PRINTER'S NO.  424

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

SENATE BILL

 

No.

438

Session of

2011

  

  

INTRODUCED BY LEACH, KITCHEN, FONTANA, BREWSTER, BOSCOLA, COSTA, STACK, TARTAGLIONE, YUDICHAK AND FERLO, FEBRUARY 7, 2011

  

  

REFERRED TO PUBLIC HEALTH AND WELFARE, FEBRUARY 7, 2011  

  

  

  

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," providing for hospital patient

10

protection.

11

The General Assembly of the Commonwealth of Pennsylvania

12

hereby enacts as follows:

13

Section 1.  The act of July 19, 1979 (P.L.130, No.48), known

14

as the Health Care Facilities Act, is amended by adding a

15

chapter to read:

16

CHAPTER 8-A

17

HOSPITAL PATIENT PROTECTION

18

Section 831-A.  Scope of chapter.

19

This chapter provides for hospital patient protection.

20

Section 832-A.  Purpose.

21

The General Assembly finds that:

22

(1)  Health care services are becoming more complex, and

 


1

it is increasingly difficult for patients to access

2

integrated services.

3

(2)  Competent, safe, therapeutic and effective patient

4

care is jeopardized because of staffing changes implemented

5

in response to market-driven managed care.

6

(3)  To ensure effective protection of patients in acute

7

care settings, it is essential that qualified direct care

8

registered nurses be accessible and available to meet the

9

individual needs of patients at all times.

10

(4)  To ensure the health and welfare of Pennsylvania

11

citizens, mandatory hospital direct care professional nursing

12

practice standards and professional practice protections must

13

be established to assure that hospital nursing care is

14

provided in the exclusive interests of patients.

15

(5)  Direct care registered nurses have a fiduciary duty

16

to assigned patients and necessary duty and right of patient

17

advocacy and collective patient advocacy to satisfy

18

professional fiduciary obligations.

19

(6)  The basic principles of staffing in hospital

20

settings should be based on the individual patient’s care

21

needs, the severity of the condition, services needed and the

22

complexity surrounding those services.

23

(7)  Current unsafe hospital direct care registered nurse

24

staffing practices have resulted in adverse patient outcome.

25

(8)  Mandating adoption of uniform, minimum, numerical

26

and specific registered nurse-to-patient staffing ratios by

27

licensed hospital facilities is necessary for competent,

28

safe, therapeutic and effective professional nursing care and

29

for retention and recruitment of qualified direct care

30

registered nurses.

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1

(9)  Direct care registered nurses must be able to

2

advocate for their patients without fear of retaliation from

3

their employer.

4

(10)  Whistleblower protections that encourage registered

5

nurses and patients to notify government and private

6

accreditation entities of suspected unsafe patient

7

conditions, including protection against retaliation for

8

refusing unsafe patient care assignments by competent

9

registered nurse staff, will greatly enhance the health,

10

welfare and safety of patients.

11

Section 833-A.  Definitions.

12

The following words and phrases when used in this chapter

13

shall have the meaning given to them in this section unless the

14

context clearly indicates otherwise:

15

"Acuity-based patient classification system" or "system."  A

16

standardized set of criteria based on scientific data that acts

17

as a measurement instrument used to predict registered nursing

18

care requirements for individual patients based on:

19

(1)  The severity of patient illness.

20

(2)  The need for specialized equipment and technology.

21

(3)  The intensity of required nursing interventions.

22

(4)  The complexity of clinical nursing judgment required

23

to design, implement and evaluate the patient's nursing care

24

plan consistent with professional standards.

25

(5)  The ability for self-care, including motor, sensory

26

and cognitive deficits.

27

(6)  The need for advocacy intervention.

28

(7)  The licensure of the personnel required for care.

29

(8)  The patient care delivery system.

30

(9)  The unit's geographic layout.

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1

(10)  Generally accepted standards of nursing practice,

2

as well as elements reflective of the unique nature of the

3

acute care hospital’s patient population.

4

The system determines the additional number of direct care

5

registered nurses and other licensed and unlicensed nursing

6

staff the hospital must assign, based on the independent

7

professional judgment of the direct care registered nurse, to

8

meet the individual patient needs at all times.

9

"Artificial life support."  A system that uses medical

10

technology to aid, support or replace a vital function of the

11

body that has been seriously damaged.

12

"Clinical judgment."  The application of a direct care

13

registered nurse’s knowledge, skill, expertise and experience in

14

making independent decisions about patient care.

15

"Clinical supervision."  The assignment and direction of

16

patient care tasks required in the implementation of nursing

17

care for a patient to other licensed nursing staff or to

18

unlicensed staff by a direct care registered nurse in the

19

exclusive interests of the patient.

20

"Competence."  The current documented, demonstrated and

21

validated ability of a direct care registered nurse to act and

22

integrate the knowledge, skills, abilities and independent

23

professional judgment that underpin safe, therapeutic and

24

effective patient care and which ability is based on the

25

satisfactory performance of:

26

(1)  The statutorily recognized duties and

27

responsibilities of the registered nurses as provided under

28

the laws of this Commonwealth.

29

(2)  The standards required under this chapter which are

30

specific to each hospital unit.

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1

"Critical access hospital."  A health facility designated

2

under a Medicare rural hospital flexibility program established

3

by the Commonwealth and as defined in section 1861(mm) of the

4

Social Security Act (49 Stat. 620, 42 U.S.C. § 1395x(mm)).

5

"Critical care unit" or "intensive care unit."  A nursing

6

unit of an acute care hospital that is established to safeguard

7

and protect patients whose severity of medical conditions

8

require continuous monitoring and complex interventions by

9

direct care registered nurses and whose restorative measures

10

require complex monitoring, intensive intricate assessment,

11

evaluation, specialized rapid intervention and the education and

12

teaching of the patient, the patient’s family or other

13

representatives by a competent and experienced direct care

14

registered nurse. The term includes an intensive care unit, a

15

burn center, a coronary care unit or an acute respiratory unit.

16

"Direct care registered nurse" or "direct care professional

17

nurse."  A registered nurse who:

18

(1)  Is currently licensed by the Pennsylvania Board of

19

Nursing to engage in professional nursing with documented

20

clinical competence as defined in the act of May 22, 1951

21

(P.L. 317, No. 69), known as The Professional Nursing Law.

22

(2)  Has accepted a direct, hands-on patient care

23

assignment to implement medical and nursing regimens and

24

provide related clinical supervision of patient care while

25

exercising independent professional judgment at all times in

26

the interests of a patient.

27

"Hospital."  An entity located in this Commonwealth that is

28

licensed as a hospital under this act. The term includes a

29

critical access and long-term acute care hospital.

30

"Hospital unit" or "clinical patient care area."  An

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1

intensive care or critical care unit, a burn unit, a labor and

2

delivery room, antepartum and postpartum, a newborn nursery, a

3

post-anesthesia service area, an emergency department, an

4

operating room, a pediatric unit, a step-down or intermediate

5

care unit, a specialty care unit, a telemetry unit, a general

6

medical/surgical care unit, a psychiatric unit, a rehabilitation

7

unit or a skilled nursing facility unit.

8

"Long-term acute care hospital."  A hospital or health care

9

facility that specializes in providing acute care to medically

10

complex patients with an anticipated length of stay of more than

11

25 days. The term includes a free-standing and a hospital-

12

within-hospital model of a long-term acute care facility.

13

"Medical/surgical unit."  A unit that:

14

(1)  Is established to safeguard and protect patients

15

whose severity of illness, including all comorbidities,

16

restorative measures and level of nursing intensity requires

17

continuous care through direct observation by a direct care

18

registered nurse, monitoring, multiple assessments,

19

specialized interventions, evaluations and the education or

20

teaching of a patient’s family or other representatives by a

21

competent and experienced direct care registered nurse.

22

(2)  May include patients requiring less than intensive

23

care or step-down care and patients receiving 24-hour

24

inpatient general medical care, post-surgical care or both.

25

(3)  May include mixed patient populations of diverse

26

diagnoses and diverse age groups, excluding pediatric

27

patients.

28

"Patient assessment."  The direct care utilization by a

29

registered nurse of critical thinking, which is the

30

intellectually disciplined process of actively and skillfully

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1

interpreting, applying, analyzing, synthesizing and evaluating

2

data obtained through the registered nurse's direct care, direct

3

observation and communication with others.

4

"Professional judgment."  The educated, informed and

5

experienced process that a direct care registered nurse

6

exercises in forming an opinion and reaching a clinical

7

decision, in a patient’s best interest, based upon analysis of

8

data, information and scientific evidence.

9

"Rehabilitation unit."  A functional clinical unit for the

10

provision of those rehabilitation services that restore an ill

11

or injured patient to the highest level of self-sufficiency or

12

gainful employment of which the patient is capable in the

13

shortest possible time, compatible with the patient's physical,

14

intellectual and emotional or psychological capabilities and in

15

accordance with planned goals and objectives.

16

"Skilled nursing facility."  A functional clinical unit that:

17

(1)  Provides skilled nursing care and supportive care to

18

patients whose primary need is for the availability of

19

skilled nursing care on a long-term basis and who are

20

admitted after at least a 48-hour period of continuous

21

inpatient care.

22

(2)  Provides at least the following: medical, nursing,

23

dietary, pharmaceutical services and an activity program.

24

"Specialty care unit." A unit that:

25

(1)  Is established to safeguard and protect patients

26

whose severity of illness, including all comorbidities,

27

restorative measures and level of nursing intensity requires

28

continuous care through direct observation by a direct care

29

registered nurse, monitoring, multiple assessments,

30

specialized interventions, evaluations and the education and

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1

teaching of a patient’s family or other representatives by a

2

competent and experienced direct care registered nurse.

3

(2)  Provides intensity of care for a specific medical

4

condition or a specific patient population.

5

(3)  Is more comprehensive for the specific condition or

6

disease process than that which is required on a

7

medical/surgical unit and is not otherwise covered by the

8

definitions in this section.

9

"Step-down unit."  A unit established:

10

(1)  To safeguard and protect patients whose severity of

11

illness, including all comorbidities, restorative measures

12

and level of nursing intensity requires intermediate

13

intensive care through direct observation by the direct care

14

registered nurse, monitoring, multiple assessments,

15

specialized interventions, evaluations and the education and

16

teaching of the patient’s family or other representatives by

17

a competent and experienced direct care registered nurse.

18

(2)  To provide care to patients with moderate or

19

potentially severe physiologic instability requiring

20

technical support but not necessarily artificial life

21

support.

22

"Technical support."  Specialized equipment and direct care

23

registered nurses providing for invasive monitoring, telemetry

24

and mechanical ventilation for the immediate amelioration or

25

remediation of severe pathology for those patients requiring

26

less care than intensive care, but more care than that which is

27

required from medical/surgical care.

28

"Telemetry unit."  A unit that:

29

(1) Is established to safeguard and protect patients

30

whose severity of illness, including all comorbidities,

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1

restorative measures and level of nursing intensity requires

2

intermediate intensive care through direct observation by a

3

direct registered nurse, monitoring, multiple assessments,

4

specialized interventions, evaluations and the education and

5

teaching of a patient’s family or other representatives by a

6

competent and experienced direct care registered nurse.

7

(2)  Is designated for the electronic monitoring,

8

recording, retrieval and display of cardiac electrical

9

signals.

10

Section 834-A.  Hospital nursing practice standard.

11

(a)  Professional obligation and right.--By virtue of their

12

professional license and ethical obligations, all registered

13

nurses have a duty and right to act and provide care in the

14

exclusive interests of a patient and to act as the patient’s

15

advocate, as circumstances require, in accordance with the

16

provision described in section 836-A.

17

(b)  Acceptance of patient care assignments.--

18

(1)  A direct care registered nurse shall provide

19

competent, safe, therapeutic and effective nursing care to

20

assigned patients.

21

(2)  As a condition of licensure, a health care facility

22

shall adopt, disseminate to direct care nurses and comply

23

with a written policy that details the circumstances under

24

which a direct care nurse may refuse a work assignment.

25

(3)  At a minimum, the policy shall permit a direct care

26

nurse to refuse a patient assignment for which:

27

(i)  the nurse does not have the necessary knowledge,

28

judgment, skills and ability to provide the required care

29

without compromising or jeopardizing the patient's

30

safety, the nurse’s ability to meet foreseeable patient

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1

needs or the nurse’s license; and

2

(ii) the assignment otherwise would violate

3

requirements under this chapter.

4

(4)  At a minimum, the policy shall permit a direct care

5

nurse to assess an order initiated by a physician or legally

6

authorized health care professional before implementation to

7

determine if the order is:

8

(i)  in the best interests of the patient;

9

(ii)  initiated by a person legally authorized to

10

issue the order; and

11

(iii)  in accordance with applicable law and

12

regulation governing nursing care.

13

(5)  At a minimum, the work assignment policy shall

14

contain procedures for the following:

15

(i)  Reasonable requirements for prior notice to the

16

nurse’s supervisor regarding the nurse’s request and

17

supporting reasons for being relieved of the assignment,

18

continued duty or implementation of an order.

19

(ii)  Where feasible, an opportunity for the

20

supervisor to review the specific conditions supporting

21

the nurse’s request and to decide whether to:

22

(A)  remedy the conditions;

23

(B)  to relieve the nurse of the assignment or

24

order; or

25

(C)  deny the nurse’s request to be relieved of

26

the assignment, continued duty or implementation of

27

an order.

28

(iii)  A process that permits the nurse to exercise

29

the right to refuse the assignment, continued on-duty

30

status or implementation of an order when the supervisor

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1

denies the request to be relieved if:

2

(A)  The supervisor rejects the request without

3

proposing a remedy or the proposed remedy would be

4

inadequate or untimely.

5

(B)  The complaint and investigation process with

6

a regulatory agency would be untimely to address

7

concern.

8

(C)  The employee, in good faith, believes that

9

the assignment or implementation of an order meets

10

conditions justifying refusal.

11

(iv)  A nurse who refuses an assignment or

12

implementation of an order under a work assignment policy

13

established in this section shall not be deemed, by

14

reason thereof, to have engaged in negligent or

15

incompetent action, patient abandonment or otherwise to

16

have violated applicable nursing law.

17

Section 835-A. Professional duty and right of patient advocacy.

18

A registered nurse has the professional obligation, and

19

therefore the right, to act as a patient’s advocate as

20

circumstances require by:

21

(2)  initiating action to improve health care or to

22

change decisions or activities which in the professional

23

judgment of the direct care registered nurse are against the

24

interests or wishes of the patient; or

25

(3)  giving the patient the opportunity to make informed

26

decisions about health care before it is provided.

27

Section 836-A.  Free speech.

28

(a)  Prohibition against discharge or retaliation for

29

whistleblowing.--A hospital or other health care facility shall

30

not discharge from duty or otherwise retaliate against a direct

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1

care registered nurse or other health care professional

2

responsible for patient care who reports unsafe practices or

3

violation of policy, regulation, rule or law.

4

(b)  Rights guaranteed as essential to effective patient

5

advocacy.--

6

(1)  A direct care registered nurse or other health care

7

professional or worker responsible for patient care in a

8

hospital shall enjoy the right of free speech and shall be

9

protected in the exercise of that right as provided in this

10

section, both during working hours and during off-duty hours.

11

(2)  The right of free speech protected by this section

12

is a necessary incident of the professional nurse duty of

13

patient advocacy and is essential to protecting the health

14

and safety of hospital patients and of the people of this

15

Commonwealth.

16

(c)  Protected speech.--

17

(1)  The "free speech" protected by this section

18

includes, without limitation, any type of spoken, gestured,

19

written, printed or electronically communicated expression

20

concerning any matter related to or affecting competent,

21

safe, therapeutic and effective nursing care by direct care

22

registered nurses or other health care professionals and

23

workers at the hospital facility, at facilities within large

24

health delivery systems or corporate chains which include the

25

hospital, or more generally within the health care industry.

26

(2)  The content of speech protected by this section

27

includes, without limitation, the facts and circumstances of

28

particular events, patient care practices, institutional

29

actions, policies or conditions which may facilitate or

30

impede competent, safe, therapeutic and effective nursing

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1

practice and patient care, adverse patient outcomes or

2

incidents, sentinel and reportable events and arguments in

3

support of or against hospital policies or practices relating

4

to the delivery of nursing care.

5

(3)  Protected speech under this section includes the

6

reporting, internally, externally or publicly, of actions,

7

conduct, events, practices or other matters that are believed

8

to constitute:

9

(i)  a violation of Federal, State or local laws or

10

regulations;

11

(ii)  a breach of applicable codes of professional

12

ethics, including the professional and ethical

13

obligations of direct care registered nurses;

14

(iii)  matters which, in the independent judgment of

15

the reporting direct care registered nurse, are

16

appropriate or required for disclosure in furtherance and

17

support of the nurse’s exercise of patient advocacy

18

duties to improve health care or change decisions or

19

activities which, in the professional judgment of the

20

direct care registered nurse, are against the interests

21

or wishes of the patient or to ensure that the patient is

22

afforded a meaningful opportunity to make informed

23

decisions about health care before it is provided; or

24

(iv)  concern matters as described in subparagraph

25

(iii) made in aid and support of the exercise of patient

26

advocacy duties of direct care registered nurse

27

colleagues.

28

(d)  Nondisclosure of confidential information.--Nothing in

29

this section shall be construed to authorize disclosure of

30

private and confidential patient information except where such

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1

disclosure is:

2

(1)  required by law;

3

(2)  compelled by proper legal process;

4

(3)  consented to by the patient; or

5

(4)  provided in confidence to regulatory or

6

accreditation agencies or other government entities for

7

investigatory purposes or under formal or informal complaints

8

of unlawful or improper practices for purposes of achieving

9

corrective and remedial action.

10

(e)   Duty of patient advocacy.--Engaging in free speech

11

activity as described in this section constitutes an exercise of

12

the direct care registered nurse's duty and right of patient

13

advocacy. The subject matter of free speech activity as

14

described in this section is presumed to be a matter of public

15

concern, and the disclosures protected under this section are

16

presumed to be in the public interest.

17

Section 837-A.  Protected rights.

18

(a) General rule.--Any person shall have the right to:

19

(1)    Oppose policies, practices or actions of any

20

hospital or other medical facility that are alleged to

21

violate, breach or fail to comply with any provision of this

22

chapter;

23

(2)    Cooperate, provide evidence, testify or otherwise

24

support or participate in any investigation or complaint

25

proceeding under sections 845-A and 846-A.

26

(b)  Right to file complaint.--

27

(1)  A patient of a hospital or other medical facility

28

aggrieved by the hospital's or facility's interference with

29

the full and free exercise of patient advocacy duties by a

30

direct care registered nurse shall have the right to make or

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1

file a complaint, cooperate, provide evidence, testify or

2

otherwise support or participate in any investigation or

3

complaint proceeding under sections 845-A and 846-A.

4

(2)  A direct care registered nurse of a hospital or

5

other medical facility aggrieved by the hospital's or

6

facility's interference with the full and free exercise of

7

patient advocacy duties shall have the right to make or file

8

a complaint, cooperate, provide evidence, testify or

9

otherwise support or participate in any investigation or

10

complaint proceeding under sections 845-A and 846-A.

11

Section 838-A.  Interference with rights and duties of free

12

speech and patient advocacy prohibited.

13

No hospital or other medical facility employer or its agents

14

may:

15

(1)  interfere with, restrain, coerce, intimidate or deny

16

the exercise of or the attempt to exercise, by any person of

17

any right provided or protected under this chapter; or

18

(2)  discriminate or retaliate against any person for

19

opposing any policy, practice or action of the hospital or

20

other medical facility which is alleged to violate, breach or

21

fail to comply with any provisions of this chapter.

22

Section 839-A.  No retaliation or discrimination for protected

23

actions.

24

No hospital or other medical facility employer may

25

discriminate or retaliate in any manner against any patient,

26

employee or contract employee of the hospital or other medical

27

facility or any other person because that person has:

28

(1)  presented a grievance or complaint or has initiated

29

or cooperated in any investigation or proceeding of any

30

governmental entity, regulatory agency or private

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1

accreditation body; or

2

(2)  made a civil claim or demand or filed an action

3

relating to the care, services or conditions of the hospital

4

or of any affiliated or related facilities.

5

Section 840-A.  Direct care registered nurse-to-patient staffing

6

ratios.

7

(a)  General requirements.--A hospital shall provide minimum

8

staffing by direct care registered nurses in accordance with the

9

general requirements of this subsection and the clinical unit or

10

clinical patient care area direct care registered nurse-to-

11

patient ratios specified in subsection (b). Staffing for patient

12

care tasks not requiring a direct care registered nurse is not

13

included within these ratios and shall be determined under an

14

acuity-based patient classification system, this section and

15

section 841-A. The requirements are as follows:

16

(1)  No hospital may assign a direct care registered

17

nurse to a nursing unit or clinical area unless that hospital

18

and the direct care registered nurse determine that the

19

direct care registered nurse has demonstrated and validated

20

current competence in providing care in that area and has

21

also received orientation to that hospital's clinical area

22

sufficient to provide competent, safe, therapeutic and

23

effective care to patients in that area. The policies and

24

procedures of the hospital shall contain the hospital's

25

criteria for making this determination.

26

(2)  (i)  Direct care registered nurse-to-patient

27

ratios represent the maximum number of patients that

28

shall be assigned to one direct care registered nurse at

29

all times.

30

(ii)  For purposes of this paragraph, "assigned"

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1

means the direct care registered nurse has responsibility

2

for the provision of care to a particular patient within

3

the direct care registered nurse's validated competency.

4

(3)  There shall be no averaging of the number of

5

patients and the total number of direct care registered

6

nurses on the unit during any one shift nor over any period

7

of time.

8

(4)  Only direct care registered nurses providing direct

9

patient care shall be included in the ratios. Nurse

10

administrators, nurse supervisors, nurse managers, charge

11

nurses and case managers shall not be included in the

12

calculation of the direct care registered nurse-to-patient

13

ratio. Only direct care registered nurses shall relieve other

14

direct care registered nurses during breaks, meals and other

15

routine, expected absences from the unit.

16

(5)  Only direct care registered nurses shall be assigned

17

to intensive care newborn nursery service units, which

18

specifically require one direct care registered nurse to two

19

or fewer infants at all times.

20

(6)  In the emergency department, only direct care

21

registered nurses shall be assigned to triage patients, and

22

only direct care registered nurses shall be assigned to

23

critical trauma patients.

24

(b)  Unit or patient care areas.--

25

(1)  The minimum staffing ratios for general, acute,

26

critical access and specialty hospitals are established in

27

this subsection for direct care registered nurses as follows:

28

(i)  The direct care registered nurse-to-patient

29

ratio in an intensive care unit shall be 1:2 or fewer at

30

all times.

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1

(ii)  The direct care registered nurse-to-patient

2

ratio for a critical care unit shall be 1:2 or fewer at

3

all times.

4

(iii)  The direct care registered nurse-to-patient

5

ratio for a neonatal intensive care unit shall be 1:2 or

6

fewer at all times.

7

(iv)   The direct care registered nurse-to-patient

8

ratio for a burn unit shall be 1:2 or fewer at all times.

9

(v)  The direct care registered nurse-to-patient

10

ratio for a step-down, intermediate care unit shall be

11

1:3 or fewer at all times.

12

(vi)  An operating room shall have at least one

13

direct care registered nurse assigned to the duties of

14

the circulating registered nurse and a minimum of one

15

additional person as a scrub assistant for each patient-

16

occupied operating room.

17

(vii)  The direct care registered nurse-to-patient

18

ratio in the postanesthesia recovery unit of an

19

anesthesia service shall be 1:2 or fewer at all times,

20

regardless of the type of anesthesia the patient

21

received.

22

(viii)  The direct care registered nurse-to-patient

23

ratio for patients receiving conscious sedation shall be

24

1:1 at all times.

25

(ix)  (A)  The direct care registered nurse-to-

26

patient ratio for an emergency department shall be

27

1:4 or fewer at all times.

28

(B)  The direct care registered nurse-to-patient

29

ratio for critical care patients in the emergency

30

department shall be 1:2 or fewer at all times.

- 18 -

 


1

(C)  Only direct care registered nurses shall be

2

assigned to critical trauma patients in the emergency

3

department, and a minimum direct care registered

4

nurse-to-critical trauma patient ratio of 1:1 shall

5

be maintained at all times.

6

(D)  In an emergency department, triage, radio or

7

specialty/flight, registered nurses do not count in

8

the calculation of direct care registered nurse-to-

9

patient ratio.

10

(x)  (A)  The direct care registered nurse-to-

11

patient ratio in the labor and delivery suite of

12

prenatal services shall be 1:1 at all times for

13

active labor patients and patients with medical or

14

obstetrical complications.

15

(B)  The direct care registered nurse-to-patient

16

ratio shall be 1:1 at all times for initiating

17

epidural anesthesia and circulation for cesarean

18

delivery.

19

(C)  The direct care registered nurse-to-patient

20

ratio for patients in immediate postpartum shall be

21

1:2 or fewer at all times.

22

(xi)  (A)  The direct care registered nurse-to-

23

patient ratio for antepartum patients who are not in

24

active labor shall be 1:3 or fewer at all times.

25

(B)  The direct care registered nurse-to-patient

26

ratio for patients in a postpartum area of the

27

prenatal service shall be 1:3 mother-baby couplets or

28

fewer at all times.

29

(C)  In the event of cesarean delivery, the total

30

number of mothers plus infants assigned to a single

- 19 -

 


1

direct care registered nurse shall never exceed four.

2

(D)  In the event of multiple births, the total

3

number of mothers plus infants assigned to a single

4

direct care registered nurse shall not exceed six.

5

(E)  For postpartum areas in which the direct

6

care registered nurse’s assignment consists of

7

mothers only, the direct care registered nurse-to-

8

patient ratio shall be 1:4 or fewer at all times.

9

(F)  The direct care registered nurse-to-patient

10

ratio for postpartum women or postsurgical

11

gynecological patients shall be 1:4 or fewer at all

12

times.

13

(G)  Well baby nursery direct care registered

14

nurse ratio shall be 1:5 or fewer at all times.

15

(H)  The direct care registered nurse-to-patient

16

ratio for unstable newborns and those in the

17

resuscitation period as assessed by the direct care

18

registered nurse shall be 1:1 at all times.

19

(I)  The direct care registered nurse-to-patient

20

ratio for recently born infants shall be 1:4 or fewer

21

at all times.

22

(xii)  The direct care registered nurse-to-patient

23

ratio for pediatrics shall be 1:3 or fewer at all times.

24

(xiii)  The direct care registered nurse-to-patient

25

ratio in telemetry shall be 1:3 or fewer at all times.

26

(xiv)  (A)  The direct care registered nurse-to-

27

patient ratio in medical/surgical shall be 1:4 or

28

fewer at all times.

29

(B)  The direct care registered nurse-to-patient

30

ratios for presurgical and admissions units or

- 20 -

 


1

ambulatory surgical units shall be 1:4 or fewer at

2

all times.

3

(xv)  The direct care registered nurse-to-patient

4

ratio in other specialty units shall be 1:4 or fewer at

5

all times.

6

(xvi)  The direct care registered nurse-to-patient

7

ratio in psychiatric units shall be 1:4 or fewer at all

8

times.

9

(xvii)  The direct care registered nurse-to-patient

10

ratio in a rehabilitation unit or a skilled nursing

11

facility shall be 1:5 or fewer at all times.

12

(c)   Additional conditions.--

13

(1)  Identifying a unit or clinical patient care area by

14

a name or term other than those defined in section 833-A does

15

not affect the requirement to staff at the direct care

16

registered nurse-to-patient ratios identified for the level

17

of intensity or type of care described in section 833-A and

18

this section.

19

(2)  (i)  Patients shall only be cared for on units or

20

clinical patient care areas where the level of intensity,

21

type of care and direct care registered nurse-to-patients

22

ratios meet the individual requirements and needs of each

23

patient.

24

(ii)  The use of patient acuity-adjustable units or

25

clinical patient care areas is prohibited.

26

(3)  Video cameras or monitors or any form of electronic

27

visualization of a patient shall not be deemed a substitute

28

for the direct observation required for patient assessment by

29

the direct care registered nurse and for patient protection

30

required by an attendant or sitter.

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1

Section 841-A.  Hospital unit staffing plans.

2

(a)  Acuity-based patient classification system.--

3

(1)  In addition to the direct care registered nurse

4

ratio requirements of subsection (b), a hospital shall assign

5

additional nursing staff, such as licensed practical nurses

6

and certified nursing assistants, through the implementation

7

of a valid acuity-based patient classification system for

8

determining nursing care needs of individual patients that

9

reflects the assessment made by the assigned direct care

10

registered nurse of patient nursing care requirements and

11

provides for shift-by-shift staffing based on those

12

requirements.

13

(2)  The ratios specified in subsection (b) shall

14

constitute the minimum number of registered nurses who shall

15

be assigned to direct patient care. Additional registered

16

nursing staff in excess of the prescribed ratios shall be

17

assigned to direct patient care in accordance with the

18

hospital's implementation of a valid system for determining

19

nursing care requirements.

20

(3)  Based on the direct care registered nurse assessment

21

as reflected in the implementation of a valid system and

22

independent direct care registered nurse determination of

23

patient care needs, additional licensed and nonlicensed staff

24

shall be assigned.

25

(b)  Development of written staffing plan.--

26

(1)  A written staffing plan shall be developed by the

27

chief nursing officer or a designee, based on individual

28

patient care needs determined by the system. The staffing

29

plan shall be developed and implemented for each patient care

30

unit and shall specify individual patient care requirements

- 22 -

 


1

and the staffing levels for direct care registered nurses and

2

other licensed and unlicensed personnel.

3

(2)  In no case shall the staffing level for direct care

4

registered nurses on any shifts fall below the requirements

5

of this subsection.

6

(3)  The plan shall include the following:

7

(i)  Staffing requirements as determined by the

8

system for each unit, documented and posted on the unit

9

for public view on a day-to-day, shift-by-shift basis.

10

(ii)  The actual staff and staff mix provided,

11

documented and posted on the unit for public view on a

12

day-to-day, shift-by-shift basis.

13

(iii)  The variance between required and actual

14

staffing patterns, documented and posted on the unit for

15

public view on a day-to-day, shift-by-shift basis.

16

(c)  Recordkeeping.--In addition to the documentation

17

required in subsection (b), the hospital shall keep a record of

18

the actual direct care registered nurse, licensed practical

19

nurse and certified nursing assistant assignments to individual

20

patients by licensure category, documented on a day-to-day,

21

shift-by-shift basis. The hospital shall retain:

22

(1)  The staffing plan required in subsection (b) for a

23

period of two years.

24

(2)  The record of the actual direct care registered

25

nurse, licensed practical nurse and certified nursing

26

assistant assignments by licensure and nonlicensure category.

27

(d)  Review committee to conduct annual review of system.--

28

The reliability of the system for validating staffing

29

requirements shall be reviewed at least annually by a committee

30

to determine whether the system accurately measures individual

- 23 -

 


1

patient care needs and completely predicts direct care

2

registered nurse, licensed practical nurse and certified nursing

3

assistant staffing requirements based exclusively on individual

4

patient needs.

5

(e)  Review committee membership.--

6

(1)  At least half of the members of the review committee

7

shall be unit-specific, competent direct care registered

8

nurses who provide direct patient care.

9

(2)  The members of the committee shall be appointed by

10

the chief nurse officer, except where direct care registered

11

nurses are represented for collective bargaining purposes,

12

all direct care registered nurses on the committee shall be

13

appointed by the authorized collective bargaining agent.

14

(3)  In case of a dispute, the direct care registered

15

nurse assessment shall prevail.

16

(f)  Time period for adjustments.--If the review committee

17

determines that adjustments are necessary in order to assure

18

accuracy in measuring patient care needs, the adjustments shall

19

be implemented within 30 days of that determination.

20

(g)  Process for staff input.--A hospital shall develop and

21

document a process by which all interested staff may provide

22

input about the system's required revisions and the overall

23

staffing plan.

24

(h)  Limitation on administrator of nursing services.--The

25

administrator of nursing services may not be designated to serve

26

as a charge nurse or to have direct patient care responsibility.

27

(i)  Minimum requirement for each shift.--Each patient care

28

unit shall have at least one direct care registered nurse

29

assigned, present and responsible for the patient care in the

30

unit on each shift.

- 24 -

 


1

(j)  Temporary nursing agencies.--

2

(1)  Nursing personnel from temporary nursing agencies

3

may not be responsible for patient care on any clinical unit

4

without having demonstrated and validated clinical competency

5

on the assigned unit.

6

(2)  A hospital that utilizes temporary nursing agencies

7

shall have and adhere to a written procedure to orient and

8

evaluate personnel from these sources. In order to ensure

9

clinical competence of temporary agency personnel, the

10

procedures shall require that personnel from temporary

11

nursing agencies be evaluated as often, or more often, than

12

staff employed directly by the hospital.

13

(k)  Planning for routine fluctuations.--

14

(1)  A hospital shall plan for routine fluctuations, such

15

as admissions, discharges and transfers in patient census.

16

(2)  If a health care emergency causes a change in the

17

number of patients on a unit, the hospital shall demonstrate

18

that immediate and diligent efforts were made to maintain

19

required staffing levels.

20

(3)  For purposes of this subsection, a "health care"

21

emergency is defined as an emergency declared by the Federal

22

Government or the head of a State, local, county or municipal

23

government.

24

Section 842-A.  Minimum requirements for hospital systems.

25

(a)  General rule.--A hospital shall:

26

(1)  Adopt an acuity-based patient classification system,

27

including a written nursing care staffing plan for each

28

patient care unit.

29

(2)  Implement, evaluate and modify the plan as necessary

30

and appropriate under the provisions of this section.

- 25 -

 


1

(3)  Provide direct care nurse staffing based on

2

individual patient need determined in accordance with the

3

requirements of this section.

4

(4)  Use the system to determine additional direct care

5

registered nursing staffing above the minimum staffing ratios

6

required by subsection (b) and any staffing by licensed

7

practical nurses or unlicensed nursing personnel.

8

(b)  Required elements.--The system used by a hospital for

9

determining patient nursing care needs shall include, but not be

10

limited to, the following elements:

11

(1)  A method to predict nursing care requirements of

12

individual patient assessments and as determined by direct

13

care registered nurse assessments of individual patients.

14

(2)  A method that provides for sufficient direct care

15

registered nursing staffing to ensure that all of the

16

elements in this subsection are performed in the planning and

17

delivery of care for each patient: assessment, nursing

18

diagnosis, planning and intervention.

19

(3)  An established method by which the amount of nursing

20

care needed for each category of patient is validated.

21

(4)  A method for validation of the reliability of the

22

system.

23

(c)  Transparency of system.--

24

(1)  A system shall be fully transparent in all respects,

25

including:

26

(i)  Disclosure of detailed documentation of the

27

methodology used by the system to predict nursing

28

staffing.

29

(ii)  Identification of each factor, assumption and

30

value used in applying the methodology.

- 26 -

 


1

(iii)  An explanation of the scientific and empirical

2

basis for each such assumption and value and

3

certification by a knowledgeable and authorized

4

representative of the hospital that the aforementioned

5

disclosures regarding methods used for testing and

6

validating the accuracy and reliability of the system are

7

true and complete.

8

(2)  A hospital shall include in the documentation

9

required by this section an evaluation and a report on at

10

least an annual basis, which evaluation and report shall be

11

conducted and prepared by a committee consisting exclusively

12

of direct care registered nurses who have provided direct

13

patient care in the units covered by the system. Where direct

14

care registered nurses are represented for collective

15

bargaining purposes, all direct care registered nurses on the

16

committee shall be appointed by the authorized collective

17

bargaining agent.

18

(d)  Submission to Department of Health.--

19

(1)  The documentation required by this section shall be

20

submitted in its entirety to the Department of Health as a

21

mandatory condition of hospital licensure, with a

22

certification by the chief nurse officer for the hospital

23

that it completely and accurately reflects implementation of

24

a valid system used to determine nursing service staffing by

25

the hospital for every shift on every clinical unit in which

26

patients reside and receive care.

27

(2)  The certification shall be executed by the chief

28

nurse officer under penalty of perjury and shall contain an

29

express acknowledgment that any false statement in the

30

certification shall constitute fraud and be subject to

- 27 -

 


1

criminal and civil prosecution and penalties under the

2

antifraud provisions applicable to false claims for

3

government funds or benefits.

4

(3)  The documentation shall be available for public

5

inspection in its entirety in accordance with procedures

6

established by appropriate administrative regulation

7

consistent with the purposes of this chapter.

8

Section 843-A.  Prohibited activities.

9

The following activities are prohibited:

10

(1)  A hospital shall not directly assign any unlicensed

11

personnel to perform registered nurse functions in lieu of

12

care delivered by a licensed registered nurse and shall not

13

assign unlicensed personnel to perform registered nurse

14

functions under the clinical supervision of a direct care

15

registered nurse.

16

(2)  Unlicensed personnel may not perform tasks that

17

require the clinical assessment, judgment and skill of a

18

licensed registered nurse, including, without limitation:

19

(i)  Nursing activities that require nursing

20

assessment and judgment during implementation.

21

(ii)  Physical, psychological and social assessments

22

that require nursing judgment, intervention, referral or

23

follow-up.

24

(iii)  Formulation of a plan of nursing care and

25

evaluation of the patient's response to the care

26

provided.

27

(iv)  Administration of medication, venipuncture or

28

intravenous therapy, parenteral or tube feedings,

29

invasive procedures, including inserting nasogastric

30

tubes, inserting catheters or tracheal suctioning.

- 28 -

 


1

(v)  Educating patients and their families concerning

2

the patient’s health care problems, including

3

postdischarge care.

4

(c)  Mandatory overtime.--A hospital shall not impose

5

mandatory overtime requirements to meet the staffing ratios

6

imposed in section 840-A.

7

Section 844-A.  Fines and civil penalties.

8

The following fines and penalties shall apply to violations

9

of this chapter:

10

(1)  A hospital found to have violated or aided and

11

abetted section 841-A, 842-A or 843-A shall be subject, in

12

addition to any other penalties that may be prescribed by

13

law, to a civil penalty of not more than $25,000 for each

14

violation and an additional $10,000 per nursing unit shift

15

until the violation is corrected.

16

(2)  A hospital employer found to have violated or

17

interfered with any of the rights or protections provided and

18

guaranteed under sections 836-A, 837-A, 838-A, 839-A and

19

840-A shall be subject to a civil penalty of not more than

20

$25,000 for each such violation or occurrence of prohibited

21

conduct.

22

(3)  Any hospital management, nursing service or medical

23

personnel found to have violated or interfered with any of

24

the rights or protections provided and guaranteed under

25

sections 836-A, 837-A, 838-A, 839-A and 840-A shall be

26

subject to a civil penalty of not more than $20,000 for each

27

such violation or occurrence of prohibited conduct.

28

Section 845-A.  Private right of action.

29

(a)  General rule.--A health care facility that violates the

30

rights of an employee specified in sections 835-A, 836-A, 837-A,

- 29 -

 


1

838-A and 839-A may be held liable to the employee in an action

2

brought in a court of competent jurisdiction for such legal or

3

equitable relief as may be appropriate to effectuate the

4

purposes of this chapter, including, but not limited to,

5

reinstatement, promotion, lost wages and benefits and

6

compensatory and consequential damages resulting from the

7

violations together with an equal amount in liquidated damages.

8

The court in the action shall, in addition to any judgment

9

awarded to the plaintiffs, award reasonable attorney fees and

10

costs of action to be paid by the defendants. The employee's

11

right to institute a privation action is not limited by any

12

other rights granted under this chapter.

13

(b)  Relief for nurses.--In addition to the amount recovered

14

under subsection (d), a nurse whose employment is suspended or

15

terminated in violation of this section is entitled to:

16

(1)  Reinstatement in the nurse's former position or

17

severance pay in an amount equal to three months of the

18

nurse's most recent salary.

19

(2)  Compensation for wages lost during the period of

20

suspension or termination.

21

(3)  An award of reasonable attorney fees and costs as

22

the prevailing party.

23

Section 846-A.  Enforcement procedure.

24

(a)  Period of limitations.--

25

(1)  Except as otherwise provided in paragraph (2), in

26

the case of any action brought for a willful violation of the

27

applicable provisions of this chapter, the action must be

28

brought within three years of the date of the last event

29

constituting the alleged violation for which such action is

30

brought.

- 30 -

 


1

(2)  An action must be brought under section 845-A no

2

later than two years after the date of the last event

3

constituting the alleged violation for which the action is

4

brought.

5

(b)  Posting requirements.--A hospital and other medical

6

facility shall post the following provisions of this chapter in

7

a prominent place for review by the public and the employees.

8

The posting shall have a title across the top in no less than 35

9

point, bold typeface stating the following: "RIGHTS OF

10

REGISTERED NURSES AS PATIENT ADVOCATES, EMPLOYEES AND PATIENTS."

11

Section 2.  This act shall take effect in 60 days.

- 31 -

 


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