II 

116TH CONGRESS 

2D SESSION S. 4541 

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 

SEPTEMBER 8, 2020 

Mr. MERKLEY 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 ‘‘Nurse Overtime and 

5 Patient Safety Act of 2020’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds as follows: 


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1 (1) The Federal Government has a substantial 

2 interest in assuring that the delivery of health care 

3 services to patients in health care facilities is ade4 quate and safe. 

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

6 Health Services Research in October 2014 and a 

7 2019 study from New York University, document 

8 the following: 

9 (A) Limits on work hours have long been 

10 found in high-risk occupational settings where 

11 long work hours can adversely affect safety and 

12 performance as well as job satisfaction and 

13 quality of life. 

14 (B) Regulations limiting work hours were 

15 first instituted in the 1930s. 

16 (C) Adoption of work hour regulations has 

17 been slower in the health care sector. 

18 (D) A review of the current literature indi19 cates that despite potential pitfalls of disconti20 nuity in care, regulated work hours for nurses 

21 improve occupational and patient safety. 

22 (E) The work year for registered nurses is 

23 substantially longer than the national average 

24 by 200 work hours. 


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1 (F) When nurses with more than one posi2 tion of employment are taken into account, 

3 total nurse work hours may be greater than the 

4 estimate above. 

5 (G) Furthermore, because nurses fre6 quently work under a 12-hour shift schedule, 

7 they not only work extended hours but also re8 turn to work often without sufficient time for 

9 rest. 

10 (H) Newly licensed nurses work an average 

11 of 39.4 hours a week, predominantly in 12-hour 

12 shifts. 

13 (I) More than 13 percent of newly licensed 

14 nurses report having a second paid job. 

15 (J) New nurses prefer working the day 

16 shift, and the preferred shift length is 12 hours. 

17 (K) Twelve percent of nurses report work18 ing mandatory overtime, and nearly half work 

19 voluntary overtime at an average of three hours 

20 in a workweek. 

21 (3) Nurses working long hours often experience 

22 fatigue, poor sleep quality, impaired vigilance, and 

23 lack of alertness, which contributes to medical errors 

24 and results in other consequences that compromise 


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1 patient safety, even after controlling for staffing lev2 els and hospital characteristics. 

3 (4) Eighteen States have passed legislation or 

4 promulgated regulations restricting mandatory over5 time for nurses. 

6 SEC. 3. LIMITATIONS ON MANDATORY OVERTIME FOR 

7 NURSES. 

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

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

10 (1) in subsection (a)(1)— 

11 (A) in subparagraph (X), by striking 

12 ‘‘and’’ at the end; 

13 (B) in subparagraph (Y), by striking the 

14 period and inserting ‘‘, and’’; and 

15 (C) by inserting after subparagraph (Y) 

16 the following new subparagraph: 

17 ‘‘(Z) to comply with the requirements of sub18 section (l) (relating to limitations on mandatory 

19 overtime for nurses).’’; and 

20 (2) by adding at the end the following new sub21 section: 

22 ‘‘(l) LIMITATIONS ON MANDATORY OVERTIME FOR

23 NURSES.—For purposes of subsection (a)(1)(Z), the re24 quirements of this subsection are the following: 


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1 ‘‘(1) PROHIBITION ON MANDATORY OVER2 TIME.— 

3 ‘‘(A) IN GENERAL.—Except as provided in 

4 this subsection, a provider of services shall not, 

5 directly or indirectly, require a nurse to work— 

6 ‘‘(i) in excess of— 

7 ‘‘(I) a previously scheduled work 

8 shift or duty period of the nurse, re9 gardless of the length of the shift; 

10 ‘‘(II) 48 hours in any workweek 

11 (as defined in section 778.105 of title 

12 29, Code of Federal Regulations, or 

13 any successor regulation); or 

14 ‘‘(III) 12 consecutive hours in a 

15 24-hour period; or 

16 ‘‘(ii) during the 10-hour period imme17 diately following the 12th hour worked in 

18 a shift or duty period during a 24-hour pe19 riod. 

20 ‘‘(B) HOURS WORKED.—For purposes of 

21 subparagraph (A), time spent by a nurse in the 

22 following shall be included as hours worked: 

23 ‘‘(i) Required meetings or while re24 ceiving education or training. 


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1 ‘‘(ii) On call or on standby when the 

2 nurse is required to be at the provider of 

3 services. 

4 ‘‘(iii) On call or on standby when the 

5 nurse is not required to be at the provider 

6 of services. 

7 ‘‘(C) CLARIFICATION REGARDING VOL8 UNTARY OVERTIME.—Nothing in this sub9 section shall be construed to preclude a nurse 

10 from volunteering to work overtime. 

11 ‘‘(2) EXCEPTIONS.— 

12 ‘‘(A) IN GENERAL.—Subject to subpara13 graph (B), the requirements of paragraph (1) 

14 shall not apply to a provider of services during 

15 a declared emergency or disaster (as defined in 

16 paragraph (9)(E)) if the provider is requested, 

17 or otherwise is expected, to provide an excep18 tional level of emergency or other medical serv19 ices to the community. 

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

21 provider of services to which subparagraph (A) 

22 applies, a nurse may only be required to work 

23 for periods in excess of the periods described in 

24 paragraph (1) if— 


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1 ‘‘(i) the provider has made reasonable 

2 efforts to fill the immediate staffing needs 

3 of the provider through alternative means; 

4 ‘‘(ii) the duration of the work require5 ment does not extend past the earlier of— 

6 ‘‘(I) the date on which the de7 clared emergency or disaster ends; or 

8 ‘‘(II) the date on which the pro9 vider’s direct role in responding to the 

10 medical needs resulting from the de11 clared emergency or disaster ends; 

12 ‘‘(iii) a staff vacancy for the next shift 

13 becomes known at the end of the current 

14 shift; and 

15 ‘‘(iv) there is potential harm to an as16 signed patient if the nursing staff member 

17 leaves the assignment or transfers care to 

18 another nursing staff member. 

19 ‘‘(3) WHISTLEBLOWER PROTECTIONS FOR

20 NURSES.— 

21 ‘‘(A) RIGHT TO REPORT.— 

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

23 complaint with the Secretary against a 

24 provider of services who violates the provi25 sions of this subsection. 


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1 ‘‘(ii) PROCEDURE.—The Secretary 

2 shall establish a procedure under which a 

3 nurse may file a complaint under clause 

4 (i). 

5 ‘‘(B) INVESTIGATION OF COMPLAINT.— 

6 The Secretary shall investigate complaints of 

7 violations filed by a nurse under subparagraph 

8 (A). 

9 ‘‘(C) ACTIONS.—If the Secretary deter10 mines that a provider of services has violated 

11 the provisions of this subsection, the Secretary 

12 shall require the provider to establish a plan of 

13 action to eliminate the occurrence of such viola14 tion, and may seek civil money penalties under 

15 paragraph (7). 

16 ‘‘(4) NURSE NONDISCRIMINATION PROTEC17 TIONS.— 

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

19 shall not terminate or propose to terminate, pe20 nalize, discriminate, or retaliate in any manner 

21 with respect to any aspect of employment, in22 cluding discharge, promotion, compensation, or 

23 terms, conditions, or privileges of employment, 

24 against a nurse who refuses to work mandatory 


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1 overtime or who in good faith, individually or in 

2 conjunction with another person or persons— 

3 ‘‘(i) reports a violation or suspected 

4 violation of this subsection to a public reg5 ulatory agency, a private accreditation 

6 body, or the management personnel of the 

7 provider of services; 

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

9 participates in an investigation or pro10 ceeding brought by a regulatory agency or 

11 private accreditation body concerning mat12 ters covered by this subsection; or 

13 ‘‘(iii) informs or discusses with other 

14 employees, with representatives of those 

15 employees, or with representatives of asso16 ciations of health care professionals, viola17 tions or suspected violations of this sub18 section. 

19 ‘‘(B) RETALIATORY REPORTING.—A pro20 vider of services may not file a complaint or a 

21 report against a nurse with the appropriate 

22 State professional disciplinary agency because 

23 the nurse refused to comply with a request to 

24 work mandatory overtime. 


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

2 paragraph, a nurse is deemed to be acting in 

3 good faith if the nurse reasonably believes— 

4 ‘‘(i) that the information reported or 

5 disclosed is true; and 

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

7 may occur. 

8 ‘‘(5) NOTICE POLICY AND REQUIREMENTS.— 

9 ‘‘(A) REQUIREMENT TO DEVELOP A POL10 ICY AND PROCEDURE.—Each provider of serv11 ices shall develop a policy and have in place 

12 procedures to ensure, at a minimum, that— 

13 ‘‘(i) mandatory overtime, when re14 quired as described in paragraph (2)(B), is 

15 documented in writing; and 

16 ‘‘(ii) mandatory overtime policies and 

17 procedures are clearly written, provided to 

18 all new nursing staff and readily available 

19 to all nursing staff. 

20 ‘‘(B) REQUIREMENT TO POST NOTICE.— 

21 Each provider of services shall post conspicu22 ously in an appropriate location a sign (in a 

23 form specified by the Secretary) specifying 

24 rights of nurses under this subsection. 


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1 ‘‘(C) RIGHT TO FILE COMPLAINT.—Such 

2 sign shall include a statement that a nurse may 

3 file a complaint with the Secretary against a 

4 provider of services who violates the provisions 

5 of this subsection and information with respect 

6 to the manner of filing such a complaint. 

7 ‘‘(6) POSTING OF NURSE SCHEDULES.—A pro8 vider of services shall regularly post in a conspicuous 

9 manner the nurse schedules (for such periods of 

10 time that the Secretary determines appropriate by 

11 type or class of provider of services) for the depart12 ment or unit involved, and shall make available upon 

13 request to nurses assigned to the department or unit 

14 the daily nurse schedule for such department or 

15 unit. 

16 ‘‘(7) CIVIL MONEY PENALTY.— 

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

18 impose a civil money penalty of not more than 

19 $10,000 for each knowing violation of the provi20 sions of this subsection committed by a provider 

21 of services. 

22 ‘‘(B) PATTERNS OF VIOLATIONS.—Not23 withstanding subparagraph (A), the Secretary 

24 shall provide for the imposition of more severe 

25 civil money penalties under this paragraph for 


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1 providers of services that establish patterns of 

2 repeated violations of such provisions. 

3 ‘‘(C) ADMINISTRATION OF PENALTIES.— 

4 The provisions of section 1128A (other than 

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

6 money penalty under this paragraph in the 

7 same manner as such provisions apply to a pen8 alty or proceeding under section 1128A(a). 

9 The Secretary shall publish on the internet site of 

10 the Department of Health and Human Services the 

11 names of providers of services against which civil 

12 money penalties have been imposed under this para13 graph, the violation for which the penalty was im14 posed, and such additional information as the Sec15 retary determines appropriate. With respect to a 

16 provider of services that has had a change in owner17 ship, as determined by the Secretary, penalties im18 posed on the provider of services while under pre19 vious ownership shall no longer be published by the 

20 Secretary on such internet site after the 1-year pe21 riod beginning on the date of change in ownership. 

22 ‘‘(8) RULE OF CONSTRUCTION REGARDING

23 OTHER RIGHTS, REMEDIES, AND PROCEDURES.— 

24 Nothing in this subsection shall be construed to alter 

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1 dures affords to nurses under Federal, State, or 

2 local laws or under the terms of collective bargaining 

3 agreements, memorandums of understanding, or 

4 other agreements between such employees and their 

5 employers. 

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

7 ‘‘(A) MANDATORY OVERTIME.—The term 

8 ‘mandatory overtime’ means hours worked in 

9 excess of the periods of time described in para10 graph (1), except as provided in paragraph (2), 

11 pursuant to any request made by a provider of 

12 services to a nurse which, if refused or declined 

13 by the nurse involved, may result in an adverse 

14 employment consequence to the nurse, including 

15 discharge, discipline, loss of promotion, or retal16 iatory reporting of the nurse to the State pro17 fessional disciplinary agency involved. 

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

19 means time worked in excess of the periods of 

20 time described in paragraph (1). 

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

22 registered nurse or a licensed practical nurse. 

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

24 ‘provider of services’ means— 


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

2 1861(e)); 

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

4 in section 1861(f)); 

5 ‘‘(iii) a hospital outpatient depart6 ment; 

7 ‘‘(iv) a critical access hospital (as de8 fined in section 1861(mm)(1)); 

9 ‘‘(v) an ambulatory surgical center; 

10 ‘‘(vi) a home health agency (as de11 fined in section 1861(o)); 

12 ‘‘(vii) a rehabilitation agency; 

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

14 health clinic (as defined in section 

15 1861(aa)(2)); or 

16 ‘‘(ix) a Federally qualified health cen17 ter (as defined in section 1861(aa)(4)). 

18 ‘‘(E) DECLARED EMERGENCY OR DIS19 ASTER.—The term ‘declared emergency or dis20 aster’ means a major disaster or an emergency 

21 (as those terms are defined in section 102 of 

22 the Robert T. Stafford Disaster Relief and 

23 Emergency Assistance Act (42 U.S.C. 5122)), 

24 or an emergency or disaster as declared by a 

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1 ment, but does not include an emergency that 

2 results from a labor dispute in the health care 

3 industry or consistent understaffing. 

4 ‘‘(F) STANDARDS OF SAFE PATIENT

5 CARE.—The term ‘standards of safe patient 

6 care’ means the recognized professional stand7 ards governing the profession of the nurse in8 volved. 

9 ‘‘(10) RELATIONSHIP TO STATE LAW.—Nothing 

10 in this subsection shall be construed to preempt any 

11 State law that provides greater protections with re12 spect to mandatory overtime for nurses.’’. 

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

14 this section shall take effect 1 year after the date of enact15 ment of this Act. 

16 SEC. 4. REPORTS. 

17 (a) STANDARDS ON SAFE WORKING HOURS FOR

18 NURSES.— 

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

20 Human Services, acting through the Director of the 

21 Agency for Healthcare Research and Quality, shall 

22 conduct a study to establish appropriate standards 

23 for the maximum number of hours that a nurse who 

24 furnishes health care to patients may work without 

25 compromising the safety of such patients. Such 


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1 standards may vary by provider of service and by de2 partment within a provider of services, by duties or 

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

4 other factors that the Director determines appro5 priate. The Director may contract with an eligible 

6 entity or organization to carry out the study under 

7 this paragraph. 

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

9 date of the enactment of this Act, the Secretary 

10 shall submit to Congress a report on the study con11 ducted under paragraph (1) and shall include rec12 ommendations for such appropriate standards of 

13 maximum work hours. 

14 (b) REPORT ON MANDATORY OVERTIME IN FEDER15 ALLY OPERATED MEDICAL FACILITIES.— 

16 (1) STUDY.— 

17 (A) IN GENERAL.—The Director of the Of18 fice of Management and Budget shall conduct 

19 a study to determine the extent to which feder20 ally operated medical facilities have in effect 

21 practices and policies with respect to overtime 

22 requirements for nurses that are inconsistent 

23 with the provisions of section 1866(l) of the So24 cial Security Act, as added by section 3. 


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1 (B) FEDERALLY OPERATED MEDICAL FA2 CILITIES DEFINED.—In this subsection, the 

3 term ‘‘federally operated medical facilities’’ 

4 means acute care hospitals, freestanding clinics, 

5 and home health care clinics that are operated 

6 by the Department of Veterans Affairs, the De7 partment of Defense, or any other department 

8 or agency of the United States. 

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

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

11 of the Office of Management and Budget shall sub12 mit to Congress a report on the study conducted 

13 under paragraph (1) and shall include recommenda14 tions for the implementation of policies within feder15 ally operated medical facilities with respect to over16 time requirements for nurses that are consistent 

17 with such section 1866(l), as so added. 

Æ 


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