[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 4541 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 4541

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

                           September 8, 2020

  Mr. Merkley 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 ``Nurse Overtime and Patient Safety 
Act of 2020''.

SEC. 2. FINDINGS.

    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 Health 
        Services Research in October 2014 and a 2019 study from New 
        York University, document the following:
                    (A) Limits on work hours have long been found in 
                high-risk occupational settings where long work hours 
                can adversely affect safety and performance as well as 
                job satisfaction and quality of life.
                    (B) Regulations limiting work hours were first 
                instituted in the 1930s.
                    (C) Adoption of work hour regulations has been 
                slower in the health care sector.
                    (D) A review of the current literature indicates 
                that despite potential pitfalls of discontinuity in 
                care, regulated work hours for nurses improve 
                occupational and patient safety.
                    (E) The work year for registered nurses is 
                substantially longer than the national average by 200 
                work hours.
                    (F) When nurses with more than one position of 
                employment are taken into account, total nurse work 
                hours may be greater than the estimate above.
                    (G) Furthermore, because nurses frequently work 
                under a 12-hour shift schedule, they not only work 
                extended hours but also return to work often without 
                sufficient time for rest.
                    (H) Newly licensed nurses work an average of 39.4 
                hours a week, predominantly in 12-hour shifts.
                    (I) More than 13 percent of newly licensed nurses 
                report having a second paid job.
                    (J) New nurses prefer working the day shift, and 
                the preferred shift length is 12 hours.
                    (K) Twelve percent of nurses report working 
                mandatory overtime, and nearly half work voluntary 
                overtime at an average of three hours in a workweek.
            (3) Nurses working long hours often experience fatigue, 
        poor sleep quality, impaired vigilance, and lack of alertness, 
        which contributes to medical errors and results in other 
        consequences that compromise patient safety, even after 
        controlling for staffing levels and hospital characteristics.
            (4) Eighteen States have passed legislation or promulgated 
        regulations restricting mandatory overtime for 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 (X), by striking ``and'' at the 
                end;
                    (B) in subparagraph (Y), by striking the period and 
                inserting ``, and''; and
                    (C) by inserting after subparagraph (Y) the 
                following new subparagraph:
            ``(Z) to comply with the requirements of subsection (l) 
        (relating to limitations on mandatory overtime for nurses).''; 
        and
            (2) by adding at the end the following new subsection:
    ``(l) Limitations on Mandatory Overtime for Nurses.--For purposes 
of subsection (a)(1)(Z), the requirements of this subsection are the 
following:
            ``(1) Prohibition on mandatory overtime.--
                    ``(A) In general.--Except as provided in this 
                subsection, a provider of services shall not, directly 
                or indirectly, require a nurse to work--
                            ``(i) in excess of--
                                    ``(I) a previously scheduled work 
                                shift or duty period of the nurse, 
                                regardless of the length of the shift;
                                    ``(II) 48 hours in any workweek (as 
                                defined in section 778.105 of title 29, 
                                Code of Federal Regulations, or any 
                                successor regulation); or
                                    ``(III) 12 consecutive hours in a 
                                24-hour period; or
                            ``(ii) during the 10-hour period 
                        immediately following the 12th hour worked in a 
                        shift or duty period during a 24-hour period.
                    ``(B) Hours worked.--For purposes of subparagraph 
                (A), time spent by a nurse in the following shall be 
                included as hours worked:
                            ``(i) Required meetings or while receiving 
                        education or training.
                            ``(ii) On call or on standby when the nurse 
                        is required to be at the provider of services.
                            ``(iii) On call or on standby when the 
                        nurse is not required to be at the provider of 
                        services.
                    ``(C) Clarification regarding voluntary overtime.--
                Nothing in this subsection shall be construed to 
                preclude a nurse from volunteering to work overtime.
            ``(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 emergency or 
                disaster (as defined in paragraph (9)(E)) 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;
                            ``(ii) the duration of the work requirement 
                        does not extend past the earlier of--
                                    ``(I) the date on which the 
                                declared emergency or disaster ends; or
                                    ``(II) the date on which the 
                                provider's direct role in responding to 
                                the medical needs resulting from the 
                                declared emergency or disaster ends;
                            ``(iii) a staff vacancy for the next shift 
                        becomes known at the end of the current shift; 
                        and
                            ``(iv) there is potential harm to an 
                        assigned patient if the nursing staff member 
                        leaves the assignment or transfers care to 
                        another nursing staff member.
            ``(3) Whistleblower protections for nurses.--
                    ``(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 
                terminate or propose to terminate, 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 policy and requirements.--
                    ``(A) Requirement to develop a policy and 
                procedure.--Each provider of services shall develop a 
                policy and have in place procedures to ensure, at a 
                minimum, that--
                            ``(i) mandatory overtime, when required as 
                        described in paragraph (2)(B), is documented in 
                        writing; and
                            ``(ii) mandatory overtime policies and 
                        procedures are clearly written, provided to all 
                        new nursing staff and readily available to all 
                        nursing staff.
                    ``(B) 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 subsection.
                    ``(C) 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 regarding other rights, 
        remedies, and procedures.--Nothing in this subsection shall be 
        construed to alter or otherwise affect the rights, remedies, 
        and procedures affords to nurses under Federal, State, or local 
        laws or under the terms of collective bargaining agreements, 
        memorandums of understanding, or other agreements between such 
        employees and their employers.
            ``(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 (as 
                        defined in section 1861(mm)(1));
                            ``(v) an ambulatory surgical center;
                            ``(vi) a home health agency (as defined in 
                        section 1861(o));
                            ``(vii) a rehabilitation agency;
                            ``(viii) a clinic, including a rural health 
                        clinic (as defined in section 1861(aa)(2)); or
                            ``(ix) a Federally qualified health center 
                        (as defined in section 1861(aa)(4)).
                    ``(E) Declared emergency or disaster.--The term 
                `declared emergency or disaster' means a major disaster 
                or an emergency (as those terms are defined in section 
                102 of the Robert T. Stafford Disaster Relief and 
                Emergency Assistance Act (42 U.S.C. 5122)), or an 
                emergency or disaster as declared by a Governor of any 
                State or Indian Tribal government, but does not include 
                an 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.
            ``(10) Relationship to state law.--Nothing in this 
        subsection shall be construed to preempt any State law that 
        provides greater protections with respect to mandatory overtime 
        for nurses.''.
    (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(l) 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(l), as so 
        added.
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