehensible format (as described in subsection (e)(2)(D)(ii)), including by
publication on the Hospital Compare Internet website of the Department of
Health and Human Services; and
(B)provide for the
auditing of such information for accuracy as a part of the process of
determining whether the participating hospital is in compliance with the
conditions of its agreement with the Secretary under section 1866, including
under subsection (a)(1)(Y) of such section.
(e)Recordkeeping;
collection and reporting of quality data; evaluation
(1)Each
participating hospital shall maintain for a period of at least 3 years (or, if
longer, until the conclusion of any pending enforcement activities) such
records as the Secretary deems necessary to determine whether the hospital has
implemented a hospital-wide staffing plan for nursing services pursuant to
subsection (a).
(2)Collection and
reporting of quality data on nursing services
(A)The Secretary shall require the collection, aggregation,
maintenance, and reporting of quality data relating to nursing services
furnished by each participating hospital.
(B)In carrying out this paragraph, the Secretary shall use
only quality measures for nursing-sensitive care that are endorsed by the
entity with a contract under section 1890(a).
(C)Use of
qualified third party entities for collection and submission of data
(i)A participating hospital may enter into agreements with
third party entities that have demonstrated expertise in the collection and
submission of quality data on nursing services to collect, aggregate, maintain,
and report the quality data of the hospital pursuant to subparagraph
(A).
(ii)Nothing
in clause (i) shall be construed to excuse or exempt a participating hospital
that has entered into an agreement described in such clause from compliance
with requirements for quality data collection, aggregation, maintenance, and
reporting imposed under this paragraph.
(D)Reporting of
quality data
(i)Publication on
Hospital Compare WebsiteSubject to the succeeding provisions of
this subparagraph, the Secretary shall make the data submitted pursuant to
subparagraph (A) publicly available, including by publication on the Hospital
Compare Internet website of the Department of Health and Human Services.
(ii)Data made available to the public under clause (i) shall
be presented in a clearly understandable format that permits consumers of
hospital services to make meaningful comparisons among hospitals, including
concise explanations in plain English of how to interpret the data, of the
difference in types of nursing staff, of the relationship between nurse
staffing levels and quality of care, and of how nurse staffing may vary based
on patient case mix.
(iii)Opportunity
to correct errorsThe Secretary shall establish a process under
which participating hospitals may review data submitted to the Secretary
pursuant to subparagraph (A) to correct errors, if any, contained in that data
submission before making the data available to the public under clause
(i).
(3)The Secretary shall provide for the analysis of quality data
collected from participating hospitals under paragraph (2) in order to evaluate
the effect of hospital-wide staffing plans for nursing services implemented
pursuant to subsection (a) on—
(A)patient outcomes
that are nursing sensitive (such as pressure ulcers, fall occurrence, falls
resulting in injury, length of stay, and central line catheter infections);
and
(B)nursing workforce
safety and retention (including work-related injury, staff skill mix, nursing
care hours per patient day, vacancy and voluntary turnover rates, overtime
rates, use of temporary agency personnel, and nurse satisfaction).
(f)A nurse may refuse to accept an assignment as a nurse
in a participating hospital, or in a unit of a participating hospital,
if—
(1)the assignment is
in violation of the hospital-wide staffing plan for nursing services
implemented pursuant to subsection (a); or
(2)the nurse is not
prepared by education, training, or experience to fulfill the assignment
without compromising the safety of any patient or jeopardizing the license of
the nurse.
(g)
(1)The
Secretary shall enforce the requirements and prohibitions of this section in
accordance with the succeeding provisions of this subsection.
(2)Procedures for
receiving and investigating complaintsThe Secretary shall
establish procedures under which—
(A)any person may
file a complaint that a participating hospital has violated a requirement of or
a prohibition under this section; and
(B)such complaints
are investigated by the Secretary.
(3)Except
as provided in paragraph (5), if the Secretary determines that a participating
hospital has violated a requirement of this section, the Secretary—
(A)shall require the
hospital to establish a corrective action plan to prevent the recurrence of
such violation; and
(B)may impose civil
money penalties under paragraph (4).
(4)
(A)In addition to any other penalties prescribed by law, the
Secretary may impose a civil money penalty of not more than $10,000 for each
knowing violation of a requirement of this section, except that the Secretary
shall impose a civil money penalty of more than $10,000 for each such violation
in the case of a participating hospital that the Secretary determines has a
pattern or practice of such violations (with the amount of such additional
penalties being determined in accordance with a schedule or methodology
specified in regulations).
(B)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.
(C)Public notice
of violations
(i)The Secretary shall publish on an appropriate Internet
website of the Department of Health and Human Services the names of
participating hospitals on which civil money penalties have been imposed under
this section, the violation for which the penalty was imposed, and such
additional information as the Secretary determines appropriate.
(ii)With respect to a participating hospital that had a
change in ownership, as determined by the Secretary, penalties imposed on the
hospital while under previous ownership shall no longer be published by the
Secretary on such Internet website after the 1-year period beginning on the
date of the change in ownership.
(5)Penalty for
failure to collect and report quality data on nursing services
(A)In the case of a participating hospital that fails to
comply with requirements under subsection (e)(2) to collect, aggregate,
maintain, and report quality data relating to nursing services furnished by the
hospital, instead of the remedies described in paragraph (3), the provisions of
subparagraph (B) shall apply with respect to each such failure of the
participating hospital.
(B)In
the case of a failure by a participating hospital to comply with the
requirements under subsection (e)(2) for a year, each such failure shall be
deemed to be a failure to submit data required under section 1833(t)(17)(A),
section 1886(b)(3)(B)(viii), section 1886(j)(7)(A), or section 1886(m)(5)(A),
as the case may be, with respect to the participating hospital involved for
that year.
(h)Whistleblower
protections
(1)Prohibition of
discrimination and retaliationA participating hospital shall not
discriminate or retaliate in any manner against any patient or employee of the
hospital because that patient or employee, or any other person, has presented a
grievance or complaint, or has initiated or cooperated in any investigation or
proceeding of any kind, relating to—
(A)the hospital-wide
staffing plan for nursing services developed and implemented under this
section; or
(B)any right, other
requirement or prohibition under this section, including a refusal to accept an
assignment described in subsection (f).
(2)Relief for
prevailing employeesAn employee of a participating hospital who
has been discriminated or retaliated against in employment in violation of this
subsection may initiate judicial action in a United States district court and
shall be entitled to reinstatement, reimbursement for lost wages, and work
benefits caused by the unlawful acts of the employing hospital. Prevailing
employees are entitled to reasonable attorney's fees and costs associated with
pursuing the case.
(3)Relief for
prevailing patientsA patient who has been discriminated or
retaliated against in violation of this subsection may initiate judicial action
in a United States district court. A prevailing patient shall be entitled to
liquidated damages of $5,000 for a violation of this statute in addition to any
other damages under other applicable statutes, regulations, or common law.
Prevailing patients are entitled to reasonable attorney's fees and costs
associated with pursuing the case.
(4)No action may be brought under paragraph (2) or (3) more
than 2 years after the discrimination or retaliation with respect to which the
action is brought.
(5)Treatment of
adverse employment actionsFor purposes of this
subsection—
(A)an adverse
employment action shall be treated as discrimination or retaliation; and
(B)the term
adverse employment action includes—
(i)the failure to
promote an individual or provide any other employment-related benefit for which
the individual would otherwise be eligible;
(ii)an adverse
evaluation or decision made in relation to accreditation, certification,
credentialing, or licensing of the individual; and
(iii)a personnel
action that is adverse to the individual concerned.
(i)Relationship to
State lawsNothing in this section shall be construed as
exempting or relieving any person from any liability, duty, penalty, or
punishment provided by the law of any State or political subdivision of a
State, other than any such law which purports to require or permit any action
prohibited under this title.
(j)Relationship to
conduct prohibited under the national labor relations Act or other collective
bargaining lawsNothing in this section shall be construed
as—
(1)permitting
conduct prohibited under the National Labor Relations Act or under any other
Federal, State, or local collective bargaining law; or
(2)preempting,
limiting, or modifying a collective bargaining agreement entered into by a
participating hospital.
(k)
(1)The Secretary shall promulgate such regulations as are
appropriate and necessary to implement this section.
(2)
(A)Except as provided in subparagraph (B), as soon as
practicable but not later than 2 years after the date of the enactment of this
section, a participating hospital shall have implemented a hospital-wide
staffing plan for nursing services under this section.
(B)Special rule
for rural hospitalsIn the case of a participating hospital
located in a rural area (as defined in section 1886(d)(2)(D)), such
participating hospital shall have implemented a hospital-wide staffing plan for
nursing services under this section as soon as practicable but not later than 4
years after the date of the enactment of this section.
(l)In
this section:
(1)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.
(2)The term participating hospital means a
hospital (as defined in section 1861(e)) that has entered into a provider
agreement under section 1866.
(3)The
term person means one or more individuals, associations,
corporations, unincorporated organizations, or labor unions.
(4)The term registered nurse means an individual
who has been granted a license to practice as a registered nurse in at least 1
State.
(5)The
term shift means a scheduled set of hours or duty period to be
worked at a participating hospital.
(6)The
term unit means, with respect to a hospital, an organizational
department or separate geographic area of a hospital, including a burn unit, a
labor and delivery room, a post-anesthesia service area, an emergency
department, an operating room, a pediatric unit, a stepdown or intermediate
care unit, a specialty care unit, a telemetry unit, a general medical care
unit, a subacute care unit, and a transitional inpatient care
unit.
.