S 58
112th CONGRESS
1st Session
S. 58
To amend title XVIII of the Social Security Act to provide
for patient protection by establishing safe nurse staffing levels at
certain Medicare providers, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 25 (legislative day, January 5), 2011
Mr. INOUYE 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 establishing safe nurse staffing levels at
certain Medicare providers, and for other purposes.
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
2011'.
SEC. 2. FINDINGS.
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.
SEC. 3. ESTABLISHMENT OF SAFE NURSE STAFFING LEVELS 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 (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) Requirements- 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:
`NURSE STAFFING REQUIREMENTS FOR MEDICARE PARTICIPATING HOSPITALS
`Sec. 1899B. (a) Implementation of Nurse Staffing Plan-
`(1) IN GENERAL- 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 COMMITTEE- The 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) ESTABLISHMENT- Each participating hospital shall establish a
hospital nurse staffing committee (hereinafter in this section referred
to as the `Committee').
`(2) COMPOSITION- A Committee established pursuant to this subsection
shall be composed of members as follows:
`(A) MINIMUM 55 PERCENT NURSE PARTICIPATION- Not 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 MANAGERS- The Committee shall include
members who are hospital nurse managers.
`(C) INCLUSION OF NURSES FROM SPECIALTY UNITS- The 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) OTHER HOSPITAL PERSONNEL- The Committee shall include such
other personnel of the hospital as the hospital determines to be
appropriate.
`(A) DEVELOPMENT OF STAFFING PLAN- The 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 PLAN- The 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) ADDITIONAL DUTIES- 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) PLAN REQUIREMENTS- 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) LIMITATION- 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 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);
`(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 RESPONSIBILITIES- The 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) RECORDKEEPING- 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) IN GENERAL- The Secretary shall require the collection, aggregation,
maintenance, and reporting of quality data relating to nursing services
furnished by each participating hospital.
`(B) USE OF ENDORSED MEASURES- 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) IN GENERAL- 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) CONSTRUCTION- 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 WEBSITE- Subject 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) COMPREHENSIBLE FORMAT- 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 ERRORS- The 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) EVALUATION OF DATA- 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) Refusal of Assignment- 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.
`(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 of or a prohibition under this section;
and
`(B) such complaints are investigated by the Secretary.
`(3) REMEDIES- 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) 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 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 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) 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 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 GENERAL- 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) PENALTY- 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 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--
`(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 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 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 Laws- Nothing 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 Laws- Nothing 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.
`(1) IN GENERAL- The Secretary shall promulgate such regulations as
are appropriate and necessary to implement this section.
`(A) IN GENERAL- 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 HOSPITALS- In 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) Definitions- In this section:
`(1) DECLARED STATE OF EMERGENCY- The 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) PARTICIPATING HOSPITAL- The term `participating hospital' means
a hospital (as defined in section 1861(e)) that has entered into a
provider agreement under section 1866.
`(3) PERSON- The term `person' means one or more individuals, associations,
corporations, unincorporated organizations, or labor unions.
`(4) 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.
`(5) SHIFT- The term `shift' means a scheduled set of hours or duty
period to be worked at a participating hospital.
`(6) UNIT- 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.'.
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