[Congressional Record Volume 155, Number 1 (Tuesday, January 6, 2009)]
[Senate]
[Pages S59-S61]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. INOUYE:
  S. 54. A bill to amend title XVIII of the Social Security Act to 
provide for patient protection by establishing minimum nurse staffing 
ratios at certain Medicare providers, and for other purposes; to the 
Committee on Finance.
  Mr. INOUYE. Mr. President, today I am, again, reintroducing the 
Registered Nurse Safe Staffing Act. For over four decades I have been a 
committed supporter of nurses and the delivery of safe patient care. 
While enforceable regulations will help to ensure patient safety, the 
complexity and variability of today's hospitals require that staffing 
patters be determined at the hospital and unit level, with the 
professional input of registered nurses. More than a decade of research 
demonstrates that nurse staff levels and the skill mix of nursing staff 
directly affect the clinical outcomes of hospitalized patients. Studies 
show that when there are more registered nurses, there are lower 
mortality rates, shorter lengths of stay, reduced costs, and fewer 
complications.
  A study published in the Journal of the American Medical Association 
found that the risks of patient mortality rose by 7 percent for every 
additional patient added to the average nurse's workload. In the midst 
of a nursing shortage and increasing financial pressures, hospitals 
often find it difficult to maintain adequate staffing.

[[Page S60]]

While nursing research indicates that adequate registered nurse 
staffing is vital to the health and safety of patients, there is no 
standardized public reporting mechanism, nor enforcement of adequate 
staffing plans. The only regulations addressing nursing staff exists 
vaguely in Medicare Conditions of Participation which states: ``The 
nursing service must have an adequate number of licensed registered 
nurses, licensed practice, vocational, nurses, and other personnel to 
provide nursing care to all patients as needed''.
  This bill will require Medicare Participating Hospitals to develop 
and maintain reliable and valid systems to determine sufficient 
registered nurse staffing. Given the demands that the healthcare 
industry faces today, it is our responsibility to ensure that patients 
have access to adequate nursing care. However, we must ensure that the 
decisions by which care is provided are made by the clinical experts, 
the registered nurses caring for these patients. Support of this bill 
supports our Nation's nurses during a critical shortage, but more 
importantly, works to ensure the safety of their patients.
  Mr. President. I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 54

       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 ``Registered Nurse Safe 
     Staffing Act of 2009''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) There are hospitals throughout the United States that 
     have inadequate staffing of registered nurses to protect the 
     well-being and health of the patients.
       (2) Studies show that the health of patients in hospitals 
     is directly proportionate to the number of registered nurses 
     working in the hospital.
       (3) There is a critical shortage of registered nurses in 
     the United States.
       (4) The effect of that shortage is revealed in unsafe 
     staffing levels in hospitals.
       (5) Patient safety is adversely affected by these unsafe 
     staffing levels, creating a public health crisis.
       (6) 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.
       (7) As a payer for inpatient and outpatient hospital 
     services for individuals entitled to benefits under the 
     Medicare program established under title XVIII of the Social 
     Security Act, the Federal Government has a compelling 
     interest in promoting the safety of such individuals by 
     requiring any hospital participating in such program to 
     establish minimum safe staffing levels for registered nurses.

     SEC. 3. ESTABLISHMENT OF MINIMUM STAFFING RATIOS BY MEDICARE 
                   PARTICIPATING HOSPITALS.

       (a) Requirement of Medicare Provider Agreement.--Section 
     1866(a)(1) of the Social Security Act (42 U.S.C. 
     1395cc(a)(1)) is amended--
       (1) in subparagraph (U), by striking ``and'' at the end;
       (2) in subparagraph (V), by striking the period at the end 
     and inserting ``, and''; and
       (3) by inserting after subparagraph (V) the following new 
     subparagraph:
       ``(W) in the case of a hospital, to meet the requirements 
     of section 1899.''.
       (b) Requirements.--Title XVIII of the Social Security Act 
     is amended by inserting after section 1889 the following new 
     section:


      ``staffing requirements for medicare participating hospitals

       ``Sec. 1899.  (a) Establishment of Staffing System.--
       ``(1) In general.--Each participating hospital shall adopt 
     and implement a staffing system that ensures a number of 
     registered nurses on each shift and in each unit of the 
     hospital to ensure appropriate staffing levels for patient 
     care.
       ``(2) Staffing system requirements.--Subject to paragraph 
     (3), a staffing system adopted and implemented under this 
     section shall--
       ``(A) be based upon input from the direct care-giving 
     registered nurse staff 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, with 
     appropriate consideration given to admissions, discharges, 
     and transfers during each shift;
       ``(C) account for contextual issues affecting staffing and 
     the delivery of care, including architecture and geography of 
     the environment and available technology;
       ``(D) reflect the level of preparation and experience of 
     those providing care;
       ``(E) account for staffing level effectiveness or 
     deficiencies in related health care classifications, 
     including but not limited to, certified nurse assistants, 
     licensed vocational nurses, licensed psychiatric technicians, 
     nursing assistants, aides, and orderlies;
       ``(F) reflect staffing levels recommended by specialty 
     nursing organizations;
       ``(G) establish upwardly adjustable registered nurse-to-
     patient ratios based upon registered nurses' assessment of 
     patient acuity and existing conditions;
       ``(H) provide that a registered nurse shall not be assigned 
     to work in a particular unit without first having established 
     the ability to provide professional care in such unit; and
       ``(I) be based on methods that assure validity and 
     reliability.
       ``(3) Limitation.--A staffing system adopted and 
     implemented under paragraph (1) may not--
       ``(A) set registered-nurse levels below those required by 
     any Federal or State law or regulation; or
       ``(B) utilize any minimum registered nurse-to-patient ratio 
     established pursuant to paragraph (2)(G) as an upper limit on 
     the staffing of the hospital to which such ratio applies.
       ``(b) Reporting, and Release to Public, of Certain Staffing 
     Information.--
       ``(1) Requirements for hospitals.--Each 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); and
       ``(ii) a detailed written description of the staffing 
     system established by the hospital pursuant to subsection 
     (a); and
       ``(C) 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 not less frequently than quarterly.
       ``(2) Secretarial responsibilities.--The Secretary shall--
       ``(A) make the information submitted pursuant to paragraph 
     (1)(C) publicly available, including by publication of such 
     information on the 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 an 
     institution is a hospital for purposes of this title.
       ``(c) Recordkeeping; Data Collection; Evaluation.--
       ``(1) Recordkeeping.--Each participating hospital shall 
     maintain for a period of at least 3 years (or, if longer, 
     until the conclusion of pending enforcement activities) such 
     records as the Secretary deems necessary to determine whether 
     the hospital has adopted and implemented a staffing system 
     pursuant to subsection (a).
       ``(2) Data collection on certain outcomes.--The Secretary 
     shall require the collection, maintenance, and submission of 
     data by each participating hospital sufficient to establish 
     the link between the staffing system established pursuant to 
     subsection (a) and--
       ``(A) patient acuity from maintenance of acuity data 
     through entries on patients' charts;
       ``(B) patient outcomes that are nursing sensitive, such as 
     patient falls, adverse drug events, injuries to patients, 
     skin breakdown, pneumonia, infection rates, upper 
     gastrointestinal bleeding, shock, cardiac arrest, length of 
     stay, and patient readmissions;
       ``(C) operational outcomes, such as work-related injury or 
     illness, vacancy and turnover rates, nursing care hours per 
     patient day, on-call use, overtime rates, and needle-stick 
     injuries; and
       ``(D) patient complaints related to staffing levels.
       ``(3) Evaluation.--Each participating hospital shall 
     annually evaluate its staffing system and establish minimum 
     registered nurse staffing ratios to assure ongoing 
     reliability and validity of the system and ratios. The 
     evaluation shall be conducted by a joint management-staff 
     committee comprised of at least 50 percent of registered 
     nurses who provide direct patient care.
       ``(d) Enforcement.--
       ``(1) Responsibility.--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 
     complaints.--The Secretary shall establish procedures under 
     which--
       ``(A) any person may file a complaint that a participating 
     hospital has violated a requirement or a prohibition of this 
     section; and
       ``(B) such complaints are investigated by the Secretary.
       ``(3) Remedies.--If the Secretary determines that a 
     participating hospital has violated a requirement of this 
     section, the Secretary--
       ``(A) shall require the facility to establish a corrective 
     action plan to prevent the recurrence of such violation; and
       ``(B) may impose civil money penalties under paragraph (4).
       ``(4) Civil money penalties.--
       ``(A) In general.--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

[[Page S61]]

     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) Procedures.--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) Internet website.--The Secretary shall publish on the 
     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) Change of ownership.--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 of such Internet website after the 
     1-year period beginning on the date of change in ownership.
       ``(e) Whistleblower Protections.--
       ``(1) Prohibition of discrimination and retaliation.--A 
     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 the staffing system or other requirements and 
     prohibitions of this section.
       ``(2) Relief for prevailing employees.--An 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 patients.--A 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) Limitation on actions.--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 actions.--For 
     purposes of this subsection--
       ``(A) an adverse employment action shall be treated as 
     retaliation or discrimination; 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.
       ``(f) Relationship to State Laws.--Nothing in this section 
     shall be construed as exempting or relieving any person from 
     any liability, duty, penalty, or punishment provided by any 
     present or future law of any State or political subdivision 
     of a State, other than any such law which purports to require 
     or permit the doing of any act which would be an unlawful 
     practice under this title.
       ``(g) Relationship To Conduct Prohibited Under the National 
     Labor Relations Act or Other Collective Bargaining Laws.--
     Nothing in this section shall be construed as permitting 
     conduct prohibited under the National Labor Relations Act or 
     under any other Federal, State, or local collective 
     bargaining law.
       ``(h) Regulations.--The Secretary shall promulgate such 
     regulations as are appropriate and necessary to implement 
     this section.
       ``(i) Definitions.--In this section:
       ``(1) Participating hospital.--The term `participating 
     hospital' means a hospital that has entered into a provider 
     agreement under section 1866.
       ``(2) Registered nurse.--The term `registered nurse' means 
     an individual who has been granted a license to practice as a 
     registered nurse in at least 1 State.
       ``(3) Unit.--The term `unit' of a hospital is an 
     organizational department or separate geographic area of a 
     hospital, such as 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.
       ``(4) Shift.--The term `shift' means a scheduled set of 
     hours or duty period to be worked at a participating 
     hospital.
       ``(5) Person.--The term `person' means 1 or more 
     individuals, associations, corporations, unincorporated 
     organizations, or labor unions.''.
       (c) Effective Date.--The amendments made by this section 
     shall take effect on January 1, 2010.
                                 ______