PRINTER'S NO. 197
No. 171 Session of 2007
INTRODUCED BY SOLOBAY, BARRAR, BELFANTI, CALTAGIRONE, CAPPELLI, CASORIO, COHEN, DALEY, DeLUCA, EACHUS, FABRIZIO, GALLOWAY, GEORGE, GIBBONS, GOODMAN, GRUCELA, HORNAMAN, KOTIK, KULA, MAHONEY, MANN, MELIO, PALLONE, PETRARCA, PETRONE, SAINATO, SCAVELLO, STURLA, SURRA, TANGRETTI, WALKO, WOJNAROSKI, YOUNGBLOOD AND YUDICHAK, FEBRUARY 1, 2007
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, FEBRUARY 1, 2007
AN ACT 1 Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An 2 act relating to health care; prescribing the powers and 3 duties of the Department of Health; establishing and 4 providing the powers and duties of the State Health 5 Coordinating Council, health systems agencies and Health Care 6 Policy Board in the Department of Health, and State Health 7 Facility Hearing Board in the Department of Justice; 8 providing for certification of need of health care providers 9 and prescribing penalties," further providing for purposes, 10 for definitions, for powers of the Department of Health, for 11 administration and for licensure; providing for compliance 12 with staffing plans and recordkeeping, for work assignment 13 policies and for public disclosure of staffing requirements; 14 further providing for license standards, reliance on 15 accrediting agencies and Federal Government, for medical 16 assistance payments and for civil penalties; and providing 17 for private cause of action and for grants and loan programs 18 for nurse recruitment. 19 The General Assembly of the Commonwealth of Pennsylvania 20 hereby enacts as follows: 21 Section 1. Section 102 of the act of July 19, 1979 (P.L.130, 22 No.48), known as the Health Care Facilities Act, is amended to 23 read:
1 Section 102. Purposes. 2 The General Assembly finds [that] as follows: 3 (1) That the health and welfare of Pennsylvania citizens 4 will be enhanced by the orderly and economical distribution 5 of health care resources to prevent needless duplication of 6 services. Such distribution of resources will be further by 7 governmental involvement to coordinate the health care 8 system. Such a system will enhance the public health and 9 welfare by making the delivery system responsive and adequate 10 to the needs of its citizens, and assuring that new health 11 care services and facilities are efficiently and effectively 12 used; that health care services and facilities continue to 13 meet high quality standards; and, that all citizens receive 14 humane, courteous and dignified treatment. In developing such 15 a coordinated health care system, it is the policy of the 16 Commonwealth to foster responsible private operation and 17 ownership of health care facilities, to encourage innovation 18 and continuous development of improved methods of health care 19 and to aid efficient and effective planning using local 20 health systems agencies. It is the intent of the General 21 Assembly that the Department of Health foster a sound health 22 care system which provides for quality care at appropriate 23 health care facilities throughout the Commonwealth. 24 (2) That a substantial interest exists in assuring that 25 delivery of health care services to patients in health care 26 facilities located within this Commonwealth is adequate and 27 safe and that health care facilities retain sufficient 28 nursing staff so as to promote optimal health care outcomes. 29 Inadequate hospital staffing results in dangerous medical 30 errors and patient infections. Registered nurses constitute 20070H0171B0197 - 2 -
1 the highest percentage of direct health care staff in acute 2 care facilities and have a central role in health care 3 delivery. To ensure the adequate protection and care for 4 patients in health care facilities it is essential that 5 qualified registered nurses be accessible and available to 6 meet the nursing needs of patients. Inadequate and poorly 7 monitored nurse staffing practices which result in having too 8 few registered nurses providing care jeopardize delivery of 9 quality health care services and adversely impact the health 10 of patients who enter hospitals and outpatient emergency and 11 surgical centers. The basic principles of staffing in health 12 care facilities should be focused on patient health care 13 needs and based on consideration of patient acuity levels and 14 services that need to be provided to ensure optimal outcomes. 15 While the focus of this act is on registered nurses who are 16 principal caregivers, safe staffing practices recognize the 17 importance of all health care workers in providing quality 18 patient care. The setting of staffing standards for registered 19 nurses is not to be interpreted as justifying the understaffing 20 of other critical health care workers, including licensed 21 practical nurses, social workers and unlicensed assistive 22 personnel. Indeed, the availability of these other health care 23 workers enables registered nurses to focus on the nursing care 24 functions that only registered nurses, by law, are permitted to 25 perform and thereby helps to ensure adequate staffing levels. 26 Establishing staffing standards for registered nurses in acute 27 care facilities ensures that health care facilities throughout 28 this Commonwealth operate in a manner that guarantees the public 29 safety and the delivery of quality health care services. In 30 order to meet these standards incentives must be created to 20070H0171B0197 - 3 -
1 increase the number of registered nurses within this 2 Commonwealth. 3 Section 2. Section 103 of the act is amended by adding 4 definitions to read: 5 Section 103. Definitions. 6 The following words and phrases when used in this act shall 7 have, unless the context clearly indicates otherwise, the 8 meanings given to them in this section: 9 * * * 10 "Acuity system." An established measurement instrument that: 11 (1) Predicts nursing care requirements for individual 12 patients based on severity of patient illness, need for 13 specialized equipment and technology, intensity of nursing 14 interventions required and the complexity of clinical nursing 15 judgment needed to design, implement and evaluate the 16 patient's nursing care plan. 17 (2) Details the amount of nursing care needed, both in 18 number of direct care nurses and in skill mix of nursing 19 personnel required on a daily basis for each patient in a 20 nursing department or unit. 21 (3) Is stated in terms that readily can be used and 22 understood by direct-care nurses. The acuity system shall 23 take into consideration the patient care services provided 24 not only by registered nurses but also by licensed practical 25 nurses and other health care personnel. 26 "Assessment tool." A measurement system that compares the 27 staffing level in each nursing department or unit against actual 28 patient nursing care requirements in order to review the 29 accuracy of an acuity system. 30 * * * 20070H0171B0197 - 4 -
1 "Direct-care nurse." A registered nurse who has direct 2 responsibility to oversee or directly carry out medical 3 regimens, nursing or other bedside care for one or more 4 patients. 5 "Documented staffing plan." A detailed written plan setting 6 forth the minimum number and classification of direct-care 7 nurses required in each nursing department or unit in the health 8 facility for a given year, based on reasonable projections 9 derived from the patient census and average acuity level within 10 each department or unit during the prior year, the department or 11 unit size and geography, the nature of services provided and any 12 foreseeable changes in department or unit size or function 13 during the current year. 14 "Extended care facility." A home health care agency, a 15 hospice or a long-term care nursing facility. 16 * * * 17 "Nurse" or "registered nurse." An individual licensed to 18 practice professional nursing under the act of May 22, 1951 19 (P.L.317, No.69), known as "The Professional Nursing Law." 20 "Nursing care." Care that falls within the scope of practice 21 as prescribed by State law or otherwise encompassed within 22 recognized professional standards of nursing practice, including 23 assessment, nursing diagnosis, planning, intervention, 24 evaluation and patient advocacy. 25 * * * 26 "Staffing level." The actual numerical nurse-to-patient 27 ratio within a nursing department or unit. 28 * * * 29 "Unit." A patient care component within a facility as 30 defined by the Department of Health. 20070H0171B0197 - 5 -
1 Section 3. Section 803 of the act, added July 12, 1980 2 (P.L.655, No.136), is amended to read: 3 Section 803. Powers of the Department of Health. 4 The Department of Health shall have the power and its duty 5 shall be: 6 (1) to promulgate, after consultation with the policy 7 board, the rules and regulations necessary to carry out the 8 purposes and provisions of this chapter[; and], including 9 regulations defining terms, setting forth direct-care nurse- 10 to-patient ratios and prescribing the process for approving 11 acuity systems; 12 (2) to assure that the provisions of this chapter and 13 all rules and regulations promulgated under this chapter are 14 enforced[.]; and 15 (3) to promulgate, within six months of the effective 16 date of this paragraph, regulations providing for an 17 accessible and confidential system to report the failure to 18 comply with requirements of this chapter and public access to 19 information regarding reports of inspections, results, 20 deficiencies and corrections under this chapter. 21 Section 4. Sections 804 and 806 of the act are amended by 22 adding subsections to read: 23 Section 804. Administration. 24 * * * 25 (e) Approval of acuity system.--The department shall adopt 26 regulations prescribing the method by which it will approve a 27 facility's acuity system. The regulations may include a system 28 for class approval of acuity systems. 29 Section 806. Licensure. 30 * * * 20070H0171B0197 - 6 -
1 (h) Staffing requirements.--Each health care facility, other 2 than an extended care facility, licensed pursuant to this act 3 shall ensure that it is staffed in a manner that provides 4 sufficient, appropriately qualified direct-care nurses in each 5 department or unit within the facility in order to meet the 6 individualized care needs of its patients and to meet all of the 7 following requirements: 8 (1) As a condition of licensing, each facility annually 9 shall submit to the department a documented staffing plan 10 together with a written certification that the staffing plan 11 is sufficient to provide adequate and appropriate delivery of 12 health care services to patients for the ensuing year and 13 does all of the following: 14 (i) meets the minimum requirements of paragraph (2); 15 (ii) meets any additional requirements of other laws 16 or regulations; 17 (iii) employs and identifies an approved acuity 18 system for addressing fluctuations in actual patient 19 acuity levels and nursing care requirements requiring 20 increased staffing levels above the minimums set forth in 21 the plan; 22 (iv) factors in other unit or department activity 23 such as discharges, transfers and admissions, 24 administrative and support tasks that are expected to be 25 done by direct-care nurses in addition to direct nursing 26 care; 27 (v) factors in the staffing level of and services 28 provided by other health care personnel in meeting 29 patient care needs, except that the staffing plan may not 30 incorporate or assume that nursing care functions 20070H0171B0197 - 7 -
1 required by licensing law or regulations or accepted 2 standards of practice to be performed by a registered 3 nurse are to be performed by other personnel; 4 (vi) identifies the assessment tool used to validate 5 the acuity system relied on in the plan; 6 (vii) identifies the system that will be used to 7 document actual staffing on a daily basis within each 8 department or unit; 9 (viii) includes a written assessment of the accuracy 10 of the prior year's staffing plan in light of actual 11 staffing needs; 12 (ix) identifies each nurse staff classification 13 referenced in the plan together with a statement setting 14 forth minimum qualifications for each classification; and 15 (x) is produced in consultation with a majority of 16 the direct-care nurses within each department or unit or, 17 where applicable, with the recognized or certified 18 collective bargaining representative or representative of 19 the direct-care nurses. 20 (2) The staffing plan must incorporate, at a minimum, 21 the following direct-care nurse-to-patient ratios: 22 (i) One nurse to one patient: operating room and 23 trauma emergency units. 24 (ii) One nurse to two patients: all critical care 25 areas including emergency critical care and all intensive 26 care units, labor and delivery units and postanesthesia 27 units. 28 (iii) One nurse to three patients: antepartum, 29 emergency room, pediatrics, step-down and telemetry 30 units. 20070H0171B0197 - 8 -
1 (iv) One nurse to four patients: intermediate care 2 nursery, and medical/surgical and acute care psychiatric 3 units. 4 (v) One nurse to five patients: rehabilitation 5 units. 6 (vi) One nurse to six patients: postpartum (three 7 couplets) and well-baby nursery units. 8 (vii) For any units not listed above, including 9 psychiatric units in facilities other than acute care 10 hospitals, such direct-care nurse-to-patient ratio as 11 established by the department. 12 (3) The ratios set forth in paragraph (2) shall 13 constitute the maximum number of patients that may be 14 assigned to each direct-care nurse in a unit during one 15 shift. A nurse, including a nurse administrator or 16 supervisor, who does not have principal responsibility as a 17 direct-care nurse for a specific patient shall not be 18 included in the calculation of the nurse-to-patient ratio. 19 (4) Nothing shall preclude the department from 20 establishing and requiring a staffing plan to have higher 21 nurse-to-patient ratios than those set forth in paragraph 22 (2). 23 (5) The staffing plan may not incorporate or assume that 24 nursing care functions required by licensing law or 25 regulations or accepted standards of practice to be performed 26 by a registered nurse are to be performed by other personnel. 27 Section 5. The act is amended by adding sections to read: 28 Section 806.5. Compliance with staffing plan and recordkeeping. 29 (a) Plan.--As a condition of licensing, a health care 30 facility required to have a staffing plan under section 806(h) 20070H0171B0197 - 9 -
1 shall at all times staff in accordance with its staffing plan 2 and the staffing standards set forth under section 806(h), 3 provided that nothing herein shall be deemed to preclude any 4 such health care facility from implementing higher direct-care 5 nurse-to-patient staffing levels, nor shall the requirements set 6 forth be deemed to supersede or replace any higher requirements 7 otherwise mandated by law, regulation or contract. 8 (b) Appropriate license required.--For purposes of 9 compliance with the minimum staffing requirements standards set 10 forth under section 806(h), no nurse shall be assigned, or 11 included in the count of assigned nursing staff in a nursing 12 department or unit or a clinical area within the health facility 13 unless that nurse has an appropriate license under the 14 applicable registered nurse law, received prior orientation in 15 that clinical area sufficient to provide competent nursing care 16 to the patients in that area, and has demonstrated current 17 competence in providing care in that area. Hospitals that 18 utilize temporary nursing agencies shall have and adhere to a 19 written procedure to orient and evaluate personnel from these 20 sources to ensure adequate orientation and competency prior to 21 inclusion in the nurse-to-patient ratio. 22 (c) Daily records.--As a condition of licensure, each health 23 care facility required to have a staffing plan under section 24 806(h) shall maintain accurate daily records showing: 25 (1) The number of patients admitted, released and 26 present in each nursing department or unit within the 27 facility. 28 (2) The individual acuity level of each patient present 29 in each nursing department or unit within the facility. 30 (3) The identity and duty hours of each direct-care 20070H0171B0197 - 10 -
1 nurse in each nursing department or unit within the facility. 2 (d) Daily statistics.--As a condition of licensure, each 3 health care facility required to have a staffing plan under 4 section 806(h) shall maintain daily statistics, by nursing 5 department and unit, of mortality, morbidity, infection, 6 accident, injury and medical errors. 7 (e) Records retention.--All records required to be kept 8 under this section shall be maintained for a period of seven 9 years. 10 (f) Availability of records.--All records required to be 11 kept under this section shall be made available upon request to 12 the department and to the public, provided that information 13 released to the public shall comply with applicable patient 14 privacy laws and regulations. 15 Section 806.6. Work assignment policy. 16 (a) Written policy.--As a condition of licensure, each 17 health care facility other than an extended care facility shall 18 adopt, disseminate to direct-care nurses and comply with a 19 written policy that meets the requirements of this section, 20 detailing the circumstances under which a direct-care nurse may 21 refuse a work assignment. 22 (b) Minimum conditions.--At a minimum, the work assignment 23 policy shall permit a direct-care nurse to refuse an assignment 24 for which: 25 (1) The nurse is not prepared by education, training or 26 experience to safely fulfill the assignment without 27 compromising or jeopardizing patient safety, the nurse's 28 ability to meet foreseeable patient needs or the nurse's 29 license. 30 (2) The assignment otherwise would violate requirements 20070H0171B0197 - 11 -
1 under this act. 2 (c) Minimum procedures.--At a minimum, the work assignment 3 policy shall contain procedures for the following: 4 (1) Reasonable requirements for prior notice to the 5 nurse's supervisor regarding the nurse's request and 6 supporting reasons for being relieved of the assignment or 7 continued duty. 8 (2) Where feasible, an opportunity for the supervisor to 9 review the specific conditions supporting the nurse's 10 request, and to decide whether to remedy the conditions, to 11 relieve the nurse of the assignment or to deny the nurse's 12 request to be relieved of the assignment or continued duty. 13 (3) A process that permits the nurse to exercise the 14 right to refuse the assignment or continued on-duty status 15 when the supervisor denies the request to be relieved if: 16 (i) the supervisor rejects the request without 17 proposing a remedy or the proposed remedy would be 18 inadequate or untimely; 19 (ii) the complaint and investigation process with a 20 regulatory agency would be untimely to address concern; 21 and 22 (iii) the employee in good faith believes that the 23 assignment meets conditions justifying refusal. 24 (4) A nurse who refuses an assignment pursuant to a work 25 assignment policy established in this section shall not be 26 deemed, by reason thereof, to have engaged in negligent or 27 incompetent action, patient abandonment or otherwise to have 28 violated applicable nursing law. 29 Section 806.7. Public disclosure of staffing requirements. 30 As a condition of licensing, a health care facility required 20070H0171B0197 - 12 -
1 to have a staffing plan under section 806(h) shall: 2 (1) Post in a conspicuous place readily accessible to 3 the general public a notice prepared by the department 4 setting forth the mandatory provisions of this act relating 5 to staffing together with a statement of the mandatory and 6 actual daily nurse staffing levels in each nursing department 7 or unit. 8 (2) Upon request, make copies of the staffing plan filed 9 with the department available to the public. 10 (3) Make readily available to the nursing staff with a 11 department or unit, during each work shift, the following 12 information: 13 (i) A copy of the current staffing plan for that 14 department or unit. 15 (ii) Documentation of the number of direct-care 16 nurses required to be present during the shift based on 17 the approved adopted acuity system. 18 (iii) Documentation of the actual number of direct- 19 care nurses present during the shift. 20 Section 6. Section 808(a) of the act, amended December 18, 21 1992 (P.L.1602, No.179), is amended to read: 22 Section 808. Issuance of license. 23 (a) Standards.--The department shall issue a license to a 24 health care provider when it is satisfied that the following 25 standards have been met: 26 (1) that the health care provider is a responsible 27 person; 28 (2) that the place to be used as a health care facility 29 is adequately constructed, equipped, maintained and operated 30 to safely and efficiently render the services offered; 20070H0171B0197 - 13 -
1 (3) that the health care facility provides safe and 2 efficient services which are adequate for the care, treatment 3 and comfort of the patients or residents of such facility; 4 (4) that there is substantial compliance with the rules 5 and regulations adopted by the department pursuant to this 6 act; [and] 7 (5) that a certificate of need has been issued if one is 8 necessary[.]; and 9 (6) that in the case of a health care facility required 10 to have a staffing plan under section 806(h), the facility 11 has submitted a documented staffing plan and is operating in 12 compliance with the requirements of this chapter and 13 applicable regulations. 14 * * * 15 Section 7. Section 810 of the act is amended by adding a 16 subsection to read: 17 Section 810. Reliance on accrediting agencies and Federal 18 Government. 19 * * * 20 (d) Delegation prohibited.--This section shall not be 21 construed to permit the department to delegate any of its 22 functions with respect to the staffing requirements of this 23 chapter. 24 Section 8. Section 815(c) of the act, added July 12, 1980 25 (P.L.655, No.136), is amended to read: 26 Section 815. Effect of departmental orders. 27 * * * 28 (c) Medical assistance payments.--Orders of the department, 29 to the extent that they are sustained by the board, which fail 30 to renew a license or which suspend or revoke a license, shall 20070H0171B0197 - 14 -
1 likewise revoke or suspend certification of the facility as a 2 medical assistance provider, and no medical assistance payment 3 for services rendered subsequent to the final order shall be 4 made during the pendency of an appeal for the period of 5 revocation or suspension without an order of supersedeas by the 6 appellate court. Any health care facility that falsifies or 7 causes to be falsified documentation required by this act shall 8 be prohibited from receiving any medical assistance payment for 9 a period of six months subsequent to the final order of 10 violation. 11 Section 9. Section 817(b) of the act, amended December 18, 12 1992 (P.L.1602, No.179), is amended and the section is amended 13 by adding subsections to read: 14 Section 817. Actions against violations of law, rules and 15 regulations. 16 * * * 17 (b) Civil penalty.-- 18 (1) Any person, regardless of whether such person is a 19 licensee, who has committed a violation of any of the 20 provisions of this chapter or of any rule or regulation 21 issued pursuant thereto, including failure to correct a 22 serious licensure violation (as defined by regulation) within 23 the time specified in a deficiency citation, may be assessed 24 a civil penalty by an order of the department of up to $500 25 for each deficiency for each day that each deficiency 26 continues[.], provided that a health care facility required 27 to have a staffing plan under section 806(h) that fails to 28 comply with the requirements of section 806.5(c) and 29 reporting requirements of this act may be assessed a civil 30 penalty by an order of the department of up to $10,000 for 20070H0171B0197 - 15 -
1 each day of noncompliance. Civil penalties shall be collected 2 from the date the facility receives notice of the violation 3 until the department confirms correction of such violation. 4 (2) Any personal or health care facility that fails to 5 report or falsifies information, or coerces, threatens, 6 intimidates or otherwise influences another person to fail to 7 report or to falsify information required to be reported 8 under this chapter may be assessed a penalty of up to $10,000 9 for each such incident. 10 * * * 11 (e) Discharge or discrimination.--No person shall discharge, 12 discriminate or in any manner retaliate against any employee 13 because the employee has filed a complaint or instituted or 14 caused to be instituted a proceeding under or related to this 15 act or has testified or is about to testify in any such 16 proceeding or because of the exercise by such employee on behalf 17 of himself or others of any right afforded by this act. 18 (f) Private right of action.--Any health care facility other 19 than an extended care facility that violates the rights of an 20 employee set forth in subsection (e) or under an adopted work 21 assignment policy under section 806.6 may be held liable to the 22 employee in an action brought in a court of competent 23 jurisdiction for such legal or equitable relief as may be 24 appropriate to effectuate the purposes of this act, including, 25 but not limited to, reinstatement, promotion, lost wages and 26 benefits and compensatory and consequential damages resulting 27 from the violations together with an equal amount in liquidated 28 damages. The court in such action shall, in addition to any 29 judgment awarded to the plaintiffs, award reasonable attorney 30 fees and costs of action to be paid by the defendants. The 20070H0171B0197 - 16 -
1 employee's right to institute a private action is not limited by 2 any other rights granted under this act. 3 Section 10. The act is amended by adding a section to read: 4 Section 902.2. Nurse recruitment. 5 (a) Nurse recruitment grant program.-- 6 (1) The department shall award grants as provided herein 7 to increase nursing education opportunities. 8 (2) Eligible entities to whom grants may be provided 9 include the following: a health care facility, a labor 10 organization representing registered nurses in this 11 Commonwealth, or an approved nursing education program for 12 the preparation of professional registered nurses in 13 accordance with the requirements of the professional nursing 14 law. 15 (3) Grants shall be available to: 16 (i) Support outreach programs at elementary and 17 secondary schools that inform guidance counselors and 18 students of education opportunities regarding nursing. 19 (ii) Create demonstration programs to provide 20 mentors for high school students designed to encourage 21 them to enter a career in professional nursing. 22 (iii) Provide scholarships and/or tuition 23 reimbursement to Pennsylvania residents from diverse 24 racial and ethnic backgrounds who want to become 25 registered nurses. To be eligible for a scholarship or 26 tuition reimbursement, students shall meet designated 27 academic criteria and be accepted into an approved 28 nursing program. Scholarships and/or tuition 29 reimbursement may be conditioned on a commitment of paid 30 service up to three years. Preference for scholarships 20070H0171B0197 - 17 -
1 shall be given to students who are from under-represented 2 ethnic and minority backgrounds or who are otherwise 3 under-represented in the profession of nursing. Students 4 who are awarded the scholarships owe the hospital three 5 years of service at full pay or face a penalty of treble 6 the scholarship amount plus interest. 7 (b) Career ladder grant program.-- 8 (1) The department shall award grants to health care 9 facilities to assist in creating career ladder programs that 10 will encourage employees to obtain the education required to 11 become registered nurses. In making such awards, preference 12 shall be given to health care facilities that have active 13 labor management cooperative programs. 14 (2) Grants provided under this subsection shall be used 15 to cover costs incurred by employees of the health care 16 facility who enroll in an approved program to become 17 registered nurses, including tuition costs, work release time 18 and dependent care costs. 19 (c) Nursing facility loan program.--The department shall 20 establish and implement a grant program designed to encourage 21 health care facilities to loan professional nursing staff to 22 serve as faculty at approved nursing schools and/or nursing 23 education programs. 24 Section 11. This act shall take effect as follows: 25 (1) The addition of section 902.2 of the act shall take 26 effect in 90 days. 27 (2) This section shall take effect immediately. 28 (3) The remainder of this act shall take effect in one 29 year. L27L35AJM/20070H0171B0197 - 18 -