[Congressional Record Volume 151, Number 85 (Thursday, June 23, 2005)]
[Senate]
[Pages S7301-S7303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORZINE (for himself, Mr. Bingaman, and Ms. Landrieu):
  S. 1297. A bill to amend title XVIII of the Social Security Act to 
reduce the work hours and increase the supervision of resident 
physicians to ensure the safety of patients and resident-physicians 
themselves; to the Committee on Finance.
  Mr. CORZINE. Mr. President, I rise today to reintroduce my 
legislation, the Patient and Physician Safety and Protection Act of 
2005, to limit medical resident work hours to 80 hours a week and to 
provide real protections for patients and resident physicians who are 
negatively affected by excessive work hours. I feel strongly that as 
Congress begins to consider proposals to reduce medical malpractice 
premiums and improve quality of care, we must consider the role that 
excessive work hours play in exacerbating medical liability problems 
and reducing quality of care.
  It is very troubling that hospitals across the Nation are requiring 
young doctors to work 36 hour shifts and as many as 120 hours a week in 
order to complete their residency programs. These long hours lead to a 
deterioration of cognitive function similar to the effects of blood 
alcohol levels of 0.1 percent. This is a level of cognitive impairment 
that would make these doctors unsafe to drive--yet these physicians are 
not only allowed but in fact are required to care for patients and 
perform procedures on patients under these conditions. In fact, a study 
by Harvard Medical School researchers published in the October 28, 2004 
issue of the New England Journal of Medicine found that medical 
residents made 35.9 percent more serious medical errors when they 
worked extended shifts of more than 24 hours.
  The Patient and Physician Safety and Protection Act of 2005 will 
limit medical resident work hours to 80 hours a week. Not 40 hours or 
60 hours--80 hours a week. It is hard to argue that this standard is 
excessively strict. In fact, it is unconscionable that we now have 
resident physicians, or any physicians for that matter, caring for very 
sick patients 120 hours a week and 36 hours straight with fewer than 10 
hours between shifts. This is an outrageous violation of a patient's 
right to quality care.
  In addition to limiting work hours to 80 hours week, my bill limits 
the length of any one shift to 24 consecutive hours, while allowing for 
up to three hours of patient transition time, and limits the length of 
an emergency room shift to 12 hours. The bill also ensures that 
residents have at least one out of seven days off and `on-call' shifts 
no more often than every third night.

  Since I first introduced the Patient and Physician Safety and 
Protection Act in the 107th Congress, the medical community and the 
Accreditation Council for Graduate Medical Education, ACGME, 
specifically have taken critical steps to address the problem of 
excessive work hours. On July 1, 2003, the ACGME issued resident work-
hour guidelines aimed at addressing this important issue. While I 
commend ACGME leadership for taking the initiative, I remain very 
concerned that the ACGME's policy lacks the enforcement mechanisms that 
are essential to ensure compliance with the new work hour rules. The 
ACGME's only sanction against hospitals that overwork residents or 
provide inadequate supervision is the threat of lost accreditation of 
residency programs. Medical residents who have already ``matched'' into 
a program and invested years there are understandably reluctant to 
report violations that might result in the closure of their residency. 
Furthermore, the ACGME usually gives hospital administrators 90-100 
days notice before inspecting a residency program. While the ACGME 
policy establishes more stringent work hours regulations, it fails to 
create effective enforcement and oversight tools. These rules are 
meaningless without enforcement mechanisms.
  That is why Federal legislation is necessary. The Patient and 
Physician Safety and Protection Act of 2005 not only recognizes the 
problem of excessive work hours, but also creates strong enforcement 
mechanisms. The bill also provides funding support to teaching 
hospitals to implement new work hour standards. Without enforcement and 
financial support, efforts to reduce work hours are not likely to be 
successful.
  Finally, my legislation provides meaningful enforcement mechanisms 
that will protect the identity of resident physicians who file 
complaints about work hour violations. The ACGME's guidelines do not 
contain any whistleblower protections for residents that seek to report 
program violations. Without this important protection, residents will 
be reluctant to report these violations, which in turn will weaken 
enforcement.
  My legislation also makes compliance with these work hour 
requirements a condition of Medicare participation. Each year, Congress 
provides $8 billion to teaching hospitals to train new physicians. 
While Congress must continue to vigorously support adequate funding so 
that teaching hospitals are able to carryout this important public 
service, these hospitals must also make a commitment to ensuring safe 
work conditions for these physicians and providing the highest quality 
of care to the patients they treat.
  In closing I would like to read a quote from an Orthopedic Surgery 
Resident from Northern California, which I think illustrates why we 
need this legislation.
  I quote, ``I was operating post-call after being up for over 36 hours 
and was holding retractors. I literally fell asleep standing up and 
nearly face-planted into the wound. My upper arm hit the side of the 
gurney, and I caught myself before I fell to the floor. I nearly put my 
face in the open wound, which would have contaminated the entire field 
and could have resulted in an infection for the patient.''
  This is a very serious problem that must be addressed before medical 
errors like this occur. I hope every member of the Senate will consider 
this legislation and the potential it has to reduce medical errors, 
improve patient care, and create a safer working environment for the 
backbone of our Nation's healthcare system.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1297

       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 ``Patient and Physician Safety 
     and Protection Act of 2005''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The Federal Government, through the medicare program, 
     pays approximately $8,000,000,000 per year solely to train 
     resident-physicians in the United States, and as a result, 
     has an interest in assuring the safety of patients treated by 
     resident-physicians and the safety of resident-physicians 
     themselves.
       (2) Resident-physicians spend as much as 30 to 40 percent 
     of their time performing activities not related to the 
     educational mission of training competent physicians.
       (3) The excessive numbers of hours worked by resident-
     physicians is inherently dangerous for patient care and for 
     the lives of resident-physicians.
       (4) The scientific literature has consistently demonstrated 
     that the sleep deprivation of the magnitude seen in residency 
     training programs leads to cognitive impairment.
       (5) A substantial body of research indicates that excessive 
     hours worked by resident-physicians lead to higher rates of 
     medical error, motor vehicle accidents, depression, and 
     pregnancy complications.

[[Page S7302]]

       (6) The medical community has not adequately addressed the 
     issue of excessive resident-physician work hours.
       (7) The Federal Government has regulated the work hours of 
     other industries when the safety of employees or the public 
     is at risk.
       (8) The Institute of Medicine has found that as many as 
     98,000 deaths occur annually due to medical errors and has 
     suggested that 1 necessary approach to reducing errors in 
     hospitals is reducing the fatigue of resident-physicians.

     SEC. 3. REVISION OF MEDICARE HOSPITAL CONDITIONS OF 
                   PARTICIPATION REGARDING WORKING HOURS OF 
                   MEDICAL RESIDENTS, INTERNS, AND FELLOWS.

       (a) In General.--Section 1866 of the Social Security Act 
     (42 U.S.C. 1395cc) is amended--
       (1) in subsection (a)(1)--
       (A) by striking ``and'' at the end of subparagraph (U);
       (B) by striking the period at the end of subparagraph (V) 
     and inserting ``, and''; and
       (C) by inserting after subparagraph (V) the following new 
     subparagraph:
       ``(W) in the case of a hospital that uses the services of 
     postgraduate trainees (as defined in subsection (k)(4)), to 
     meet the requirements of subsection (k).''; and
       (2) by adding at the end the following new subsection:
       ``(k)(1)(A) In order that the working conditions and 
     working hours of postgraduate trainees promote the provision 
     of quality medical care in hospitals, as a condition of 
     participation under this title, each hospital shall establish 
     the following limits on working hours for postgraduate 
     trainees:
       ``(i) Subject to subparagraphs (B) and (C), postgraduate 
     trainees may work no more than a total of 24 hours per shift.
       ``(ii) Subject to subparagraph (C), postgraduate trainees 
     may work no more than a total of 80 hours per week.
       ``(iii) Subject to subparagraph (C), postgraduate 
     trainees--
       ``(I) shall have at least 10 hours between scheduled 
     shifts;
       ``(II) shall have at least 1 full day out of every 7 days 
     off and 1 full weekend off per month;
       ``(III) subject to subparagraph (B), who are assigned to 
     patient care responsibilities in an emergency department 
     shall work no more than 12 continuous hours in that 
     department;
       ``(IV) shall not be scheduled to be on call in the hospital 
     more often than every third night; and
       ``(V) shall not engage in work outside of the educational 
     program that interferes with the ability of the postgraduate 
     trainee to achieve the goals and objectives of the program or 
     that, in combination with the program working hours, exceeds 
     80 hours per week.
       ``(B)(i) Subject to clause (ii), the Secretary shall 
     promulgate such regulations as may be necessary to ensure 
     quality of care is maintained during the transfer of direct 
     patient care from 1 postgraduate trainee to another at the 
     end of each shift.
       ``(ii) Such regulations shall ensure that, except in the 
     case of individual patient emergencies, the period in which a 
     postgraduate trainee is providing for the transfer of direct 
     patient care (as referred to in clause (i)) does not extend 
     such trainee's shift by more than 3 hours beyond the 24-hour 
     period referred to in subparagraph (A)(i) or the 12-hour 
     period referred to in subparagraph (A)(iii)(III), as the case 
     may be.
       ``(C) The work hour limitations under subparagraph (A) and 
     requirements of subparagraph (B) shall not apply to a 
     hospital during a state of emergency declared by the 
     Secretary that applies with respect to that hospital.
       ``(2) The Secretary shall promulgate such regulations as 
     may be necessary to monitor and supervise postgraduate 
     trainees assigned patient care responsibilities as part of an 
     approved medical training program, as well as to assure 
     quality patient care.
       ``(3) Each hospital shall inform postgraduate trainees of--
       ``(A) their rights under this subsection, including methods 
     to enforce such rights (including so-called whistle-blower 
     protections); and
       ``(B) the effects of their acute and chronic sleep 
     deprivation both on themselves and on their patients.
       ``(4) For purposes of this subsection, the term 
     `postgraduate trainee' means a postgraduate medical resident, 
     intern, or fellow.''.
       (b) Designation.--
       (1) In general.--The Secretary of Health and Human Services 
     (in this subsection referred to as the ``Secretary'') shall 
     designate an individual within the Department of Health and 
     Human Services to handle all complaints of violations that 
     arise from a postgraduate trainee (as defined in paragraph 
     (4) of section 1886(k) of the Social Security Act, as added 
     by subsection (a), who reports that the hospital operating 
     the medical residency training program for which the trainee 
     is enrolled is in violation of the requirements of such 
     section.
       (2) Grievance rights.--A postgraduate trainee may file a 
     complaint with the Secretary concerning a violation of the 
     requirements under such section 1886(k). Such a complaint may 
     be filed anonymously. The Secretary may conduct an 
     investigation and take corrective action with respect to such 
     a violation.
       (3) Enforcement.--
       (A) Civil money penalty enforcement.--Subject to 
     subparagraph (B), any hospital that violates the requirements 
     under such section 1886(k) is subject to a civil money 
     penalty not to exceed $100,000 for each medical residency 
     training program operated by the hospital in any 6-month 
     period. The provisions of section 1128A of the Social 
     Security Act (other than subsections (a) and (b)) shall apply 
     to civil money penalties under this paragraph in the same 
     manner as they apply to a penalty or proceeding under section 
     1128A(a) of such Act.
       (B) Corrective action plan.--The Secretary shall establish 
     procedures for providing a hospital that is subject to a 
     civil monetary penalty under subparagraph (A) with an 
     opportunity to avoid such penalty by submitting an 
     appropriate corrective action plan to the Secretary.
       (4) Disclosure of violations and annual reports.--The 
     individual designated under paragraph (1) shall--
       (A) provide for annual anonymous surveys of postgraduate 
     trainees to determine compliance with the requirements under 
     such section 1886(k) and for the disclosure of the results of 
     such surveys to the public on a medical residency training 
     program specific basis;
       (B) based on such surveys, conduct appropriate on-site 
     investigations;
       (C) provide for disclosure to the public of violations of 
     and compliance with, on a hospital and medical residency 
     training program specific basis, such requirements; and
       (D) make an annual report to Congress on the compliance of 
     hospitals with such requirements, including providing a list 
     of hospitals found to be in violation of such requirements.
       (c) Whistleblower Protections.--
       (1) In general.--A hospital covered by the requirements of 
     section 1866(k) of the Social Security Act, as added by 
     subsection (a), shall not penalize, discriminate, or 
     retaliate in any manner against an employee with respect to 
     compensation, terms, conditions, or privileges of employment, 
     who in good faith (as defined in paragraph (2)), individually 
     or in conjunction with another person or persons--
       (A) reports a violation or suspected violation of such 
     requirements to a public regulatory agency, a private 
     accreditation body, or management personnel of the hospital;
       (B) initiates, cooperates, or otherwise participates in an 
     investigation or proceeding brought by a regulatory agency or 
     private accreditation body concerning matters covered by such 
     requirements;
       (C) informs or discusses with other employees, with a 
     representative of the employees, with patients or patient 
     representatives, or with the public, violations or suspected 
     violations of such requirements; or
       (D) otherwise avails himself or herself of the rights set 
     forth in such section or this subsection.
       (2) Good faith defined.--For purposes of this subsection, 
     an employee is deemed to act ``in good faith'' if the 
     employee reasonably believes--
       (A) that the information reported or disclosed is true; and
       (B) that a violation has occurred or may occur.
       (d) Effective Date.--The amendments made by subsection (a) 
     shall take effect on the first July 1 that begins at least 1 
     year after the date of enactment of this Act.

     SEC. 4. ADDITIONAL FUNDING FOR HOSPITAL COSTS.

       There are hereby appropriated to the Secretary of Health 
     and Human Services such amounts as may be required to provide 
     for additional payments to hospitals for their reasonable 
     additional, incremental costs incurred in order to comply 
     with the requirements imposed by this Act (and the amendments 
     made by this Act).
  Mr. ENSIGN. Mr. President, I come before the Senate today about a 
very serious issue that is threatening the disbursal of justice in the 
western United States.
  My home State of Nevada, along with eight other States, has been part 
of an unbelievable population boom over the last several decades. As a 
result, we face the frustrating challenges of increased traffic 
congestion, crowded schools, and a shortage of many services. However, 
there is one consequence of that growth that has reached a critical 
level because it is delaying and denying justice for too many 
Americans.
  That is the situation with the Court of Appeals for the Ninth 
Circuit. The largest circuit in the country, it encompasses 20 percent 
of the entire Nation's population. The Ninth Circuit has the highest 
cases per jurist ratio. And the trend is not changing. The Circuit is 
just too large. Each of the States covered by the Ninth Circuit saw 
population growths over the last decade, and three of the States--
Nevada, Idaho, and Arizona--are in the top five in the country for 
population growth. Something must be done, or the Ninth Circuit will 
continue to bust at the seams.
  That is why I am introducing legislation today that would divide the 
current Ninth Circuit into 3 new circuits. The new Ninth Circuit would 
include California, Hawaii, Guam, and the Northern Marianas Islands. 
The new

[[Page S7303]]

Twelfth Circuit would be comprised of Arizona, Nevada, Idaho, and 
Montana. And the new Thirteenth Circuit would contain Oregon, 
Washington, and Alaska.
  This splitting of the Ninth Circuit is absolutely necessary if the 
residents of Nevada and the other western states are to have equal 
access to justice. Right now, citizens living under the Ninth Circuit 
face incomparable delays and judicial inconsistencies. Recently, the 
Ninth Circuit had more cases pending for more than one year than all 
other circuits combined.
  And because of the sheer magnitude of the number of judges in the 
Ninth Circuit, it has become increasingly difficult for judges to track 
the opinions of the other judges in the circuit. In fact, it happened 
that on the same day, 2 different 3-judge panels in the Ninth Circuit 
issued different legal standards to resolve the same issue. Can you 
imagine the headache this causes for district judges who are supposed 
to follow the standard set by the Ninth Circuit? It compromises the 
system of justice that is the cornerstone of our democracy.
  As a Nevadan, I am also angered by some of the decisions made by the 
Ninth Circuit Court. I know how Nevadans feel about issues such as the 
Pledge of Allegiance. Like me, they were outraged that the phrase 
``under God'' was ruled unconstitutional by the Ninth Circuit. This 
wasn't the only case of the Ninth Circuit misinterpreting the 
Constitution and our laws. In 1997 alone, the United States Supreme 
Court overruled 27 out of 28 Ninth Circuit decisions. I wish I could 
say that was just an ``off' year for the court, but their track record 
wasn't much better in the 6 years before that.
  Rather than continue down this path of judicial destruction, it is 
time to use a forward looking approach to the access of justice in the 
western United States. I urge my colleagues to join me in our 
Constitutional duty to establish courts for the sake of justice in this 
country. Failure to act will cost the citizens of my state, and many 
other western states, dearly.
                                 ______