PRINTER'S NO. 4105
No. 2742 Session of 2002
INTRODUCED BY SOLOBAY, VEON, BELFANTI, O'BRIEN, GEORGE, DeLUCA,
YUDICHAK, GRUCELA, COSTA, MICHLOVIC, EACHUS, HALUSKA,
LESCOVITZ, BISHOP, WALKO, LAUGHLIN, BEBKO-JONES, HARHAI,
SHANER, RAYMOND, PETRARCA, LEVDANSKY, PISTELLA, WANSACZ,
FREEMAN, YOUNGBLOOD, HORSEY, STEELMAN, J. WILLIAMS,
TANGRETTI, WATERS, CURRY, BOYES, BROWNE, SURRA AND
WASHINGTON, JUNE 25, 2002
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
JUNE 25, 2002
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, for grants and loan programs for
18 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
15 such a coordinated health care system, it is the policy of
16 the 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
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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. The basic principles of
7 staffing in health care facilities should be focused on
8 patient health care needs and based on consideration of
9 patient acuity levels and services that need to be provided
10 to ensure optimal outcomes.
11 The setting of staffing standards for registered nurses is not
12 to be interpreted as justifying the understaffing of other
13 critical health care workers, including licensed practical
14 nurses and unlicensed assistive personnel. Indeed, the
15 availability of these other health care workers enables
16 registered nurses to focus on the nursing care functions that
17 only registered nurses, by law, are permitted to perform and
18 thereby helps to ensure adequate staffing levels. Establishing
19 staffing standards for registered nurses in acute care
20 facilities ensures that health care facilities throughout this
21 Commonwealth operate in a manner that guarantees the public
22 safety and the delivery of quality health care services. In
23 order to meet these standards incentives must be created to
24 increase the number of registered nurses within this
25 Commonwealth.
26 Section 2. Section 103 of the act is amended by adding
27 definitions to read:
28 Section 103. Definitions.
29 The following words and phrases when used in this act shall
30 have, unless the context clearly indicates otherwise, the
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1 meanings given to them in this section:
2 * * *
3 "Acuity system." An established measurement instrument which
4 predicts nursing care requirements for individual patients based
5 on severity of patient illness, need for specialized equipment
6 and technology, intensity of nursing interventions required and
7 the complexity of clinical nursing judgment needed to design,
8 implement and evaluate the patient's nursing care plan, details
9 the amount of nursing care needed, both in number of direct care
10 nurses and in skill mix of nursing personnel required on a daily
11 basis for each patient in a nursing department or unit and is
12 stated in terms that readily can be used and understood by
13 direct-care nurses. The acuity system shall take into
14 consideration the patient care services provided not only by
15 registered nurses but also by licensed practical nurses and
16 other health care personnel.
17 "Assessment tool." A measurement system which compares the
18 staffing level in each nursing department or unit against actual
19 patient nursing care requirements in order to review the
20 accuracy of an acuity system.
21 * * *
22 "Direct-care nurse." A registered nurse who has direct
23 responsibility to oversee or carry out medical regimens, nursing
24 or other bedside care for one or more patients.
25 "Documented staffing plan." A detailed written plan setting
26 forth the minimum number and classification of direct-care
27 nurses required in each nursing department or unit in the health
28 facility for a given year, based on reasonable projections
29 derived from the patient census and average acuity level within
30 each department or unit during the prior year, the department or
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1 unit size and geography, the nature of services provided and any
2 foreseeable changes in department or unit size or function
3 during the current year.
4 "Extended care facility." A home health care agency, a
5 hospice or a long-term care nursing facility.
6 * * *
7 "Nurse" or "registered nurse." An individual licensed to
8 practice professional nursing under the act of May 22, 1951
9 (P.L.317, No.69), known as "The Professional Nursing Law."
10 "Nursing care." Care which falls within the scope of
11 practice as prescribed by State law or otherwise encompassed
12 within recognized professional standards of nursing practice,
13 including assessment, nursing diagnosis, planning, intervention,
14 evaluation and patient advocacy.
15 * * *
16 "Staffing level." The actual numerical nurse-to-patient
17 ratio within a nursing department or unit.
18 * * *
19 "Unit." A patient care component within a facility as
20 defined by the Department of Health.
21 Section 3. Section 803 of the act, added July 12, 1980
22 (P.L.655, No.136), is amended to read:
23 Section 803. Powers of the Department of Health.
24 The Department of Health shall have the power and its duty
25 shall be:
26 (1) to promulgate, after consultation with the policy
27 board, the rules and regulations necessary to carry out the
28 purposes and provisions of this chapter[; and], including
29 regulations defining terms, setting forth direct-care nurse-
30 to-patient ratios and prescribing the process for approving
20020H2742B4105 - 5 -
1 acuity systems;
2 (2) to assure that the provisions of this chapter and
3 all rules and regulations promulgated under this chapter are
4 enforced[.]; and
5 (3) to promulgate, within six months of the effective
6 date of this paragraph, regulations providing for an
7 accessible and confidential system to report the failure to
8 comply with requirements of this chapter and public access to
9 information regarding reports of inspections, results,
10 deficiencies and corrections under this chapter.
11 Section 4. Sections 804 and 806 of the act are amended by
12 adding subsections to read:
13 Section 804. Administration.
14 * * *
15 (e) Approval of acuity system.--The department shall adopt
16 regulations prescribing the method by which it will approve a
17 facility's acuity system. The regulations may include a system
18 for class approval of acuity systems.
19 Section 806. Licensure.
20 * * *
21 (h) Staffing requirements.--Each health care facility, other
22 than an extended care facility, licensed pursuant to this act
23 shall ensure that it is staffed in a manner that provides
24 sufficient, appropriately qualified direct-care nurses in each
25 department or unit within the facility in order to meet the
26 individualized care needs of its patients and to meet all of the
27 following requirements:
28 (1) As a condition of licensing, each facility annually
29 shall submit to the department a documented staffing plan
30 together with a written certification that the staffing plan
20020H2742B4105 - 6 -
1 is sufficient to provide adequate and appropriate delivery of
2 health care services to patients for the ensuing year and
3 does all of the following:
4 (i) meets the minimum requirements of paragraph (2);
5 (ii) meets any additional requirements of other laws
6 or regulations;
7 (iii) employs and identifies an approved acuity
8 system for addressing fluctuations in actual patient
9 acuity levels and nursing care requirements requiring
10 increased staffing levels above the minimums set forth in
11 the plan;
12 (iv) factors in other unit or department activity
13 such as discharges, transfers and admissions,
14 administrative and support tasks that are expected to be
15 done by direct-care nurses in addition to direct nursing
16 care;
17 (v) factors in the staffing level of and services
18 provided by other health care personnel in meeting
19 patient care needs;
20 (vi) identifies the assessment tool used to validate
21 the acuity system relied on in the plan;
22 (vii) identifies the system which will be used to
23 document actual staffing on a daily basis within each
24 department or unit;
25 (viii) includes a written assessment of the accuracy
26 of the prior year's staffing plan in light of actual
27 staffing needs;
28 (ix) identifies each nurse staff classification
29 referenced in the plan together with a statement setting
30 forth minimum qualifications for each such
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1 classification; and
2 (x) is produced in consultation with a majority of
3 the direct-care nurses within each department or unit or,
4 where applicable, with the recognized or certified
5 collective bargaining representative or representative of
6 the direct-care nurses.
7 (2) The staffing plan must incorporate, at a minimum,
8 the following direct-care nurse-to-patient ratios:
9 (i) One nurse to one patient: operating room and
10 trauma emergency units.
11 (ii) One nurse to two patients: all critical care
12 areas including emergency critical care and all intensive
13 care units, labor and delivery units and postanesthesia
14 units.
15 (iii) One nurse to three patients: antepartum,
16 emergency room, pediatrics, step-down and telemetry
17 units.
18 (iv) One nurse to four patients: intermediate care
19 nursery, and medical/surgical and acute care psychiatric
20 units.
21 (v) One nurse to five patients: rehabilitation
22 units.
23 (vi) One nurse to six patients: postpartum (three
24 couplets) and well-baby nursery units.
25 (vii) For any units not listed above, including
26 psychiatric units in facilities other than acute care
27 hospitals, such direct-care nurse-to-patient ratio as
28 established by the department.
29 (3) The ratios set forth in paragraph (2) shall
30 constitute the minimum number of direct-care nurses to be
20020H2742B4105 - 8 -
1 allocated within a department or unit. Additional direct-care
2 nurses must be added and the ratio adjusted to ensure
3 adequate staffing of each nursing department or unit, in
4 accordance with an approved acuity system.
5 (4) Nothing shall preclude the department from
6 establishing and requiring a staffing plan to have higher
7 nurse-to-patient ratios than those set forth in paragraph
8 (2).
9 (5) The staffing plan may not incorporate or assume that
10 nursing care functions required by licensing law or
11 regulations or accepted standards of practice to be performed
12 by a registered nurse are to be performed by other personnel.
13 Section 5. The act is amended by adding sections to read:
14 Section 806.2. Compliance with staffing plan and recordkeeping.
15 (a) Plan.--As a condition of licensing, a health care
16 facility required to have a staffing plan under section 806(h)
17 shall at all times staff in accordance with its staffing plan
18 and the staffing standards set forth under section 806(h),
19 provided that nothing herein shall be deemed to preclude any
20 such health care facility from implementing higher direct-care
21 nurse-to-patient staffing levels, nor shall the requirements set
22 forth be deemed to supersede or replace any higher requirements
23 otherwise mandated by law, regulation or contract.
24 (b) Appropriate license required.--For purposes of
25 compliance with the minimum staffing requirements standards set
26 forth under section 806(h), no nurse shall be assigned, or
27 included in the count of assigned nursing staff in a nursing
28 department or unit or a clinical area within the health facility
29 unless that nurse has an appropriate license under the
30 applicable registered nurse law, received prior orientation in
20020H2742B4105 - 9 -
1 that clinical area sufficient to provide competent nursing care
2 to the patients in that area, and has demonstrated current
3 competence in providing care in that area.
4 (c) Daily records.--As a condition of licensure, each health
5 care facility required to have a staffing plan under section
6 806(h) shall maintain accurate daily records showing:
7 (1) The number of patients admitted, released and
8 present in each nursing department or unit within the
9 facility.
10 (2) The individual acuity level of each patient present
11 in each nursing department or unit within the facility.
12 (3) The identity and duty hours of each direct-care
13 nurse in each nursing department or unit within the facility.
14 (d) Daily statistics.--As a condition of licensure, each
15 health care facility required to have a staffing plan under
16 section 806(h) shall maintain daily statistics, by nursing
17 department and unit, of mortality, morbidity, infection,
18 accident, injury and medical errors.
19 (e) Records retention.--All records required to be kept
20 under this subsection shall be maintained for a period of seven
21 years.
22 (f) Availability of records.--All records required to be
23 kept under this subsection shall be made available upon request
24 to the department and to the public, provided that information
25 released to the public shall comply with applicable patient
26 privacy laws and regulations.
27 Section 806.3. Work assignment policy.
28 (a) Written policy.--As a condition of licensure, each
29 health care facility other than an extended care facility shall
30 adopt, disseminate to direct-care nurses and comply with a
20020H2742B4105 - 10 -
1 written policy that meets the requirements of this section,
2 detailing the circumstances under which a direct-care nurse may
3 refuse a work assignment.
4 (b) Minimum conditions.--At a minimum, the work assignment
5 policy shall permit a direct-care nurse to refuse an assignment
6 for which:
7 (1) The nurse is not prepared by education, training or
8 experience to safely fulfill the assignment without
9 compromising or jeopardizing patient safety, the nurse's
10 ability to meet foreseeable patient needs or the nurse's
11 license.
12 (2) The assignment otherwise would violate requirements
13 under this act.
14 (c) Minimum procedures.--At a minimum, the work assignment
15 policy shall contain procedures for the following:
16 (1) Reasonable requirements for prior notice to the
17 nurse's supervisor regarding the nurse's request and
18 supporting reasons for being relieved of the assignment or
19 continued duty.
20 (2) Where feasible, an opportunity for the supervisor to
21 review the specific conditions supporting the nurse's
22 request, and to decide whether to remedy the conditions, to
23 relieve the nurse of the assignment or to deny the nurse's
24 request to be relieved of the assignment or continued duty.
25 (3) A process which permits the nurse to exercise the
26 right to refuse the assignment or continued on-duty status
27 when the supervisor denies the request to be relieved if:
28 (i) the supervisor rejects the request without
29 proposing a remedy or the proposed remedy would be
30 inadequate or untimely;
20020H2742B4105 - 11 -
1 (ii) the complaint and investigation process with a
2 regulatory agency would be untimely to address concern;
3 and
4 (iii) the employee in good faith believes that the
5 assignment meets conditions justifying refusal.
6 (4) A nurse who refuses an assignment pursuant to a work
7 assignment policy established in this section shall not be
8 deemed, by reason thereof, to have engaged in negligent or
9 incompetent action, patient abandonment or otherwise to have
10 violated applicable nursing law.
11 Section 806.4. Public disclosure of staffing requirements.
12 As a condition of licensing, a health care facility required
13 to have a staffing plan under section 806(h) shall:
14 (1) Post in a conspicuous place readily accessible to
15 the general public a notice prepared by the department
16 setting forth the mandatory provisions of this act relating
17 to staffing together with a statement of the mandatory and
18 actual daily nurse staffing levels in each nursing department
19 or unit.
20 (2) Upon request, make copies of the staffing plan filed
21 with the department available to the public.
22 (3) Make readily available to the nursing staff with a
23 department or unit, during each work shift, the following
24 information:
25 (i) A copy of the current staffing plan for that
26 department or unit.
27 (ii) Documentation of the number of direct-care
28 nurses required to be present during the shift based on
29 the approved adopted acuity system.
30 (iii) Documentation of the actual number of direct-
20020H2742B4105 - 12 -
1 care nurses present during the shift.
2 Section 6. Section 808(a) of the act, amended December 18,
3 1992 (P.L.1602, No.179), is amended to read:
4 Section 808. Issuance of license.
5 (a) Standards.--The department shall issue a license to a
6 health care provider when it is satisfied that the following
7 standards have been met:
8 (1) that the health care provider is a responsible
9 person;
10 (2) that the place to be used as a health care facility
11 is adequately constructed, equipped, maintained and operated
12 to safely and efficiently render the services offered;
13 (3) that the health care facility provides safe and
14 efficient services which are adequate for the care, treatment
15 and comfort of the patients or residents of such facility;
16 (4) that there is substantial compliance with the rules
17 and regulations adopted by the department pursuant to this
18 act; [and]
19 (5) that a certificate of need has been issued if one is
20 necessary[.]; and
21 (6) in the case of a health care facility required to
22 have a staffing plan under section 806(h), that the facility
23 has submitted a documented staffing plan and is operating in
24 compliance with the requirements of this chapter and in
25 applicable regulations.
26 * * *
27 Section 7. Section 810 of the act is amended by adding a
28 subsection to read:
29 Section 810. Reliance on accrediting agencies and Federal
30 Government.
20020H2742B4105 - 13 -
1 * * *
2 (d) Delegation prohibited.--This section shall not be
3 construed to permit the department to delegate any of its
4 functions with respect to the staffing requirements of this
5 chapter.
6 Section 8. Section 815(c) of the act, added July 12, 1980
7 (P.L.655, No.136), is amended to read:
8 Section 815. Effect of departmental orders.
9 * * *
10 (c) Medical assistance payments.--Orders of the department,
11 to the extent that they are sustained by the board, which fail
12 to renew a license or which suspend or revoke a license, shall
13 likewise revoke or suspend certification of the facility as a
14 medical assistance provider, and no medical assistance payment
15 for services rendered subsequent to the final order shall be
16 made during the pendency of an appeal for the period of
17 revocation or suspension without an order of supersedeas by the
18 appellate court. Any health care facility that falsifies or
19 causes to be falsified documentation required by this act shall
20 be prohibited from receiving any medical assistance payment for
21 a period of six months subsequent to the final order of
22 violation.
23 Section 9. Section 817(b) of the act, amended December 18,
24 1992 (P.L.1602, No.179), is amended and the section is amended
25 by adding subsections to read:
26 Section 817. Actions against violations of law, rules and
27 regulations.
28 * * *
29 (b) Civil penalty.--Any person, regardless of whether such
30 person is a licensee, who has committed a violation of any of
20020H2742B4105 - 14 -
1 the provisions of this chapter or of any rule or regulation
2 issued pursuant thereto, including failure to correct a serious
3 licensure violation (as defined by regulation) within the time
4 specified in a deficiency citation, may be assessed a civil
5 penalty by an order of the department of up to $500 for each
6 deficiency for each day that each deficiency continues[.],
7 provided that a health care facility required to have a staffing
8 plan under section 806(h) that fails to comply with the
9 requirements of section 806.2(c) and reporting requirements of
10 this act may be assessed a civil penalty by an order of the
11 department of up to $10,000 for each day of noncompliance. Civil
12 penalties shall be collected from the date the facility receives
13 notice of the violation until the department confirms correction
14 of such violation.
15 * * *
16 (e) Discharge or discrimination.--No person shall discharge,
17 discriminate or in any manner retaliate against any employee
18 because such employee has filed any complaint or instituted or
19 caused to be instituted any proceeding under or related to this
20 act or has testified or is about to testify in any such
21 proceeding or because of the exercise by such employee on behalf
22 of himself or others of any right afforded by this act.
23 (f) Private right of action.--Any health care facility other
24 than an extended care facility which violates the rights of an
25 employee set forth in subsection (e) or under an adopted work
26 assignment policy under section 806.3 may be held liable to such
27 employee in an action brought in a court of competent
28 jurisdiction for such legal or equitable relief as may be
29 appropriate to effectuate the purposes of this act, including,
30 but not limited to, reinstatement, promotion, lost wages and
20020H2742B4105 - 15 -
1 benefits, and compensatory and consequential damages resulting
2 from the violations together with an equal amount in liquidated
3 damages. The court in such action shall, in addition to any
4 judgment awarded to the plaintiffs, award reasonable attorney
5 fees and costs of action to be paid by the defendants. The
6 employee's right to institute a private action is not limited by
7 any other rights granted under this act.
8 Section 10. The act is amended by adding a section to read:
9 Section 902.2. Nurse recruitment.
10 (a) Nurse recruitment grant program.--
11 (1) The department shall award grants as provided herein
12 to increase nursing education opportunities.
13 (2) Eligible entities to whom grants may be provided
14 include the following: a health care facility, a labor
15 organization representing registered nurses in this
16 Commonwealth, or an approved nursing education program for
17 the preparation of professional registered nurses in
18 accordance with the requirements of the professional nursing
19 law.
20 (3) Grants shall be available to:
21 (i) Support outreach programs at elementary and
22 secondary schools that inform guidance counselors and
23 students of education opportunities regarding nursing.
24 (ii) Create demonstration programs to provide
25 mentors for high school students designed to encourage
26 them to enter a career in professional nursing.
27 (iii) Provide scholarships and/or tuition
28 reimbursement to Pennsylvania residents from diverse
29 racial and ethnic backgrounds who want to become
30 registered nurses. To be eligible for a scholarship or
20020H2742B4105 - 16 -
1 tuition reimbursement, students shall meet designated
2 academic criteria and be accepted into an approved
3 nursing program. Scholarships and/or tuition
4 reimbursement may be conditioned on a commitment of paid
5 service up to three years. Preference for scholarships
6 shall be given to students who are from under-represented
7 ethnic and minority backgrounds or who are otherwise
8 under-represented in the profession of nursing. Students
9 who are awarded the scholarships owe the hospital three
10 years of service at full pay or else face a penalty of
11 treble the scholarship amount plus interest.
12 (b) Career ladder grant program.--
13 (1) The department shall award grants to health care
14 facilities to assist in creating career ladder programs that
15 will encourage employees to obtain the education required to
16 become registered nurses. In making such awards, preference
17 shall be given to health care facilities that have active
18 labor management cooperative programs.
19 (2) Grants provided under this subsection shall be used
20 to cover costs incurred by employees of the health care
21 facility who enroll in an approved program to become
22 registered nurses, including tuition costs, work release time
23 and dependent care costs.
24 (c) Nursing facility loan program.--The department shall
25 establish and implement a grant program designed to encourage
26 health care facilities to loan professional nursing staff to
27 serve as faculty at approved nursing schools and/or nursing
28 education programs.
29 Section 11. This act shall take effect in one year.
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