[Congressional Record Volume 155, Number 149 (Thursday, October 15, 2009)]
[Senate]
[Pages S10488-S10490]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FRANKEN:
  S. 1788. 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; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. FRANKEN. Mr. President, today I am introducing a bill to help 
keep our country's invaluable nurses and health care workers safe from 
debilitating injuries suffered on the job. This legislation will 
require workplace standards that eliminate the manual lifting of 
patients--the primary cause of musculoskeletal disorders in the health 
care profession. And I want to first thank my colleague in the House, 
Representative Conyers of Michigan's l4th District, for his leadership 
on this issue and for the impressive work he put into crafting this 
bill.
  When we think of dangerous working conditions, mines or construction 
sites might come to mind. But in fact, work performed in hospitals and 
nursing homes contributes to thousands of cases of musculoskeletal 
disorders in nurses and health care workers each year. These injuries 
require time away from work, and unfortunately, many workers suffering 
from chronic back injury are forced to leave the profession 
permanently. Nurses and health care workers deserve better--they 
shouldn't have to sacrifice their safety and their livelihood to help 
others, especially when many of these injuries could be prevented.
  The manual lifting of patients is the primary cause of 
musculoskeletal injuries, and can be eliminated with the use of lifting 
equipment. Many health care facilities already have this equipment 
available, and studies have shown that it reduces injuries to workers, 
increases safety for patients, and is a cost-effective investment over 
several years.
  This legislation would require the Department of Labor to propose 
standards for safe patient handling to prevent musculoskeletal 
disorders for health care workers, and eliminate manual lifting of 
patients through the use of lift equipment. It would also require 
health care facilities to develop safe patient handling plans and 
provide training on safe patient handling techniques.
  Under the bill, health care workers would have the right to refuse 
assignments that are not in compliance with safe patient handling 
standards and be protected from employer retaliation against workers 
who refuse these assignments or report violations.
  To help health care facilities to make this transition, the bill 
creates a new grant program for needy health care facilities that 
require financial assistance to purchase safe patient handling 
equipment.
  I urge my colleagues to support the Nurse and Health Care Worker 
Protection Act. All of us benefit from the services these professionals 
provide, and by passing this legislation, we can help ensure they are 
able to safely continue in their important careers.

[[Page S10489]]

  Mr. President, I ask unanimous consent that the text of this 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. 1788

       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

[[Page S10490]]

     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.
                                 ______