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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2446 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  2d Session
                                S. 2446

To amend title XVIII of the Social Security Act to provide for patient 
   protection by establishing safe nurse staffing levels at certain 
              Medicare providers, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2018

  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 establishing safe nurse staffing levels at certain 
              Medicare providers, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safe Staffing for Nurse and Patient 
Safety Act of 2018''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The overwhelming weight of academic research continues 
        to demonstrate patient that safety, prevention of medication 
        errors, failure to rescue situations, patient deterioration, 
        patient death, and nurse burnout are all proportionate to the 
        number of nurses staffed in a hospital. Therefore, higher 
        staffing levels by experienced registered nurses are associated 
        with lower rates of negative patient outcomes and costs.
            (2) Proper nurse staffing decreases the rate of patients' 
        hospital readmissions. Medicare does not pay hospitals for 
        patients who are readmitted for the same condition within 30 
        days. In 2013, 17.5 percent of Medicare beneficiaries were 
        readmitted to a hospital within 30 days following discharge. 
        These readmissions cost Medicare an estimated $26 billion per 
        year. The research indicates, however, that proper nurse 
        staffing reduces such readmissions and pays for itself over the 
        long term.
            (3) The 2015 National Healthcare Retention and RN Staffing 
        Report revealed that nurse turnover costs the average U.S. 
        hospital nearly $5 million dollars every year. Appropriate 
        nurse staffing reduces nurse burnout and turnover, saving 
        hospitals money.
            (4) Proper nurse staffing helps prevent medication errors 
        and nurse burnout through decreasing healthcare worker fatigue. 
        Healthcare worker fatigue is a major patient safety hazard. The 
        academic literature indicates that appropriate staffing 
        policies and practices are an effective strategy to reducing 
        such fatigue and protecting patients.
            (5) Research shows that optimal nurse staffing and skill 
        mix improves patient satisfaction, and results in savings to 
        hospitals through reductions in negative, adverse patient 
        events. Improved patient satisfaction due to appropriate nurse 
        staffing is reflected in hospitals' patient satisfaction survey 
        results, which are publicly reported, and are a key measure for 
        value-based payment programs.
            (6) Research indicates that patients who receive care 
        during periods of sub-optimal nurse staffing experience 
        increased rates of medication errors, increased rates of death, 
        increased rates of failure-to-rescue, and worse outcomes.
            (7) As a payor for inpatient and outpatient hospital 
        services furnished to Medicare beneficiaries, the Federal 
        Government has a compelling interest in promoting the safety of 
        hospitalized patients by requiring any hospital participating 
        in the Medicare program to establish appropriate registered 
        nurse staffing levels.

SEC. 3. ESTABLISHMENT OF SAFE NURSE STAFFING LEVELS BY MEDICARE 
              PARTICIPATING HOSPITALS.

    (a) Requirement of Medicare Provider Agreement.--Section 1866(a)(1) 
of the Social Security Act (42 U.S.C. 1395cc(a)(1)) is amended--
            (1) by striking ``and'' at the end of subparagraph (X);
            (2) by striking the period at the end of subparagraph (Y) 
        and inserting ``, and''; and
            (3) by inserting after subparagraph (Y) the following new 
        subparagraph:
            ``(Z) in the case of a hospital (as defined in section 
        1861(e)), to meet the requirements of section 1899C.''.
    (b) Requirements.--Title XVIII of the Social Security Act (42 
U.S.C. 1395 et seq.) is amended by adding at the end the following new 
section:

   ``nurse staffing requirements for medicare participating hospitals

    ``Sec. 1899C.  (a) Implementation of Nurse Staffing Plan.--
            ``(1) In general.--Subject to paragraph (3), each 
        participating hospital shall implement a hospital-wide staffing 
        plan for nursing services furnished in the hospital.
            ``(2) Requirement for development of staffing plan by 
        hospital nurse staffing committee.--The hospital-wide staffing 
        plan for nursing services implemented by a hospital pursuant to 
        paragraph (1)--
                    ``(A) shall be developed by the hospital nurse 
                staffing committee established under subsection (b); 
                and
                    ``(B) shall require that an appropriate number of 
                registered nurses provide direct patient care in each 
                unit and on each shift of the hospital to ensure 
                staffing levels that--
                            ``(i) address the unique characteristics of 
                        the patients and hospital units; and
                            ``(ii) result in the delivery of safe, 
                        quality patient care, consistent with the 
                        requirements under subsection (c).
    ``(b) Hospital Nurse Staffing Committee.--
            ``(1) Establishment.--Each participating hospital shall 
        establish a hospital nurse staffing committee (in this section 
        referred to as the `Committee').
            ``(2) Composition.--A Committee established pursuant to 
        this subsection shall be composed of members as follows:
                    ``(A) Minimum 55 percent nurse participation.--Not 
                less than 55 percent of the members of the Committee 
                shall be registered nurses who provide direct patient 
                care but who are neither hospital nurse managers nor 
                part of the hospital administration staff.
                    ``(B) Inclusion of hospital nurse managers.--The 
                Committee shall include members who are hospital nurse 
                managers.
                    ``(C) Inclusion of nurses from specialty units.--
                The members of the Committee shall include at least 1 
                registered nurse who provides direct care from each 
                nurse specialty or unit of the hospital (each such 
                specialty or unit as determined by the hospital).
                    ``(D) Other hospital personnel.--The Committee 
                shall include such other personnel of the hospital as 
                the hospital determines to be appropriate.
            ``(3) Duties.--
                    ``(A) Development of staffing plan.--The Committee 
                shall develop a hospital-wide staffing plan for nursing 
                services furnished in the hospital consistent with the 
                requirements under subsection (c).
                    ``(B) Review and modification of staffing plan.--
                The Committee shall--
                            ``(i) conduct regular, ongoing monitoring 
                        of the implementation of the hospital-wide 
                        staffing plan for nursing services furnished in 
                        the hospital;
                            ``(ii) carry out evaluations of the 
                        hospital-wide staffing plan for nursing 
                        services at least annually; and
                            ``(iii) make such modifications to the 
                        hospital-wide staffing plan for nursing 
                        services as may be appropriate.
                    ``(C) Additional duties.--The Committee shall--
                            ``(i) develop policies and procedures for 
                        overtime requirements of registered nurses 
                        providing direct patient care and for 
                        appropriate time and manner of relief of such 
                        registered nurses during routine absences; and
                            ``(ii) carry out such additional duties as 
                        the Committee determines to be appropriate.
    ``(c) Staffing Plan Requirements.--
            ``(1) Plan requirements.--Subject to paragraph (2), a 
        hospital-wide staffing plan for nursing services developed and 
        implemented under this section shall--
                    ``(A) be based upon input from the registered nurse 
                staff of the hospital who provide direct patient care 
                or their exclusive representatives, as well as the 
                chief nurse executive;
                    ``(B) be based upon the number of patients and the 
                level and variability of intensity of care to be 
                provided to those patients, with appropriate 
                consideration given to admissions, discharges, and 
                transfers during each shift;
                    ``(C) take into account contextual issues affecting 
                nurse staffing and the delivery of care, including 
                architecture and geography of the environment and 
                available technology;
                    ``(D) take into account the level of education, 
                training, and experience of those registered nurses 
                providing direct patient care;
                    ``(E) take into account the staffing levels and 
                services provided by other health care personnel 
                associated with nursing care, such as certified nurse 
                assistants, licensed vocational nurses, licensed 
                psychiatric technicians, nursing assistants, aides, and 
                orderlies;
                    ``(F) take into account staffing levels recommended 
                by specialty nursing organizations;
                    ``(G) establish upwardly adjustable minimum ratios 
                of direct care registered nurses to patients for each 
                unit and for each shift of the hospital, based upon an 
                assessment by registered nurses of the level and 
                variability of intensity of care required by patients 
                under existing conditions;
                    ``(H) take into account unit and facility level 
                staffing, quality and patient outcome data, and 
                national comparisons, as available;
                    ``(I) ensure that a registered nurse shall not be 
                assigned to work in a particular unit of the hospital 
                without first having established the ability to provide 
                professional care in such unit; and
                    ``(J) provide for exemptions from some or all 
                requirements of the hospital-wide staffing plan for 
                nursing services during a declared state of emergency 
                (as defined in subsection (l)(1)) if the hospital is 
                requested or expected to provide an exceptional level 
                of emergency or other medical services.
            ``(2) Limitation.--A hospital-wide staffing plan for 
        nursing services developed and implemented under this section--
                    ``(A) shall not preempt any registered-nurse 
                staffing levels established under State law or 
                regulation; and
                    ``(B) may not utilize any minimum number of 
                registered nurses established under paragraph (1)(G) as 
                an upper limit on the nurse staffing of the hospital to 
                which such minimum number applies.
    ``(d) Reporting and Release to Public of Certain Staffing 
Information.--
            ``(1) Requirements for hospitals.--Each participating 
        hospital shall--
                    ``(A) post daily for each shift, in a clearly 
                visible place, a document that specifies in a uniform 
                manner (as prescribed by the Secretary) the current 
                number of licensed and unlicensed nursing staff 
                directly responsible for patient care in each unit of 
                the hospital, identifying specifically the number of 
                registered nurses;
                    ``(B) upon request, make available to the public--
                            ``(i) the nursing staff information 
                        described in subparagraph (A);
                            ``(ii) a detailed written description of 
                        the hospital-wide staffing plan implemented by 
                        the hospital pursuant to subsection (a); and
                            ``(iii) not later than 90 days after the 
                        date on which an evaluation is carried out by 
                        the Committee under subsection (b)(3)(B)(ii), a 
                        copy of such evaluation; and
                    ``(C) not less frequently than quarterly, submit to 
                the Secretary in a uniform manner (as prescribed by the 
                Secretary) the nursing staff information described in 
                subparagraph (A) through electronic data submission.
            ``(2) Secretarial responsibilities.--The Secretary shall--
                    ``(A) make the information submitted pursuant to 
                paragraph (1)(C) publicly available in a comprehensible 
                format (as described in subsection (e)(2)(D)(ii)), 
                including by publication on the Hospital Compare 
                Internet Web site of the Department of Health and Human 
                Services; and
                    ``(B) provide for the auditing of such information 
                for accuracy as a part of the process of determining 
                whether the participating hospital is in compliance 
                with the conditions of its agreement with the Secretary 
                under section 1866, including under subsection 
                (a)(1)(Y) of such section.
    ``(e) Recordkeeping; Collection and Reporting of Quality Data; 
Evaluation.--
            ``(1) Recordkeeping.--Each participating hospital shall 
        maintain for a period of at least 3 years (or, if longer, until 
        the conclusion of any pending enforcement activities) such 
        records as the Secretary deems necessary to determine whether 
        the hospital has implemented a hospital-wide staffing plan for 
        nursing services pursuant to subsection (a).
            ``(2) Collection and reporting of quality data on nursing 
        services.--
                    ``(A) In general.--The Secretary shall require the 
                collection, aggregation, maintenance, and reporting of 
                quality data relating to nursing services furnished by 
                each participating hospital.
                    ``(B) Use of endorsed measures.--In carrying out 
                this paragraph, the Secretary shall use only quality 
                measures for nursing-sensitive care that are endorsed 
                by the consensus-based entity with a contract under 
                section 1890(a).
                    ``(C) Use of qualified third-party entities for 
                collection and submission of data.--
                            ``(i) In general.--A participating hospital 
                        may enter into agreements with third-party 
                        entities that have demonstrated expertise in 
                        the collection and submission of quality data 
                        on nursing services to collect, aggregate, 
                        maintain, and report the quality data of the 
                        hospital pursuant to subparagraph (A).
                            ``(ii) Construction.--Nothing in clause (i) 
                        shall be construed to excuse or exempt a 
                        participating hospital that has entered into an 
                        agreement described in such clause from 
                        compliance with requirements for quality data 
                        collection, aggregation, maintenance, and 
                        reporting imposed under this paragraph.
                    ``(D) Reporting of quality data.--
                            ``(i) Publication on hospital compare web 
                        site.--Subject to the succeeding provisions of 
                        this subparagraph, the Secretary shall make the 
                        data submitted pursuant to subparagraph (A) 
                        publicly available, including by publication on 
                        the Hospital Compare Internet Web site of the 
                        Department of Health and Human Services.
                            ``(ii) Comprehensible format.--Data made 
                        available to the public under clause (i) shall 
                        be presented in a clearly understandable format 
                        that permits consumers of hospital services to 
                        make meaningful comparisons among hospitals, 
                        including concise explanations in plain English 
                        of how to interpret the data, of the difference 
                        in types of nursing staff, of the relationship 
                        between nurse staffing levels and quality of 
                        care, and of how nurse staffing may vary based 
                        on patient case mix.
                            ``(iii) Opportunity to correct errors.--The 
                        Secretary shall establish a process under which 
                        participating hospitals may review data 
                        submitted to the Secretary pursuant to 
                        subparagraph (A) to correct errors, if any, 
                        contained in that data submission before making 
                        the data available to the public under clause 
                        (i).
            ``(3) Evaluation of data.--The Secretary shall provide for 
        the analysis of quality data collected from participating 
        hospitals under paragraph (2) in order to evaluate the effect 
        of hospital-wide staffing plans for nursing services 
        implemented pursuant to subsection (a) on--
                    ``(A) patient outcomes that are nursing sensitive 
                (such as pressure ulcers, fall occurrence, falls 
                resulting in injury, length of stay, and central line 
                catheter infections); and
                    ``(B) nursing workforce safety and retention 
                (including work-related injury, staff skill mix, 
                nursing care hours per patient day, vacancy and 
                voluntary turnover rates, overtime rates, use of 
                temporary agency personnel, and nurse satisfaction).
    ``(f) Refusal of Assignment.--A nurse may refuse to accept an 
assignment as a nurse in a participating hospital, or in a unit of a 
participating hospital, if--
            ``(1) the assignment is in violation of the hospital-wide 
        staffing plan for nursing services implemented pursuant to 
        subsection (a); or
            ``(2) the nurse is not prepared by education, training, or 
        experience to fulfill the assignment without compromising the 
        safety of any patient or jeopardizing the license of the nurse.
    ``(g) Enforcement.--
            ``(1) Responsibility.--The Secretary shall enforce the 
        requirements and prohibitions of this section in accordance 
        with the succeeding provisions of this subsection.
            ``(2) Procedures for receiving and investigating 
        complaints.--The Secretary shall establish procedures under 
        which--
                    ``(A) any person may file a complaint that a 
                participating hospital has violated a requirement of or 
                a prohibition under this section; and
                    ``(B) such complaints are investigated by the 
                Secretary.
            ``(3) Remedies.--Except as provided in paragraph (5), if 
        the Secretary determines that a participating hospital has 
        violated a requirement of this section, the Secretary--
                    ``(A) shall require the hospital to establish a 
                corrective action plan to prevent the recurrence of 
                such violation; and
                    ``(B) may impose civil money penalties under 
                paragraph (4).
            ``(4) Civil money penalties.--
                    ``(A) In general.--In addition to any other 
                penalties prescribed by law, the Secretary may impose a 
                civil money penalty of not more than $10,000 for each 
                knowing violation of a requirement of this section, 
                except that the Secretary shall impose a civil money 
                penalty of more than $10,000 for each such violation in 
                the case of a participating hospital that the Secretary 
                determines has a pattern or practice of such violations 
                (with the amount of such additional penalties being 
                determined in accordance with a schedule or methodology 
                specified in regulations).
                    ``(B) Procedures.--The provisions of section 1128A 
                (other than subsections (a) and (b)) shall apply to a 
                civil money penalty under this paragraph in the same 
                manner as such provisions apply to a penalty or 
                proceeding under section 1128A.
                    ``(C) Public notice of violations.--
                            ``(i) Internet web site.--The Secretary 
                        shall publish on an appropriate Internet Web 
                        site of the Department of Health and Human 
                        Services the names of participating hospitals 
                        on which civil money penalties have been 
                        imposed under this section, the violation for 
                        which the penalty was imposed, and such 
                        additional information as the Secretary 
                        determines appropriate.
                            ``(ii) Change of ownership.--With respect 
                        to a participating hospital that had a change 
                        in ownership, as determined by the Secretary, 
                        penalties imposed on the hospital while under 
                        previous ownership shall no longer be published 
                        by the Secretary of such Internet Web site 
                        after the 1-year period beginning on the date 
                        of the change in ownership.
            ``(5) Penalty for failure to collect and report quality 
        data on nursing services.--
                    ``(A) In general.--In the case of a participating 
                hospital that fails to comply with requirements under 
                subsection (e)(2) to collect, aggregate, maintain, and 
                report quality data relating to nursing services 
                furnished by the hospital, instead of the remedies 
                described in paragraph (3), the provisions of 
                subparagraph (B) shall apply with respect to each such 
                failure of the participating hospital.
                    ``(B) Penalty.--In the case of a failure by a 
                participating hospital to comply with the requirements 
                under subsection (e)(2) for a year, each such failure 
                shall be deemed to be a failure to submit data required 
                under section 1833(t)(17)(A), section 
                1886(b)(3)(B)(viii), section 1886(j)(7)(A), or section 
                1886(m)(5)(A), as the case may be, with respect to the 
                participating hospital involved for that year.
    ``(h) Whistleblower Protections.--
            ``(1) Prohibition of discrimination and retaliation.--A 
        participating hospital shall not discriminate or retaliate in 
        any manner against any patient or employee of the hospital 
        because that patient or employee, or any other person, has 
        presented a grievance or complaint, or has initiated or 
        cooperated in any investigation or proceeding of any kind, 
        relating to--
                    ``(A) the hospital-wide staffing plan for nursing 
                services developed and implemented under this section; 
                or
                    ``(B) any right, other requirement or prohibition 
                under this section, including a refusal to accept an 
                assignment described in subsection (f).
            ``(2) Relief for prevailing employees.--An employee of a 
        participating hospital who has been discriminated or retaliated 
        against in employment in violation of this subsection may 
        initiate judicial action in a United States district court and 
        shall be entitled to reinstatement, reimbursement for lost 
        wages, and work benefits caused by the unlawful acts of the 
        employing hospital. Prevailing employees are entitled to 
        reasonable attorney's fees and costs associated with pursuing 
        the case.
            ``(3) Relief for prevailing patients.--A patient who has 
        been discriminated or retaliated against in violation of this 
        subsection may initiate judicial action in a United States 
        district court. A prevailing patient shall be entitled to 
        liquidated damages of $5,000 for a violation of this statute in 
        addition to any other damages under other applicable statutes, 
        regulations, or common law. Prevailing patients are entitled to 
        reasonable attorney's fees and costs associated with pursuing 
        the case.
            ``(4) Limitation on actions.--No action may be brought 
        under paragraph (2) or (3) more than 2 years after the 
        discrimination or retaliation with respect to which the action 
        is brought.
            ``(5) Treatment of adverse employment actions.--For 
        purposes of this subsection--
                    ``(A) an adverse employment action shall be treated 
                as discrimination or retaliation; and
                    ``(B) the term `adverse employment action' 
                includes--
                            ``(i) the failure to promote an individual 
                        or provide any other employment-related benefit 
                        for which the individual would otherwise be 
                        eligible;
                            ``(ii) an adverse evaluation or decision 
                        made in relation to accreditation, 
                        certification, credentialing, or licensing of 
                        the individual; and
                            ``(iii) a personnel action that is adverse 
                        to the individual concerned.
    ``(i) Relationship to State Laws.--Nothing in this section shall be 
construed as exempting or relieving any person from any liability, 
duty, penalty, or punishment provided by the law of any State or 
political subdivision of a State, other than any such law which 
purports to require or permit any action prohibited under this title.
    ``(j) Relationship to Conduct Prohibited Under the National Labor 
Relations Act or Other Collective Bargaining Laws.--Nothing in this 
section shall be construed as--
            ``(1) permitting conduct prohibited under the National 
        Labor Relations Act or under any other Federal, State, or local 
        collective bargaining law; or
            ``(2) preempting, limiting, or modifying a collective 
        bargaining agreement entered into by a participating hospital.
    ``(k) Regulations.--
            ``(1) In general.--The Secretary shall promulgate such 
        regulations as are appropriate and necessary to implement this 
        section.
            ``(2) Implementation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), as soon as practicable but not later 
                than 2 years after the date of the enactment of this 
                section, a participating hospital shall have 
                implemented a hospital-wide staffing plan for nursing 
                services under this section.
                    ``(B) Special rule for rural hospitals.--In the 
                case of a participating hospital located in a rural 
                area (as defined in section 1886(d)(2)(D)), such 
                participating hospital shall have implemented a 
                hospital-wide staffing plan for nursing services under 
                this section as soon as practicable but not later than 
                4 years after the date of the enactment of this 
                section.
    ``(l) Definitions.--In this section:
            ``(1) Declared state of emergency.--The term `declared 
        state of emergency' means an officially designated state of 
        emergency that has been declared by the Federal Government or 
        the head of the appropriate State or local governmental agency 
        having authority to declare that the State, county, 
        municipality, or locality is in a state of emergency, but does 
        not include a state of emergency that results from a labor 
        dispute in the health care industry or consistent 
        understaffing.
            ``(2) Participating hospital.--The term `participating 
        hospital' means a hospital (as defined in section 1861(e)) that 
        has entered into a provider agreement under section 1866.
            ``(3) Person.--The term `person' means one or more 
        individuals, associations, corporations, unincorporated 
        organizations, or labor unions.
            ``(4) Registered nurse.--The term `registered nurse' means 
        an individual who has been granted a license to practice as a 
        registered nurse in at least one State.
            ``(5) Shift.--The term `shift' means a scheduled set of 
        hours or duty period to be worked at a participating hospital.
            ``(6) Unit.--The term `unit' means, with respect to a 
        hospital, an organizational department or separate geographic 
        area of a hospital, including a burn unit, a labor and delivery 
        room, a post-anesthesia service area, an emergency department, 
        an operating room, a pediatric unit, a stepdown or intermediate 
        care unit, a specialty care unit, a telemetry unit, a general 
        medical care unit, a subacute care unit, and a transitional 
        inpatient care unit.''.
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