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
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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. 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
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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 * * *
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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.
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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 * * *
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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
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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.
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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
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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
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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
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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;
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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
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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
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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
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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
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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.
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