II 

109TH CONGRESS 

1ST SESSION S. 351 

To amend title XVIII of the Social Security Act to provide for patient 

protection by limiting the number of mandatory overtime hours a nurse 

may be required to work in certain providers of services to which payments are made under the Medicare Program. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 10, 2005 

Mr. KENNEDY (for himself, Mr. KERRY, Mr. AKAKA, Mrs. BOXER, Mrs. CLINTON, Mr. CORZINE, Mr. DODD, Mr. FEINGOLD, Mr. INOUYE, Mr. LAUTENBERG, Mr. LEVIN, Mr. LIEBERMAN, Ms. MIKULSKI, Mr. SARBANES, 

and Mr. REED) introduced the following bill; which was read twice and 

referred to the Committee on Finance 

A BILL

To amend title XVIII of the Social Security Act to provide 

for patient protection by limiting the number of mandatory overtime hours a nurse may be required to work 

in certain providers of services to which payments are 

made under the Medicare Program.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Safe Nursing and Pa5 tient Care Act of 2005’’. 
2

•S 351 IS

1 SEC. 2. FINDINGS. 

2 The Congress finds as follows: 

3 (1) The Federal Government has a substantial 

4 interest in assuring that the delivery of health care 

5 services to patients in health care facilities is ade6 quate and safe. 

7 (2) Research, including a study published in the 

8 Journal of the American Medical Association (in the 

9 October 23–30, 2002 issue), documents that higher 

10 nurse staffing levels result in better patient out11 comes. However, health care facilities report sub12 stantial difficulties in recruiting and retaining suffi13 cient nursing staff, as evidenced by the fact that ap14 proximately 500,000 licensed nurses are not prac15 ticing nursing. 

16 (3) Job dissatisfaction and overtime work are 

17 contributing to the departure of nurses from their 

18 profession, as documented by the Government Ac19 countability Office in a July 2001 report. Yet, health 

20 care providers continue to make use of mandatory 

21 overtime as a staffing model. 

22 (4) The widespread practice of requiring nurses 

23 to work extended shifts and forgo days off frequently 

24 causes nurses to provide care in a state of fatigue 

25 which contributes to medical errors and results in 

26 other consequences that compromise patient safety. 
3

•S 351 IS

1 (5) The dangers with mandatory overtime are 

2 made clear by numerous studies. A November 2003 

3 Institute of Medicine report, Keeping Patients Safe: 

4 Transforming the Work Environment of Nurses, 

5 concluded that limiting the number of hours worked 

6 per day and consecutive days of work by nursing 

7 staff, as is done in other safety-sensitive industries, 

8 is a fundamental safety precaution. The report went 

9 on to specifically recommend that working more 

10 than 12 hours in any 24-hour period and more than 

11 60 hours in any 7-day period be prevented except in 

12 case of an emergency, such as a natural disaster. 

13 (6) Another study published in the July/August 

14 2004 Health Affairs Journal, The Working Hours of 

15 Hospital Staff Nurses and Patient Safety, found 

16 that nurses who worked shifts of twelve and a half 

17 hours or more were three times more likely to com18 mit an error than nurses who worked standard shifts 

19 of eight and a half hours or less. The study also 

20 found that working overtime increased the odds of 

21 making at least one error, regardless of how long the 

22 shift was originally scheduled. 

23 (7) That same study also illustrates how nurses 

24 are being forced to work more and more overtime. 

25 The majority of nurses surveyed reported working 
4

•S 351 IS

1 overtime ten or more times in a twenty-eight day pe2 riod and one-sixth reported working sixteen or more 

3 consecutive hours at least once during the period. 

4 Nurses reported being mandated to work overtime 

5 on 360 shifts and on another 143 shifts they de6 scribed being ‘‘coerced’’ into working voluntary over7 time. 

8 (8) While no Federal standards currently re9 strict mandatory nurse overtime, many States are 

10 considering such laws and several States, including 

11 California, Connecticut, Maine, Maryland, Min12 nesota, New Jersey, Oregon, Washington, and West 

13 Virginia, have enacted laws or prescribed regula14 tions. 

15 (9) Federal limitations on mandatory nurse 

16 overtime will ensure that health care facilities 

17 throughout the country operate in a manner that 

18 safeguards public safety by helping assure the deliv19 ery of quality nursing care and facilitating the reten20 tion and recruitment of nurses. 

21 SEC. 3. LIMITATIONS ON MANDATORY OVERTIME FOR 

22 NURSES. 

23 (a) PROVIDER AGREEMENTS.—Section 1866 of the 

24 Social Security Act (42 U.S.C. 1395cc) is amended— 

25 (1) in subsection (a)(1)— 
5

•S 351 IS

1 (A) in subparagraph (U), by striking 

2 ‘‘and’’ at the end; 

3 (B) in subparagraph (V), by striking the 

4 period and inserting ‘‘, and’’; and 

5 (C) by inserting after subparagraph (V), 

6 the following: 

7 ‘‘(W) to comply with the requirements of 

8 subsection (k) (relating to limitations on man9 datory overtime for nurses).’’; and 

10 (2) by adding at the end the following new sub11 section: 

12 ‘‘(k) LIMITATIONS ON MANDATORY OVERTIME FOR

13 NURSES.—For purposes of subsection (a)(1)(W), the re14 quirements of this subsection are the following: 

15 ‘‘(1) PROHIBITION ON MANDATORY OVER16 TIME.—Except as provided in this subsection, a pro17 vider of services shall not, directly or indirectly, re18 quire a nurse to work in excess of any of the fol19 lowing: 

20 ‘‘(A) The scheduled work shift or duty pe21 riod of the nurse. 

22 ‘‘(B) 12 hours in a 24-hour period. 

23 ‘‘(C) 80 hours in a consecutive 14-day pe24 riod. 

25 ‘‘(2) EXCEPTIONS.— 
6

•S 351 IS

1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), the requirements of paragraph (1) 

3 shall not apply to a provider of services during 

4 a declared state of emergency if the provider is 

5 requested, or otherwise is expected, to provide 

6 an exceptional level of emergency or other med7 ical services to the community. 

8 ‘‘(B) LIMITATIONS.—With respect to a 

9 provider of services to which subparagraph (A) 

10 applies, a nurse may only be required to work 

11 for periods in excess of the periods described in 

12 paragraph (1) if— 

13 ‘‘(i) the provider has made reasonable 

14 efforts to fill the immediate staffing needs 

15 of the provider through alternative means; 

16 and 

17 ‘‘(ii) the duration of the work require18 ment does not extend past the earlier of— 

19 ‘‘(I) the date on which the de20 clared state of emergency ends; or 

21 ‘‘(II) the date on which the pro22 vider’s direct role in responding to the 

23 medical needs resulting from the de24 clared state of emergency ends. 

25 ‘‘(3) REPORT OF VIOLATIONS.— 
7

•S 351 IS

1 ‘‘(A) RIGHT TO REPORT.— 

2 ‘‘(i) IN GENERAL.—A nurse may file a 

3 complaint with the Secretary against a 

4 provider of services who violates the provi5 sions of this subsection. 

6 ‘‘(ii) PROCEDURE.—The Secretary 

7 shall establish a procedure under which a 

8 nurse may file a complaint under clause 

9 (i). 

10 ‘‘(B) INVESTIGATION OF COMPLAINT.—

11 The Secretary shall investigate complaints of 

12 violations filed by a nurse under subparagraph 

13 (A). 

14 ‘‘(C) ACTIONS.—If the Secretary deter15 mines that a provider of services has violated 

16 the provisions of this subsection, the Secretary 

17 shall require the provider to establish a plan of 

18 action to eliminate the occurrence of such viola19 tion, and may seek civil money penalties under 

20 paragraph (7). 

21 ‘‘(4) NURSE NONDISCRIMINATION PROTEC22 TIONS.— 

23 ‘‘(A) IN GENERAL.—A provider of services 

24 shall not penalize, discriminate, or retaliate in 

25 any manner with respect to any aspect of em-
8

•S 351 IS

1 ployment, including discharge, promotion, com2 pensation, or terms, conditions, or privileges of 

3 employment, against a nurse who refuses to 

4 work mandatory overtime or who in good faith, 

5 individually or in conjunction with another per6 son or persons— 

7 ‘‘(i) reports a violation or suspected 

8 violation of this subsection to a public reg9 ulatory agency, a private accreditation 

10 body, or the management personnel of the 

11 provider of services; 

12 ‘‘(ii) initiates, cooperates, or otherwise 

13 participates in an investigation or pro14 ceeding brought by a regulatory agency or 

15 private accreditation body concerning mat16 ters covered by this subsection; or 

17 ‘‘(iii) informs or discusses with other 

18 employees, with representatives of those 

19 employees, or with representatives of asso20 ciations of health care professionals, viola21 tions or suspected violations of this sub22 section. 

23 ‘‘(B) RETALIATORY REPORTING.—A pro24 vider of services may not file a complaint or a 

25 report against a nurse with the appropriate 
9

•S 351 IS

1 State professional disciplinary agency because 

2 the nurse refused to comply with a request to 

3 work mandatory overtime. 

4 ‘‘(C) GOOD FAITH.—For purposes of this 

5 paragraph, a nurse is deemed to be acting in 

6 good faith if the nurse reasonably believes— 

7 ‘‘(i) that the information reported or 

8 disclosed is true; and 

9 ‘‘(ii) that a violation has occurred or 

10 may occur. 

11 ‘‘(5) NOTICE.— 

12 ‘‘(A) REQUIREMENT TO POST NOTICE.—

13 Each provider of services shall post conspicu14 ously in an appropriate location a sign (in a 

15 form specified by the Secretary) specifying 

16 rights of nurses under this section. 

17 ‘‘(B) RIGHT TO FILE COMPLAINT.—Such 

18 sign shall include a statement that a nurse may 

19 file a complaint with the Secretary against a 

20 provider of services who violates the provisions 

21 of this subsection and information with respect 

22 to the manner of filing such a complaint. 

23 ‘‘(6) POSTING OF NURSE SCHEDULES.—A pro24 vider of services shall regularly post in a conspicuous 

25 manner the nurse schedules (for such periods of 
10

•S 351 IS

1 time that the Secretary determines appropriate by 

2 type or class of provider of services) for the depart3 ment or unit involved, and shall make available upon 

4 request to nurses assigned to the department or unit 

5 the daily nurse schedule for such department or 

6 unit. 

7 ‘‘(7) CIVIL MONEY PENALTY.— 

8 ‘‘(A) IN GENERAL.—The Secretary may 

9 impose a civil money penalty of not more than 

10 $10,000 for each knowing violation of the provi11 sions of this subsection committed by a provider 

12 of services. 

13 ‘‘(B) PATTERNS OF VIOLATIONS.—Not14 withstanding subparagraph (A), the Secretary 

15 shall provide for the imposition of more severe 

16 civil money penalties under this paragraph for 

17 providers of services that establish patterns of 

18 repeated violations of such provisions. 

19 ‘‘(C) ADMINISTRATION OF PENALTIES.—

20 The provisions of section 1128A (other than 

21 subsections (a) and (b)) shall apply to a civil 

22 money penalty under this paragraph in the 

23 same manner as such provisions apply to a pen24 alty or proceeding under section 1128A(a). 
11

•S 351 IS

1 The Secretary shall publish on the Internet site of 

2 the Department of Health and Human Services the 

3 names of providers of services against which civil 

4 money penalties have been imposed under this para5 graph, the violation for which the penalty was im6 posed, and such additional information as the Sec7 retary determines appropriate. With respect to a 

8 provider of services that has had a change in owner9 ship, as determined by the Secretary, penalties im10 posed on the provider of services while under pre11 vious ownership shall no longer be published by the 

12 Secretary on such Internet site after the 1-year pe13 riod beginning on the date of change in ownership. 

14 ‘‘(8) RULE OF CONSTRUCTION.—Nothing in 

15 this subsection shall be construed as precluding a 

16 nurse from voluntarily working more than any of the 

17 periods of time described in paragraph (1), so long 

18 as such work is done consistent with professional 

19 standards of safe patient care. 

20 ‘‘(9) DEFINITIONS.—In this subsection: 

21 ‘‘(A) MANDATORY OVERTIME.—The term 

22 ‘mandatory overtime’ means hours worked in 

23 excess of the periods of time described in para24 graph (1), except as provided in paragraph (2), 

25 pursuant to any request made by a provider of 
12

•S 351 IS

1 services to a nurse which, if refused or declined 

2 by the nurse involved, may result in an adverse 

3 employment consequence to the nurse, including 

4 discharge, discipline, loss of promotion, or retal5 iatory reporting of the nurse to the State pro6 fessional disciplinary agency involved. 

7 ‘‘(B) OVERTIME.—The term ‘overtime’ 

8 means time worked in excess of the periods of 

9 time described in paragraph (1). 

10 ‘‘(C) NURSE.—The term ‘nurse’ means a 

11 registered nurse or a licensed practical nurse. 

12 ‘‘(D) PROVIDER OF SERVICES.—The term 

13 ‘provider of services’ means— 

14 ‘‘(i) a hospital (as defined in section 

15 1861(e)); 

16 ‘‘(ii) a psychiatric hospital (as defined 

17 in section 1861(f)); 

18 ‘‘(iii) a hospital outpatient depart19 ment; 

20 ‘‘(iv) a critical access hospital; 

21 ‘‘(v) an ambulatory surgical center; 

22 ‘‘(vi) a home health agency; 

23 ‘‘(vii) a rehabilitation agency; 

24 ‘‘(viii) a clinic, including a rural 

25 health clinic; or 
13

•S 351 IS

1 ‘‘(ix) a federally qualified health cen2 ter. 

3 ‘‘(E) DECLARED STATE OF EMERGENCY.—

4 The term ‘declared state of emergency’ means 

5 an officially designated state of emergency that 

6 has been declared by the Federal Government 

7 or the head of the appropriate State or local 

8 governmental agency having authority to de9 clare that the State, county, municipality, or lo10 cality is in a state of emergency, but does not 

11 include a state of emergency that results from 

12 a labor dispute in the health care industry or 

13 consistent understaffing. 

14 ‘‘(F) STANDARDS OF SAFE PATIENT

15 CARE.—The term ‘standards of safe patient 

16 care’ means the recognized professional stand17 ards governing the profession of the nurse in18 volved.’’. 

19 (b) EFFECTIVE DATE.—The amendments made by 

20 this section shall take effect 1 year after the date of enact21 ment of this Act. 

22 SEC. 4. REPORTS. 

23 (a) STANDARDS ON SAFE WORKING HOURS FOR

24 NURSES.— 
14

•S 351 IS

1 (1) STUDY.—The Secretary of Health and 

2 Human Services, acting through the Director of the 

3 Agency for Healthcare Research and Quality, shall 

4 conduct a study to establish appropriate standards 

5 for the maximum number of hours that a nurse, who 

6 furnishes health care to patients, may work without 

7 compromising the safety of such patients. Such 

8 standards may vary by provider of service and by de9 partment within a provider of services, by duties or 

10 functions carried out by nurses, by shift, and by 

11 other factors that the Director determines appro12 priate. The Director may contract with an eligible 

13 entity or organization to carry out the study under 

14 this paragraph. 

15 (2) REPORT.—Not later than 2 years after the 

16 date of the enactment of this Act, the Secretary 

17 shall submit to Congress a report on the study con18 ducted under paragraph (1) and shall include rec19 ommendations for such appropriate standards of 

20 maximum work hours. 

21 (b) REPORT ON MANDATORY OVERTIME IN FEDER22 ALLY OPERATED MEDICAL FACILITIES.— 

23 (1) STUDY.— 

24 (A) IN GENERAL.—The Director of the Of25 fice of Management and Budget shall conduct 
15

•S 351 IS

1 a study to determine the extent to which feder2 ally operated medical facilities have in effect 

3 practices and policies with respect to overtime 

4 requirements for nurses that are inconsistent 

5 with the provisions of section 1866(k) of the 

6 Social Security Act, as added by section 3. 

7 (B) FEDERALLY OPERATED MEDICAL FA8 CILITIES DEFINED.—In this subsection, the 

9 term ‘‘federally operated medical facilities’’ 

10 means acute care hospitals, freestanding clinics, 

11 and home health care clinics that are operated 

12 by the Department of Veterans Affairs, the De13 partment of Defense, or any other department 

14 or agency of the United States. 

15 (2) REPORT.—Not later than 6 months after 

16 the date of the enactment of this Act, the Director 

17 of the Office of Management and Budget shall sub18 mit to Congress a report on the study conducted 

19 under paragraph (1) and shall include recommenda20 tions for the implementation of policies within feder21 ally operated medical facilities with respect to over22 time requirements for nurses that are consistent 

23 with such section 1866(k), as so added.

Æ