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PRINTER'S NO. 981
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
867
Session of
2019
INTRODUCED BY DiGIROLAMO, A. DAVIS, SNYDER, T. DAVIS, KINSEY,
YOUNGBLOOD, MULLINS, READSHAW, MILLARD, BOBACK, MURT, BARRAR,
HARKINS, MULLERY, OTTEN, FREEMAN, KORTZ, DEASY, HILL-EVANS,
GOODMAN, McCLINTON, DeLUCA, CIRESI, NEILSON, SIMS, DONATUCCI,
BULLOCK, GALLOWAY, MEHAFFIE, M. K. KELLER, CARROLL, BOYLE,
WEBSTER, ROEBUCK, INNAMORATO, FARRY, McCARTER AND FRANKEL,
MARCH 18, 2019
REFERRED TO COMMITTEE ON HEALTH, MARCH 18, 2019
AN ACT
Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An
act relating to health care; prescribing the powers and
duties of the Department of Health; establishing and
providing the powers and duties of the State Health
Coordinating Council, health systems agencies and Health Care
Policy Board in the Department of Health, and State Health
Facility Hearing Board in the Department of Justice;
providing for certification of need of health care providers
and prescribing penalties," providing for hospital patient
protection.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The act of July 19, 1979 (P.L.130, No.48), known
as the Health Care Facilities Act, is amended by adding a
chapter to read:
CHAPTER 8-A
HOSPITAL PATIENT PROTECTION
Section 831-A. Scope of chapter.
This chapter provides for hospital patient protection.
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Section 832-A. Purpose.
The General Assembly finds that:
(1) Health care services are becoming more complex, and
it is increasingly difficult for patients to access
integrated services.
(2) Competent, safe, therapeutic and effective patient
care is jeopardized because of staffing changes implemented
in response to market-driven managed care.
(3) To ensure effective protection of patients in acute
care settings, it is essential that qualified direct care
registered nurses be accessible and available to meet the
individual needs of patients at all times.
(4) To ensure the health and welfare of Pennsylvania
citizens, mandatory hospital direct care professional nursing
practice standards and professional practice protections must
be established to assure that hospital nursing care is
provided in the exclusive interests of patients.
(5) Direct care registered nurses have a fiduciary duty
to assigned patients and necessary duty and right of patient
advocacy and collective patient advocacy to satisfy
professional fiduciary obligations.
(6) The basic principles of staffing in hospital
settings should be based on the individual patient's care
needs, the severity of the condition, services needed and the
complexity surrounding those services.
(7) Current unsafe hospital direct care registered nurse
staffing practices have resulted in adverse patient outcome.
(8) Mandating adoption of uniform, minimum, numerical
and specific registered nurse-to-patient staffing ratios by
licensed hospital facilities is necessary for competent,
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safe, therapeutic and effective professional nursing care and
for retention and recruitment of qualified direct care
registered nurses.
(9) Direct care registered nurses must be able to
advocate for their patients without fear of retaliation from
their employer.
(10) Whistleblower protections that encourage registered
nurses and patients to notify government and private
accreditation entities of suspected unsafe patient
conditions, including protection against retaliation for
refusing unsafe patient care assignments by competent
registered nurse staff, will greatly enhance the health,
welfare and safety of patients.
Section 833-A. Definitions.
The following words and phrases when used in this chapter
shall have the meaning given to them in this section unless the
context clearly indicates otherwise:
"Acuity-based patient classification system" or "system." A
standardized set of criteria based on scientific data that acts
as a measurement instrument used to predict registered nursing
care requirements for individual patients based on:
(1) The severity of patient illness.
(2) The need for specialized equipment and technology.
(3) The intensity of required nursing interventions.
(4) The complexity of clinical nursing judgment required
to design, implement and evaluate the patient's nursing care
plan consistent with professional standards.
(5) The ability for self-care, including motor, sensory
and cognitive deficits.
(6) The need for advocacy intervention.
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(7) The licensure of the personnel required for care.
(8) The patient care delivery system.
(9) The unit's geographic layout.
(10) Generally accepted standards of nursing practice,
as well as elements reflective of the unique nature of the
acute care hospital's patient population.
The system determines the additional number of direct care
registered nurses and other licensed and unlicensed nursing
staff the hospital must assign, based on the independent
professional judgment of the direct care registered nurse, to
meet the individual patient needs at all times.
"Ancillary staff." Personnel employed by or contracted to
work at a facility that have an effect on the delivery of
quality care to patients, including, but not limited to,
licensed practical nurses, unlicensed assistive personnel,
service, maintenance, clerical, professional and technical
workers and all other health care workers.
"Artificial life support." A system that uses medical
technology to aid, support or replace a vital function of the
body that has been seriously damaged.
"Clinical judgment." The application of a direct care
registered nurse's knowledge, skill, expertise and experience in
making independent decisions about patient care.
"Clinical supervision." The assignment and direction of
patient care tasks required in the implementation of nursing
care for a patient to other licensed nursing staff or to
unlicensed staff by a direct care registered nurse in the
exclusive interests of the patient.
"Competence." The current documented, demonstrated and
validated ability of a direct care registered nurse to act and
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integrate the knowledge, skills, abilities and independent
professional judgment that underpin safe, therapeutic and
effective patient care and which ability is based on the
satisfactory performance of:
(1) The statutorily recognized duties and
responsibilities of the registered nurses as provided under
the laws of this Commonwealth.
(2) The standards required under this chapter that are
specific to each hospital unit.
"Critical access hospital." A health facility designated
under a Medicare rural hospital flexibility program established
by the Commonwealth and as defined in section 1861(mm) of the
Social Security Act (49 Stat. 620, 42 U.S.C. ยง 1395x(mm)).
"Critical care unit" or "intensive care unit." A nursing
unit of an acute care hospital that is established to safeguard
and protect patients whose severity of medical conditions
require continuous monitoring and complex interventions by
direct care registered nurses and whose restorative measures
require complex monitoring, intensive intricate assessment,
evaluation, specialized rapid intervention and the education and
teaching of the patient, the patient's family or other
representatives by a competent and experienced direct care
registered nurse. The term includes an intensive care unit, a
burn center, a coronary care unit or an acute respiratory unit.
"Direct care registered nurse" or "direct care professional
nurse." A registered nurse who:
(1) Is currently licensed by the State Board of Nursing
to engage in professional nursing with documented clinical
competence as defined in the act of May 22, 1951 (P.L.317,
No.69), known as The Professional Nursing Law.
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(2) Has accepted a direct, hands-on patient care
assignment to implement medical and nursing regimens and
provide related clinical supervision of patient care while
exercising independent professional judgment at all times in
the interests of a patient.
"Hospital." An entity located in this Commonwealth that is
licensed as a hospital under this act. The term includes a
critical access and long-term acute care hospital.
"Hospital unit" or "clinical patient care area." An
intensive care or critical care unit, a burn unit, a labor and
delivery room, antepartum and postpartum, a newborn nursery, a
postanesthesia service area, an emergency department, an
operating room, a pediatric unit, a step-down or intermediate
care unit, a specialty care unit, a telemetry unit, a general
medical/surgical care unit, a psychiatric unit, a rehabilitation
unit or a skilled nursing facility unit.
"Long-term acute care hospital." A hospital or health care
facility that specializes in providing acute care to medically
complex patients with an anticipated length of stay of more than
25 days. The term includes a free-standing and a hospital-
within-hospital model of a long-term acute care facility.
"Medical/surgical unit." A unit that:
(1) Is established to safeguard and protect patients
whose severity of illness, including all comorbidities,
restorative measures and level of nursing intensity requires
continuous care through direct observation by a direct care
registered nurse, monitoring, multiple assessments,
specialized interventions, evaluations and the education or
teaching of a patient's family or other representatives by a
competent and experienced direct care registered nurse.
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(2) May include patients requiring less than intensive
care or step-down care and patients receiving 24-hour
inpatient general medical care, postsurgical care or both.
(3) May include mixed patient populations of diverse
diagnoses and diverse age groups, excluding pediatric
patients.
"Patient assessment." The direct care utilization by a
registered nurse of critical thinking, which is the
intellectually disciplined process of actively and skillfully
interpreting, applying, analyzing, synthesizing and evaluating
data obtained through the registered nurse's direct care, direct
observation and communication with others.
"Professional judgment." The educated, informed and
experienced process that a direct care registered nurse
exercises in forming an opinion and reaching a clinical
decision, in a patient's best interest, based upon analysis of
data, information and scientific evidence.
"Rehabilitation unit." A functional clinical unit for the
provision of those rehabilitation services that restore an ill
or injured patient to the highest level of self-sufficiency or
gainful employment of which the patient is capable in the
shortest possible time, compatible with the patient's physical,
intellectual and emotional or psychological capabilities and in
accordance with planned goals and objectives.
"Skilled nursing facility." A functional clinical unit that:
(1) Provides skilled nursing care and supportive care to
patients whose primary need is for the availability of
skilled nursing care on a long-term basis and who are
admitted after at least a 48-hour period of continuous
inpatient care.
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(2) Provides at least the following:
(i) Medical.
(ii) Nursing.
(iii) Dietary.
(iv) Pharmaceutical services.
(v) An activity program.
"Specialty care unit." A unit that:
(1) Is established to safeguard and protect patients
whose severity of illness, including all comorbidities,
restorative measures and level of nursing intensity requires
continuous care through direct observation by a direct care
registered nurse, monitoring, multiple assessments,
specialized interventions, evaluations and the education and
teaching of a patient's family or other representatives by a
competent and experienced direct care registered nurse.
(2) Provides intensity of care for a specific medical
condition or a specific patient population.
(3) Is more comprehensive for the specific condition or
disease process than that which is required on a
medical/surgical unit and is not otherwise covered by the
definitions in this section.
"Step-down unit." A unit established:
(1) To safeguard and protect patients whose severity of
illness, including all comorbidities, restorative measures
and level of nursing intensity requires intermediate
intensive care through direct observation by the direct care
registered nurse, monitoring, multiple assessments,
specialized interventions, evaluations and the education and
teaching of the patient's family or other representatives by
a competent and experienced direct care registered nurse.
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(2) To provide care to patients with moderate or
potentially severe physiologic instability requiring
technical support but not necessarily artificial life
support.
"Technical support." Specialized equipment and direct care
registered nurses providing for invasive monitoring, telemetry
and mechanical ventilation for the immediate amelioration or
remediation of severe pathology for those patients requiring
less care than intensive care, but more care than that which is
required from medical/surgical care.
"Telemetry unit." A unit that:
(1) Is established to safeguard and protect patients
whose severity of illness, including all comorbidities,
restorative measures and level of nursing intensity requires
intermediate intensive care through direct observation by a
direct care registered nurse, monitoring, multiple
assessments, specialized interventions, evaluations and the
education and teaching of a patient's family or other
representatives by a competent and experienced direct care
registered nurse.
(2) Is designated for the electronic monitoring,
recording, retrieval and display of cardiac electrical
signals.
Section 834-A. Hospital nursing practice standard.
(a) Professional obligation and right.--By virtue of their
professional license and ethical obligations, all registered
nurses have a duty and right to act and provide care in the
exclusive interests of a patient and to act as the patient's
advocate, as circumstances require, in accordance with the
provisions described in section 836-A.
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(b) Acceptance of patient care assignments.--
(1) A direct care registered nurse shall provide
competent, safe, therapeutic and effective nursing care to
assigned patients.
(2) As a condition of licensure, a hospital or other
health care facility shall adopt, disseminate to direct care
registered nurses and comply with a written policy that
details the circumstances under which a direct care
registered nurse may refuse a work assignment.
(3) A work assignment policy shall permit a direct care
registered nurse to refuse a patient assignment for which:
(i) The nurse does not have the necessary knowledge,
judgment, skills and ability to provide the required care
without compromising or jeopardizing the patient's
safety, the nurse's ability to meet foreseeable patient
needs or the nurse's license.
(ii) The assignment otherwise would violate
requirements under this chapter.
(4) A work assignment policy shall permit a direct care
registered nurse to assess an order initiated by a physician
or legally authorized health care professional before
implementation to determine if the order is:
(i) In the best interests of the patient.
(ii) Initiated by a person legally authorized to
issue the order.
(iii) In accordance with applicable law and
regulation governing nursing care.
(5) A work assignment policy shall contain procedures
for the following:
(i) Reasonable requirements for prior notice to the
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nurse's supervisor regarding the direct care registered
nurse's request and supporting reasons for being relieved
of the assignment, continued duty or implementation of an
order.
(ii) Where feasible, an opportunity for the
supervisor to review the specific conditions supporting
the direct care registered nurse's request and to decide
whether to:
(A) remedy the conditions;
(B) to relieve the direct care registered nurse
of the assignment or order; or
(C) deny the direct care registered nurse's
request to be relieved of the assignment, continued
duty or implementation of an order.
(iii) A process that permits the nurse to exercise
the right to refuse the assignment, continued on-duty
status or implementation of an order when the supervisor
denies the request to be relieved if:
(A) The supervisor rejects the request without
proposing a remedy or the proposed remedy would be
inadequate or untimely.
(B) The complaint and investigation process with
a regulatory agency would be untimely to address
concern.
(C) The employee, in good faith, believes that
the assignment or implementation of an order meets
conditions justifying refusal.
(iv) A direct care registered nurse who refuses an
assignment or implementation of an order under a work
assignment policy established under this section shall
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not be deemed, by reason thereof, to have engaged in
negligent or incompetent action, patient abandonment or
otherwise to have violated applicable nursing law.
Section 835-A. Professional duty and right of patient advocacy.
A registered nurse has the professional obligation, and
therefore the right, to act as a patient's advocate as
circumstances require by:
(1) initiating action to improve health care or to
change decisions or activities which in the professional
judgment of the direct care registered nurse are against the
interests or wishes of the patient; or
(2) giving the patient the opportunity to make informed
decisions about health care before health care is provided.
Section 836-A. Free speech.
(a) Prohibition against discharge or retaliation for
whistleblowing.--A hospital or other health care facility may
not discharge from duty or otherwise retaliate against a direct
care registered nurse or other health care professional
responsible for patient care who reports unsafe practices or
violations of policy, regulation, rule or law.
(b) Rights guaranteed as essential to effective patient
advocacy.--
(1) A direct care registered nurse or other health care
professional or worker responsible for patient care in a
hospital shall enjoy the right of free speech and shall be
protected in the exercise of that right as provided in this
section, both during working hours and during off-duty hours.
(2) The right of free speech protected by this section
is a necessary incident of the professional nurse duty of
patient advocacy and is essential to protecting the health
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and safety of hospital patients and of the people of this
Commonwealth.
(c) Protected speech.--
(1) The free speech protected by this section includes,
without limitation, any type of spoken, gestured, written,
printed or electronically communicated expression concerning
any matter related to or affecting competent, safe,
therapeutic and effective nursing care by direct care
registered nurses or other health care professionals and
workers at the hospital facility, at facilities within large
health delivery systems or corporate chains that include the
hospital, or more generally within the health care industry.
(2) The content of speech protected by this section
includes, without limitation, the facts and circumstances of
particular events, patient care practices, institutional
actions, policies or conditions that may facilitate or impede
competent, safe, therapeutic and effective nursing practice
and patient care, adverse patient outcomes or incidents,
sentinel and reportable events and arguments in support of or
against hospital policies or practices relating to the
delivery of nursing care.
(3) Protected speech under this section includes the
reporting, internally, externally or publicly, of actions,
conduct, events, practices or other matters that are believed
to constitute:
(i) a violation of Federal, State or local laws or
regulations;
(ii) a breach of applicable codes of professional
ethics, including the professional and ethical
obligations of direct care registered nurses;
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(iii) matters which, in the independent judgment of
the reporting direct care registered nurse, are
appropriate or required for disclosure in furtherance and
support of the nurse's exercise of patient advocacy
duties to improve health care or change decisions or
activities which, in the professional judgment of the
direct care registered nurse, are against the interests
or wishes of the patient or to ensure that the patient is
afforded a meaningful opportunity to make informed
decisions about health care before it is provided; or
(iv) matters as described in subparagraph (iii) made
in aid and support of the exercise of patient advocacy
duties of direct care registered nurse colleagues.
(d) Nondisclosure of confidential information.--Nothing in
this section shall be construed to authorize disclosure of
private and confidential patient information except where the
disclosure is:
(1) required by law;
(2) compelled by proper legal process;
(3) consented to by the patient; or
(4) provided in confidence to regulatory or
accreditation agencies or other government entities for
investigatory purposes or under formal or informal complaints
of unlawful or improper practices for purposes of achieving
corrective and remedial action.
(e) Duty of patient advocacy.--Engaging in free speech
activity as described under this section constitutes an exercise
of the direct care registered nurse's duty and right of patient
advocacy. The subject matter of free speech activity as
described in this section is presumed to be a matter of public
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concern, and the disclosures protected under this section are
presumed to be in the public interest.
Section 837-A. Protected rights.
(a) General rule.--A person shall have the right to:
(1) Oppose policies, practices or actions of a hospital
or other medical facility that are alleged to violate, breach
or fail to comply with any provision of this chapter.
(2) Cooperate, provide evidence, testify or otherwise
support or participate in any investigation or complaint
proceeding under sections 845-A and 846-A.
(b) Right to file complaint.--
(1) A patient of a hospital or other medical facility
aggrieved by the hospital's or facility's interference with
the full and free exercise of patient advocacy duties by a
direct care registered nurse shall have the right to make or
file a complaint, cooperate, provide evidence, testify or
otherwise support or participate in any investigation or
complaint proceeding under sections 845-A and 846-A.
(2) A direct care registered nurse of a hospital or
other medical facility aggrieved by the hospital's or
facility's interference with the full and free exercise of
patient advocacy duties shall have the right to make or file
a complaint, cooperate, provide evidence, testify or
otherwise support or participate in any investigation or
complaint proceeding under sections 845-A and 846-A.
Section 838-A. Interference with rights and duties of free
speech and patient advocacy prohibited.
No hospital or other medical facility or its agents may:
(1) interfere with, restrain, coerce, intimidate or deny
the exercise of or the attempt to exercise, by a person of a
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right provided or protected under this chapter; or
(2) discriminate or retaliate against a person for
opposing a policy, practice or action of the hospital or
other medical facility which is alleged to violate, breach or
fail to comply with any provisions of this chapter.
Section 839-A. No retaliation or discrimination for protected
actions.
No hospital or other medical facility may discriminate or
retaliate in any manner against a patient, employee or contract
employee of the hospital or other medical facility or any other
person because that person has:
(1) presented a grievance or complaint or has initiated
or cooperated in an investigation or proceeding of a
governmental entity, regulatory agency or private
accreditation body; or
(2) made a civil claim or demand or filed an action
relating to the care, services or conditions of the hospital
or of any affiliated or related facilities.
Section 840-A. Direct care registered nurse-to-patient staffing
ratios.
(a) General requirements.--A hospital shall provide minimum
staffing by direct care registered nurses in accordance with the
general requirements of this subsection and the clinical unit or
clinical patient care area direct care registered nurse-to-
patient ratios specified in subsection (b). Staffing for patient
care tasks not requiring a direct care registered nurse is not
included within these ratios and shall be determined under an
acuity-based patient classification system, this section and
section 841-A. The requirements are as follows:
(1) No hospital may assign a direct care registered
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nurse to a nursing unit or clinical area unless that hospital
and the direct care registered nurse determine that the
direct care registered nurse has demonstrated and validated
current competence in providing care in that area and has
also received orientation to that hospital's clinical area
sufficient to provide competent, safe, therapeutic and
effective care to patients in that area. The policies and
procedures of the hospital shall contain the hospital's
criteria for making this determination.
(2) (i) Direct care registered nurse-to-patient ratios
represent the maximum number of patients that shall be
assigned to one direct care registered nurse at all
times.
(ii) For purposes of this paragraph, "assigned"
means the direct care registered nurse has responsibility
for the provision of care to a particular patient within
the direct care registered nurse's validated competency.
(3) There shall be no averaging of the number of
patients and the total number of direct care registered
nurses on the unit during any one shift nor over any period
of time.
(4) Only direct care registered nurses providing direct
patient care shall be included in the ratios. Nurse
administrators, nurse supervisors, nurse managers, charge
nurses and case managers may not be included in the
calculation of the direct care registered nurse-to-patient
ratio. Only direct care registered nurses shall relieve other
direct care registered nurses during breaks, meals and other
routine, expected absences from the unit.
(5) Only direct care registered nurses shall be assigned
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to intensive care newborn nursery service units, which
specifically require one direct care registered nurse to two
or fewer infants at all times.
(6) In the emergency department, only direct care
registered nurses shall be assigned to triage patients, and
only direct care registered nurses shall be assigned to
critical trauma patients.
(b) Unit or patient care areas.--The minimum staffing ratios
for general, acute, critical access and specialty hospitals are
established in this subsection for direct care registered nurses
as follows:
(1) The direct care registered nurse-to-patient ratio in
an intensive care unit shall be 1:2 or fewer at all times.
(2) The direct care registered nurse-to-patient ratio
for a critical care unit shall be 1:2 or fewer at all times.
(3) The direct care registered nurse-to-patient ratio
for a neonatal intensive care unit shall be 1:2 or fewer at
all times.
(4) The direct care registered nurse-to-patient ratio
for a burn unit shall be 1:2 or fewer at all times.
(5) The direct care registered nurse-to-patient ratio
for a step-down, intermediate care unit shall be 1:3 or fewer
at all times.
(6) An operating room shall have at least one direct
care registered nurse assigned to the duties of the
circulating registered nurse and a minimum of one additional
person as a scrub assistant for each patient-occupied
operating room.
(7) The direct care registered nurse-to-patient ratio in
the postanesthesia recovery unit of an anesthesia service
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shall be 1:2 or fewer at all times, regardless of the type of
anesthesia the patient received.
(8) The direct care registered nurse-to-patient ratio
for patients receiving conscious sedation shall be 1:1 at all
times.
(9) (i) The direct care registered nurse-to-patient
ratio for an emergency department shall be 1:4 or fewer
at all times.
(ii) The direct care registered nurse-to-patient
ratio for critical care patients in the emergency
department shall be 1:2 or fewer at all times.
(iii) Only direct care registered nurses shall be
assigned to critical trauma patients in the emergency
department, and a minimum direct care registered nurse-
to-critical trauma patient ratio of 1:1 shall be
maintained at all times.
(iv) In an emergency department, triage, radio or
specialty/flight, registered nurses do not count in the
calculation of direct care registered nurse-to-patient
ratio.
(10) (i) The direct care registered nurse-to-patient
ratio in the labor and delivery suite of prenatal
services shall be 1:1 at all times for active labor
patients and patients with medical or obstetrical
complications.
(ii) The direct care registered nurse-to-patient
ratio shall be 1:1 at all times for initiating epidural
anesthesia and circulation for cesarean delivery.
(iii) The direct care registered nurse-to-patient
ratio for patients in immediate postpartum shall be 1:2
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or fewer at all times.
(11) (i) The direct care registered nurse-to-patient
ratio for antepartum patients who are not in active labor
shall be 1:3 or fewer at all times.
(ii) The direct care registered nurse-to-patient
ratio for patients in a postpartum area of the prenatal
service shall be 1:3 mother-baby couplets or fewer at all
times.
(iii) In the event of cesarean delivery, the total
number of mothers plus infants assigned to a single
direct care registered nurse shall never exceed four.
(iv) In the event of multiple births, the total
number of mothers plus infants assigned to a single
direct care registered nurse shall not exceed six.
(v) For postpartum areas in which the direct care
registered nurse's assignment consists of mothers only,
the direct care registered nurse-to-patient ratio shall
be 1:4 or fewer at all times.
(vi) The direct care registered nurse-to-patient
ratio for postpartum women or postsurgical gynecological
patients shall be 1:4 or fewer at all times.
(vii) Well baby nursery direct care registered
nurse-to-patient ratio shall be 1:5 or fewer at all
times.
(viii) The direct care registered nurse-to-patient
ratio for unstable newborns and those in the
resuscitation period as assessed by the direct care
registered nurse shall be 1:1 at all times.
(ix) The direct care registered nurse-to-patient
ratio for recently born infants shall be 1:4 or fewer at
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all times.
(12) The direct care registered nurse-to-patient ratio
for pediatrics shall be 1:3 or fewer at all times.
(13) The direct care registered nurse-to-patient ratio
in telemetry shall be 1:3 or fewer at all times.
(14) (i) The direct care registered nurse-to-patient
ratio in medical/surgical shall be 1:4 or fewer at all
times.
(ii) The direct care registered nurse-to-patient
ratios for presurgical and admissions units or ambulatory
surgical units shall be 1:4 or fewer at all times.
(15) The direct care registered nurse-to-patient ratio
in other specialty units shall be 1:4 or fewer at all times.
(16) The direct care registered nurse-to-patient ratio
in psychiatric units shall be 1:4 or fewer at all times.
(17) The direct care registered nurse-to-patient ratio
in a rehabilitation unit or a skilled nursing facility shall
be 1:5 or fewer at all times.
(c) Additional conditions.--
(1) Identifying a unit or clinical patient care area by
a name or term other than those defined in section 833-A does
not affect the requirement to staff at the direct care
registered nurse-to-patient ratios identified for the level
of intensity or type of care described in section 833-A and
this section.
(2) (i) Patients shall only be cared for on units or
clinical patient care areas where the level of intensity,
type of care and direct care registered nurse-to-patients
ratios meet the individual requirements and needs of each
patient.
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(ii) The use of patient acuity-adjustable units or
clinical patient care areas is prohibited.
(3) Video cameras, monitors or any form of electronic
visualization of a patient shall not be deemed a substitute
for the direct observation required for patient assessment by
the direct care registered nurse and for patient protection
required by an attendant or sitter.
Section 841-A. Hospital unit staffing plans.
(a) Acuity-based patient classification system.--
(1) In addition to the direct care registered nurse
ratio requirements of subsection (b), a hospital shall assign
additional nursing staff, such as licensed practical nurses,
certified nursing assistants and ancillary staff, through the
implementation of a valid acuity-based patient classification
system for determining nursing care needs of individual
patients that reflects the assessment made by the assigned
direct care registered nurse of patient nursing care
requirements and provides for shift-by-shift staffing based
on those requirements.
(2) The ratios specified in subsection (b) shall
constitute the minimum number of registered nurses who shall
be assigned to direct patient care. Additional registered
nursing staff in excess of the prescribed ratios shall be
assigned to direct patient care in accordance with the
hospital's implementation of a valid system for determining
nursing care requirements.
(3) Based on the direct care registered nurse assessment
as reflected in the implementation of a valid system and
independent direct care registered nurse determination of
patient care needs, additional licensed and nonlicensed staff
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shall be assigned.
(b) Development of written staffing plan.--
(1) A written staffing plan shall be developed by the
chief nursing officer or a designee, based on individual
patient care needs determined by the system. The staffing
plan shall be developed and implemented for each patient care
unit and shall specify individual patient care requirements
and the staffing levels for direct care registered nurses and
other licensed and unlicensed personnel. The staffing plan
shall ensure that the facility implements the requirements
without diminishing the staffing levels of its ancillary
staff.
(2) In no case may the staffing level for direct care
registered nurses on any shifts fall below the requirements
of this subsection.
(3) The plan shall include the following:
(i) Staffing requirements as determined by the
system for each unit, documented and posted on the unit
for public view on a day-to-day, shift-by-shift basis.
(ii) The actual staff and staff mix provided,
documented and posted on the unit for public view on a
day-to-day, shift-by-shift basis.
(iii) The variance between required and actual
staffing patterns, documented and posted on the unit for
public view on a day-to-day, shift-by-shift basis.
(c) Recordkeeping.--In addition to the documentation
required in subsection (b), the hospital shall keep a record of
the actual direct care registered nurse, licensed practical
nurse and certified nursing assistant assignments to individual
patients by licensure category, documented on a day-to-day,
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shift-by-shift basis. The hospital shall retain:
(1) The staffing plan required in subsection (b) for a
period of two years.
(2) The record of the actual direct care registered
nurse, licensed practical nurse and certified nursing
assistant assignments by licensure and nonlicensure category.
(d) Review committee to conduct annual review of system.--
The reliability of the system for validating staffing
requirements shall be reviewed at least annually by a committee
to determine whether the system accurately measures individual
patient care needs and completely predicts direct care
registered nurse, licensed practical nurse and certified nursing
assistant staffing requirements based exclusively on individual
patient needs.
(e) Review committee membership.--
(1) At least half of the members of the review committee
shall be unit-specific, competent direct care registered
nurses who provide direct patient care.
(2) The members of the committee shall be appointed by
the chief nurse officer, except where direct care registered
nurses are represented for collective bargaining purposes,
all direct care registered nurses on the committee shall be
appointed by the authorized collective bargaining agent.
(3) In case of a dispute, the direct care registered
nurse assessment shall prevail.
(f) Time period for adjustments.--If the review committee
determines that adjustments are necessary in order to assure
accuracy in measuring patient care needs, the adjustments shall
be implemented within 30 days of that determination.
(g) Process for staff input.--A hospital shall develop and
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document a process by which all interested staff may provide
input about the system's required revisions and the overall
staffing plan.
(h) Limitation on administrator of nursing services.--The
administrator of nursing services may not be designated to serve
as a charge nurse or to have direct patient care responsibility.
(i) Minimum requirement for each shift.--Each patient care
unit shall have at least one direct care registered nurse
assigned, present and responsible for the patient care in the
unit on each shift.
(j) Temporary nursing agencies.--
(1) Nursing personnel from temporary nursing agencies
may not be responsible for patient care on any clinical unit
without having demonstrated and validated clinical competency
on the assigned unit.
(2) A hospital that utilizes temporary nursing agencies
shall have and adhere to a written procedure to orient and
evaluate personnel from these sources. In order to ensure
clinical competence of temporary agency personnel, the
procedures shall require that personnel from temporary
nursing agencies be evaluated as often, or more often, than
staff employed directly by the hospital.
(k) Planning for routine fluctuations.--
(1) A hospital shall plan for routine fluctuations, such
as admissions, discharges and transfers in patient census.
(2) If a health care emergency causes a change in the
number of patients on a unit, the hospital shall demonstrate
immediate and diligent efforts were made to maintain required
staffing levels.
(3) For purposes of this subsection, "health care
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emergency" means an emergency declared by the Federal
Government or the head of a State, local, county or municipal
government.
Section 842-A. Minimum requirements for hospital systems.
(a) General rule.--A hospital shall:
(1) Adopt an acuity-based patient classification system,
including a written nursing care staffing plan for each
patient care unit.
(2) Implement, evaluate and modify the plan as necessary
and appropriate under the provisions of this section.
(3) Provide direct care registered nurse staffing based
on individual patient needs determined in accordance with the
requirements of this section.
(4) Use the system to determine additional direct care
registered nurse staffing above the minimum staffing ratios
required by subsection (b) and any staffing by licensed
practical nurses or unlicensed nursing personnel.
(b) Required elements.--The system used by a hospital for
determining patient nursing care needs shall include, but not be
limited to, the following elements:
(1) A method to predict nursing care requirements of
individual patient assessments and as determined by direct
care registered nurse assessments of individual patients.
(2) A method that provides for sufficient direct care
registered nursing staffing to ensure that all of the
elements in this subsection are performed in the planning and
delivery of care for each patient:
(i) Assessment.
(ii) Nursing diagnosis.
(iii) Planning.
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(iv) Intervention.
(3) An established method by which the amount of nursing
care needed for each category of patient is validated.
(4) A method for validation of the reliability of the
system.
(c) Transparency of system.--
(1) A system shall be fully transparent in all respects,
including:
(i) Disclosure of detailed documentation of the
methodology used by the system to predict nursing
staffing.
(ii) Identification of each factor, assumption and
value used in applying the methodology.
(iii) An explanation of the scientific and empirical
basis for each assumption and value and certification by
a knowledgeable and authorized representative of the
hospital that the disclosures regarding methods used for
testing and validating the accuracy and reliability of
the system are true and complete.
(2) A hospital shall include in the documentation
required by this section an evaluation and a report on at
least an annual basis, which evaluation and report shall be
conducted and prepared by a committee consisting exclusively
of direct care registered nurses who have provided direct
patient care in the units covered by the system. Where direct
care registered nurses are represented for collective
bargaining purposes, all direct care registered nurses on the
committee shall be appointed by the authorized collective
bargaining agent.
(d) Submission to Department of Health.--
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(1) The documentation required by this section shall be
submitted in its entirety to the Department of Health as a
mandatory condition of hospital licensure, with a
certification by the chief nurse officer for the hospital
that the documentation completely and accurately reflects
implementation of a valid system used to determine nursing
service staffing by the hospital for every shift on every
clinical unit in which patients reside and receive care.
(2) The certification shall be executed by the chief
nurse officer under penalty of perjury and shall contain an
express acknowledgment that any false statement in the
certification shall constitute fraud and be subject to
criminal and civil prosecution and penalties under the
antifraud provisions applicable to false claims for
government funds or benefits.
(3) The documentation shall be available for public
inspection in its entirety in accordance with procedures
established by appropriate administrative regulation
consistent with the purposes of this chapter.
Section 843-A. Prohibited activities.
(a) General rule.--The following activities are prohibited:
(1) A hospital may not directly assign any unlicensed
personnel to perform registered nurse functions in lieu of
care delivered by a licensed registered nurse and may not
assign unlicensed personnel to perform registered nurse
functions under the clinical supervision of a direct care
registered nurse.
(2) Unlicensed personnel may not perform tasks that
require the clinical assessment, judgment and skill of a
licensed registered nurse, including, without limitation:
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(i) Nursing activities that require nursing
assessment and judgment during implementation.
(ii) Physical, psychological and social assessments
that require nursing judgment, intervention, referral or
follow-up.
(iii) Formulation of a plan of nursing care and
evaluation of the patient's response to the care
provided.
(iv) Administration of medication, venipuncture or
intravenous therapy, parenteral or tube feedings,
invasive procedures, including inserting nasogastric
tubes, inserting catheters or tracheal suctioning.
(v) Educating patients and their families concerning
the patient's health care problems, including
postdischarge care.
(b) Mandatory overtime.--A hospital may not impose mandatory
overtime requirements to meet the staffing ratios imposed in
section 840-A.
Section 844-A. Fines and civil penalties.
The following fines and penalties shall apply to violations
of this chapter:
(1) A hospital found to have violated or aided and
abetted section 841-A, 842-A or 843-A shall be subject, in
addition to any other penalties that may be prescribed by
law, to a civil penalty of not more than $25,000 for each
violation and an additional $10,000 per nursing unit shift
until the violation is corrected.
(2) A hospital employer found to have violated or
interfered with any of the rights or protections provided and
guaranteed under sections 836-A, 837-A, 838-A, 839-A and
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840-A shall be subject to a civil penalty of not more than
$25,000 for each violation or occurrence of prohibited
conduct.
(3) A hospital management, nursing service or medical
personnel found to have violated or interfered with any of
the rights or protections provided and guaranteed under
sections 836-A, 837-A, 838-A, 839-A and 840-A shall be
subject to a civil penalty of not more than $20,000 for each
violation or occurrence of prohibited conduct.
Section 845-A. Private right of action.
(a) General rule.--A hospital or other health care facility
that violates the rights of an employee specified in sections
835-A, 836-A, 837-A, 838-A and 839-A may be held liable to the
employee in an action brought in a court of competent
jurisdiction for such legal or equitable relief as may be
appropriate to effectuate the purposes of this chapter,
including, but not limited to, reinstatement, promotion, lost
wages and benefits and compensatory and consequential damages
resulting from the violations together with an equal amount in
liquidated damages. The court in the action shall, in addition
to any judgment awarded to the plaintiffs, award reasonable
attorney fees and costs of action to be paid by the defendants.
The employee's right to institute a private action is not
limited by any other rights granted under this chapter.
(b) Relief for nurses.--In addition to the amount recovered
under subsection (a), a nurse whose employment is suspended or
terminated in violation of this section is entitled to:
(1) Reinstatement in the nurse's former position or
severance pay in an amount equal to three months of the
nurse's most recent salary.
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(2) Compensation for wages lost during the period of
suspension or termination.
(3) An award of reasonable attorney fees and costs as
the prevailing party.
Section 846-A. Enforcement procedure.
(a) Period of limitations.--
(1) Except as otherwise provided in paragraph (2), in
the case of an action brought for a willful violation of the
applicable provisions of this chapter, the action must be
brought within three years of the date of the last event
constituting the alleged violation for which the action is
brought.
(2) An action must be brought under section 845-A no
later than two years after the date of the last event
constituting the alleged violation for which the action is
brought.
(b) Posting requirements.--A hospital and other medical
facility shall post the provisions of this chapter in a
prominent place for review by the public and the employees. The
posting shall have a title across the top in no less than 35
point, bold typeface stating the following:
"RIGHTS OF REGISTERED NURSES AS PATIENT ADVOCATES, EMPLOYEES
AND PATIENTS."
Section 2. This act shall take effect in 60 days.
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