109th CONGRESS
1st Session
S. 351
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
February 10, 2005
Mr. KENNEDY (for himself, Mr. KERRY, Mr. AKAKA, Mrs. BOXER, Mrs. CLINTON,
Mr. CORZINE, Mr. DODD, Mr. FEINGOLD, Mr. INOUYE, Mr. LAUTENBERG, Mr. LEVIN,
Mr. LIEBERMAN, Ms. MIKULSKI, Mr. SARBANES, and Mr. REED) 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 `Safe Nursing and Patient Care Act of 2005'.
SEC. 2. FINDINGS.
The 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 Journal of the American
Medical Association (in the October 23-30, 2002 issue), documents that higher
nurse staffing levels result in better patient outcomes. However, health
care facilities report substantial difficulties in recruiting and retaining
sufficient nursing staff, as evidenced by the fact that approximately 500,000
licensed nurses are not practicing nursing.
(3) Job dissatisfaction and overtime work are contributing to the departure
of nurses from their profession, as documented by the Government Accountability
Office in a July 2001 report. Yet, health care providers continue to make
use of mandatory overtime as a staffing model.
(4) The widespread practice of requiring nurses to work extended shifts
and forgo days off frequently causes nurses to provide care in a state of
fatigue which contributes to medical errors and results in other consequences
that compromise patient safety.
(5) The dangers with mandatory overtime are made clear by numerous studies.
A November 2003 Institute of Medicine report, Keeping Patients Safe: Transforming
the Work Environment of Nurses, concluded that limiting the number of hours
worked per day and consecutive days of work by nursing staff, as is done
in other safety-sensitive industries, is a fundamental safety precaution.
The report went on to specifically recommend that working more than 12 hours
in any 24-hour period and more than 60 hours in any 7-day period be prevented
except in case of an emergency, such as a natural disaster.
(6) Another study published in the July/August 2004 Health Affairs Journal,
The Working Hours of Hospital Staff Nurses and Patient Safety, found that
nurses who worked shifts of twelve and a half hours or more were three times
more likely to commit an error than nurses who worked standard shifts of
eight and a half hours or less. The study also found that working overtime
increased the odds of making at least one error, regardless of how long
the shift was originally scheduled.
(7) That same study also illustrates how nurses are being forced to work
more and more overtime. The majority of nurses surveyed reported working
overtime ten or more times in a twenty-eight day period and one-sixth reported
working sixteen or more consecutive hours at least once during the period.
Nurses reported being mandated to work overtime on 360 shifts and on another
143 shifts they described being `coerced' into working voluntary overtime.
(8) While no Federal standards currently restrict mandatory nurse overtime,
many States are considering such laws and several States, including California,
Connecticut, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington,
and West Virginia, have enacted laws or prescribed regulations.
(9) Federal limitations on mandatory nurse overtime will ensure that health
care facilities throughout the country operate in a manner that safeguards
public safety by helping assure the delivery of quality nursing care and
facilitating the retention and recruitment of 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 (U), by striking `and' at the end;
(B) in subparagraph (V), by striking the period and inserting `, and';
and
(C) by inserting after subparagraph (V), the following:
`(W) to comply with the requirements of subsection (k) (relating to limitations
on mandatory overtime for nurses).'; and
(2) by adding at the end the following new subsection:
`(k) Limitations on Mandatory Overtime for Nurses- For purposes of subsection
(a)(1)(W), the requirements of this subsection are the following:
`(1) PROHIBITION ON MANDATORY OVERTIME- Except as provided in this subsection,
a provider of services shall not, directly or indirectly, require a nurse
to work in excess of any of the following:
`(A) The scheduled work shift or duty period of the nurse.
`(B) 12 hours in a 24-hour period.
`(C) 80 hours in a consecutive 14-day period.
`(A) IN GENERAL- Subject to subparagraph (B), the requirements of paragraph
(1) shall not apply to a provider of services during a declared state
of emergency 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; and
`(ii) the duration of the work requirement does not extend past the
earlier of--
`(I) the date on which the declared state of emergency ends; or
`(II) the date on which the provider's direct role in responding to
the medical needs resulting from the declared state of emergency ends.
`(3) REPORT OF VIOLATIONS-
`(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 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.
`(A) 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 section.
`(B) 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- Nothing in this subsection shall be construed
as precluding a nurse from voluntarily working more than any of the periods
of time described in paragraph (1), so long as such work is done consistent
with professional standards of safe patient care.
`(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;
`(v) an ambulatory surgical center;
`(vi) a home health agency;
`(vii) a rehabilitation agency;
`(viii) a clinic, including a rural health clinic; or
`(ix) a federally qualified health center.
`(E) 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.
`(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.'.
(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-
(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(k) 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(k), as so added.
END
