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 at certain medicare providers, and for other purposes.

May 5, 2003

Mr. INOUYE introduced the following bill; which was read twice and referred to the Committee on Finance

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 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 2003'.

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 (R), by striking `and' after the comma at the end;

(2) in subparagraph (S), by striking the period at the end and inserting `, and'; and

(3) by inserting after subparagraph (S) the following new subparagraph:

`(T) in the case of a hospital, to meet the requirements of section 1889.'.

(b) REQUIREMENTS- Part D of title XVIII of the Social Security Act is amended by inserting after section 1888 the following new section:

`STAFFING REQUIREMENTS FOR MEDICARE PARTICIPATING HOSPITALS

`SEC. 1889. (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 site 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 provision 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 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 SITE- The Secretary shall publish on the Internet site 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 site 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) REGULATIONS- The Secretary shall promulgate such regulations as are appropriate and necessary to implement this section.

`(h) 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, 2004.

END