II 113th CONGRESS 1st Session S. 739 IN THE SENATE OF THE UNITED STATES April 16, 2013 Mrs. Boxer introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Public Health Service Act to establish direct care registered nurse-to-patient staffing ratio requirements in hospitals, and for other purposes.

1. Short title This Act may be cited as the National Nursing Shortage Reform and Patient Advocacy Act . 2. Minimum direct care registered nurse staffing requirements (a) Minimum direct care registered nurse staffing requirements The Public Health Service Act (42 U.S.C. 201 et seq.) is amended by adding at the end the following new title: XXXIV Minimum direct care registered nurse staffing requirements 3401. Minimum nurse staffing requirements (a) Staffing plan (1) In general A hospital shall implement a staffing plan that— (A) provides adequate, appropriate, and quality delivery of health care services and protects patient safety; and (B) is consistent with the requirements of this title. (2) Effective dates (A) Implementation of staffing plan Subject to subparagraph (B), the requirements under paragraph (1) shall take effect not later than 1 year after the date of enactment of this title. (B) Application of minimum direct care registered nurse-to-patient ratios The requirements under subsection (b) shall take effect as soon as practicable, as determined by the Secretary, but not later than 2 years after the date of enactment of this title, or in the case of a hospital in a rural area (as defined in section 1886(d)(2)(D) of the Social Security Act ), not later than 4 years after the date of enactment of this title. (b) Minimum direct care registered nurse-to-Patient ratios (1) In general Except as otherwise provided in this section, a hospital’s staffing plan shall provide that, at all times during each shift within a unit of the hospital, a direct care registered nurse shall be assigned to not more than the following number of patients in that unit, subject to paragraph (4): (A) One patient in trauma emergency units. (B) One patient in operating room units, provided that a minimum of 1 additional person serves as a scrub assistant in such unit. (C) Two patients in critical care units, including neonatal intensive care units, emergency critical care and intensive care units, labor and delivery units, coronary care units, acute respiratory care units, postanesthesia units, and burn units. (D) Three patients in emergency room units, stepdown units, pediatrics units, telemetry units, antepartum units, and combined labor, delivery, and postpartum units. (E) Four patients in medical-surgical units, intermediate care nursery units, psychiatric units, and other specialty care units. (F) Five patients in rehabilitation units, and skilled nursing units. (G) Six patients in well-baby nursery units and postpartum (3 couplets) units. (2) Units with different names The Secretary may apply minimum direct care registered nurse-to-patient ratios established in paragraph (1) to a type of hospital unit not referred to in such paragraph if such other unit provides a level of care to patients whose needs are similar to the needs of patients cared for in any unit referred to in such paragraph. (3) Restrictions (A) Prohibition against averaging A hospital shall not average the number of patients and the total number of direct care registered nurses assigned to patients in a hospital unit during any 1 shift or over any period of time for purposes of meeting the requirements under this subsection. (B) Prohibition against imposition of mandatory overtime requirements A hospital shall not impose mandatory overtime requirements to meet the hospital unit direct care registered nurse-to-patient ratios required under this subsection. (C) Relief during routine absences A hospital shall ensure that only a direct care registered nurse may relieve another direct care registered nurse during breaks, meals, and other routine, expected absences from a hospital unit. (4) Adjustment of ratios (A) In general If necessary to protect patient safety, the Secretary may prescribe regulations that— (i) increase minimum direct care registered nurse-to-patient ratios under this subsection to further limit the number of patients that may be assigned to each direct care nurse; or (ii) add minimum direct care registered nurse-to-patient ratios for units not referred to in paragraphs (1) and (2). (B) Consultation Such regulations shall be prescribed after consultation with affected hospitals and registered nurses. (5) No preemption of certain State-imposed ratios Nothing in this title shall preempt State standards that the Secretary determines to be at least equivalent to Federal requirements for a staffing plan established under this title. Minimum direct care registered nurse-to-patient ratios established under this subsection shall not preempt State requirements that the Secretary determines are at least equivalent to Federal requirements for a staffing plan established under this title. (6) Exemption in emergencies (A) In general The requirements established under this subsection shall not apply during a state of emergency if a hospital is requested or expected to provide an exceptional level of emergency or other medical services. (B) Guidance The Secretary shall issue guidance to hospitals that describes situations that constitute a state of emergency for purposes of the exemption under this paragraph. (c) Development and reevaluation of staffing plan (1) Considerations in development of plan In developing the staffing plan, a hospital shall provide for direct care registered nurse-to-patient ratios above the minimum direct care registered nurse-to-patient ratios required under subsection (b) if appropriate based upon consideration of the following factors: (A) The number of patients and acuity level of patients as determined by the application of an acuity system (as defined in section 3407(1)), on a shift-by-shift basis. (B) The anticipated admissions, discharges, and transfers of patients during each shift that impacts direct patient care. (C) Specialized experience required of direct care registered nurses on a particular unit. (D) Staffing levels and services provided by licensed vocational or practical nurses, licensed psychiatric technicians, certified nurse assistants, or other ancillary staff in meeting direct patient care needs not required by a direct care registered nurse. (E) The level and quality of technology available that affects the delivery of direct patient care. (F) The level of familiarity with hospital practices, policies, and procedures by temporary agency direct care registered nurses used during a shift. (G) Obstacles to efficiency in the delivery of patient care presented by physical layout. (2) Documentation of staffing A hospital shall specify the system used to document actual staffing in each unit for each shift. (3) Annual reevaluation of plan and acuity system (A) In general A hospital shall annually evaluate— (i) its staffing plan in each unit in relation to actual patient care requirements; and (ii) the accuracy of its acuity system. (B) Update A hospital shall update its staffing plan and acuity system to the extent appropriate based on such evaluation. (4) Transparency (A) In general Any acuity-based patient classification system adopted by a hospital under this section shall be transparent in all respects, including disclosure of detailed documentation of the methodology used to predict nursing staffing, identifying each factor, assumption, and value used in applying such methodology. (B) Public availability The Secretary shall establish procedures to provide that the documentation submitted under subsection (e) is available for public inspection in its entirety. (5) Registered nurse participation A staffing plan of a hospital shall be developed and subsequent reevaluations shall be conducted under this subsection on the basis of input from direct care registered nurses at the hospital or, where such nurses are represented through collective bargaining, from the applicable recognized or certified collective bargaining representative of such nurses. Nothing in this title shall be construed to permit conduct prohibited under the National Labor Relations Act or under the Federal Labor Relations Act. (d) Acuity tool (1) In general Not later than 2 years after the date of enactment of the National Nursing Shortage Reform and Patient Advocacy Act , the Secretary shall develop a national acuity tool that provides a transparent method for establishing nurse staffing requirements above the hospital unit direct care registered nurse-to-patient ratios required under subsection (b). (2) Implementation Each hospital may adopt and implement the national acuity tool described in paragraph (1), and provide staffing based on such tool. Any additional direct care registered nursing staffing above the hospital unit direct care registered nurse-to-patient ratios described in subsection (b) shall be assigned in a manner determined by such national acuity tool. (e) Submission of plan to Secretary A hospital shall submit to the Secretary its staffing plan required under subsection (a)(1) and any annual updates under subsection (c)(3)(B). 3402. Posting, records, and audits (a) Posting requirements In each unit, a hospital shall post a uniform notice in a form specified by the Secretary in regulation that— (1) explains requirements imposed under section 3401; (2) includes actual direct care registered nurse-to-patient ratios during each shift; and (3) is visible, conspicuous, and accessible to staff, patients, and the public. (b) Records (1) Maintenance of records Each hospital shall maintain accurate records of actual direct care registered nurse-to-patient ratios in each unit for each shift for no less than 2 years. Such records shall include— (A) the number of patients in each unit; (B) the identity and duty hours of each direct care registered nurse assigned to each patient in each unit in each shift; and (C) a copy of each notice posted under subsection (a). (2) Availability of records Each hospital shall make its records maintained under paragraph (1) available to— (A) the Secretary; (B) registered nurses and their collective bargaining representatives (if any); and (C) the public under regulations established by the Secretary, or in the case of a federally operated hospital, under section 552 of title 5, United States Code (commonly known as the Freedom of Information Act ). (c) Audits The Secretary shall conduct periodic audits to ensure— (1) implementation of the staffing plan in accordance with this title; and (2) accuracy in records maintained under this section. 3403. Minimum direct care licensed practical nurse staffing requirements (a) Establishment A hospital’s staffing plan shall comply with minimum direct care licensed practical nurse staffing requirements that the Secretary establishes for units in hospitals. Such staffing requirements shall be established not later than 18 months after the date of enactment of this title, and shall be based on the study conducted under subsection (b). (b) Study Not later than 1 year after the date of enactment of this title, the Secretary, acting through the Director of the Agency for Healthcare Research and Quality, shall complete a study of licensed practical nurse staffing and its effects on patient care in hospitals. The Director may contract with a qualified entity or organization to carry out such study under this paragraph. The Director shall consult with licensed practical nurses and organizations representing licensed practical nurses regarding the design and conduct of the study. (c) Application of registered nurse provisions to licensed practical nurse staffing requirements Paragraphs (2), (4), (5)(A), and (6) of section 3401(b), section 3401(c), and section 3402 shall apply to the establishment and application of direct care licensed practical nurse staffing requirements under this section in the same manner that they apply to the establishment and application of direct care registered nurse-to-patient ratios under sections 3401 and 3402. (d) Effective date The requirements of this section shall take effect as soon as practicable, as determined by the Secretary, but not later than 2 years after the date of enactment of this title, or in the case of a hospital in a rural area (as defined in section 1886(d)(2)(D) of the Social Security Act ), not later than 4 years after the date of enactment of this title. 3404. Adjustment in reimbursement (a) Medicare reimbursement The Secretary shall adjust payments made to hospitals under title XVIII of the Social Security Act in an amount equal to the net amount of additional costs incurred in providing services to Medicare beneficiaries that are attributable to compliance with requirements imposed under sections 3401 through 3403. The amount of such payment adjustments shall take into account recommendations contained in the report submitted by the Medicare Payment Advisory Commission under subsection (b). (b) MedPAC report Not later than 2 years after the date of the enactment of this title, the Medicare Payment Advisory Commission (established under section 1805 of the Social Security Act ) shall submit to Congress and the Secretary a report estimating total costs and savings attributable to compliance with requirements imposed under sections 3401 through 3403. Such report shall include recommendations on the need, if any, to adjust reimbursement for Medicare payments under subsection (a). 3405. Whistleblower and patient protections (a) Recognition of duty and right of nurses To advocate in the exclusive interest of the patient A nurse shall have the right to act as the patient’s advocate, as circumstances require, by— (1) initiating action to improve health care or to change decisions or activities, including the recommendations of health information technology tools, which, in the professional judgment of the nurse, are against the interests and wishes of the patient; and (2) giving the patient an opportunity to make informed decisions about health care before it is provided. (b) Refusal of assignment A nurse may refuse to accept an assignment as a nurse in a hospital if— (1) the assignment would violate section 3401 or 3403; 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. (c) Retaliation for refusal of assignment barred (1) No discharge, discrimination, or retaliation No hospital shall discharge, discriminate, or retaliate in any manner with respect to any aspect of employment (as defined in section 3407(5)), including discharge, promotion, compensation, or terms, conditions, or privileges of employment against a nurse based on the nurse’s refusal of a work assignment under subsection (b). (2) No filing of complaint No hospital shall file a complaint or a report against a nurse with the appropriate State professional disciplinary agency because of the nurse’s refusal of a work assignment described in subsection (b). (d) Cause of action Any nurse who has been discharged, discriminated against, or retaliated against in violation of subsection (c)(1) or against whom a complaint has been filed in violation of subsection (c)(2) may bring a cause of action in a United States district court. A nurse who prevails on the cause of action shall be entitled to one or more of the following: (1) Reinstatement. (2) Reimbursement of lost wages, compensation, and benefits. (3) Attorneys’ fees. (4) Court costs. (5) Other damages. (e) Complaint to Secretary (1) In general A nurse, patient, or other individual may file a complaint with the Secretary against a hospital that violates the provisions of this title. For any complaint filed, the Secretary shall— (A) receive and investigate the complaint; (B) determine whether a violation of this title as alleged in the complaint has occurred; and (C) if such a violation has occurred, issue an order that the complaining nurse or individual shall not suffer any retaliation described in subsection (c) or subsection (g). (f) Toll-Free telephone number (1) In general The Secretary shall provide for the establishment of a toll-free telephone hotline to provide information regarding the requirements under section 3401 and to receive reports of violations of such section. (2) Notice to patients A hospital shall provide each patient admitted to the hospital for inpatient care with the hotline described in paragraph (1), and shall give notice to each patient that such hotline may be used to report inadequate staffing or care. (g) Protection for reporting (1) Prohibition on retaliation or discrimination A hospital shall not discriminate or retaliate in any manner against any patient, employee, or contract employee of the hospital, or any other individual, on the basis that such individual, in good faith, individually or in conjunction with another person or persons, has presented a grievance or complaint, or has initiated or cooperated in any investigation or proceeding of any governmental entity, regulatory agency, or private accreditation body, 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. (2) Good faith defined For purposes of this subsection, an individual shall be deemed to be acting in good faith if the individual reasonably believes— (A) the information reported or disclosed is true; and (B) a violation of this title has occurred or may occur. (h) Prohibition on interference with rights (1) Exercise of rights It shall be unlawful for any hospital to— (A) interfere with, restrain, or deny the exercise, or attempt to exercise, by any person of any right provided or protected under this title; or (B) coerce or intimidate any person regarding the exercise or attempt to exercise such right. (2) Opposition to unlawful policies or practices It shall be unlawful for any hospital to discriminate or retaliate against any person for opposing any hospital policy, practice, or actions which are alleged to violate, breach, or fail to comply with any provision of this title. (3) Prohibition on interference with protected communications A hospital (or an individual representing a hospital) shall not make, adopt, or enforce any rule, regulation, policy, or practice which in any manner directly or indirectly prohibits, impedes, or discourages a direct care registered nurse from, or intimidates, coerces, or induces a direct care registered nurse regarding, engaging in free speech activities or disclosing information as provided under this title. (4) Prohibition on interference with collective action A hospital (or an individual representing a hospital) shall not in any way interfere with the rights of nurses to organize, bargain collectively, and engage in concerted activity under section 7 of the National Labor Relations Act ( 29 U.S.C. 157 ). (i) Notice A hospital shall post in an appropriate location in each unit a conspicuous notice in a form specified by the Secretary that— (1) explains the rights of nurses, patients, and other individuals under this section; (2) includes a statement that a nurse, patient, or other individual may file a complaint with the Secretary against a hospital that violates the provisions of this title; and (3) provides instructions on how to file a complaint under paragraph (2). (j) Effective dates (1) Refusal; retaliation; cause of action (A) In general Subsections (b) through (d) shall apply to refusals occurring on or after the effective date of the provision to which the refusal relates. (B) Exception Subsection (b)(2) shall not apply to refusals in any hospital before the requirements of section 3401(a) apply to that hospital. (2) Protections for reporting Subsection (g)(1) shall apply to actions occurring on or after the effective date of the provision to which the violation relates, except that such subsection shall apply to initiation, cooperation, or participation in an investigation or proceeding on or after the date of enactment of this title. (3) Notice Subsection (i) shall take effect 18 months after the date of enactment of this title. 3406. Enforcement (a) In general The Secretary shall enforce the requirements and prohibitions of this title in accordance with this section. (b) Procedures for receiving and investigating complaints The Secretary shall establish procedures under which— (1) any person may file a complaint alleging that a hospital has violated a requirement or a prohibition of this title; and (2) such complaints shall be investigated by the Secretary. (c) Remedies If the Secretary determines that a hospital has violated a requirement of this title, the Secretary— (1) shall require the facility to establish a corrective action plan to prevent the recurrence of such violation; and (2) may impose civil money penalties, as described in subsection (d). (d) Civil penalties (1) In general In addition to any other penalties prescribed by law, the Secretary may impose civil penalties as follows: (A) Hospital liability The Secretary may impose on a hospital found to be in violation of this title, a civil money penalty of not more than $25,000 for each knowing violation of a requirement of this title, except that the Secretary shall impose a civil money penalty of more than $25,000 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) Individual liability The Secretary may impose on an individual who— (i) is employed by a hospital found by the Secretary to have violated a requirement of this title; and (ii) willfully violates this title, a civil money penalty of not more than $20,000 for each such violation. (2) Procedures The provisions of section 1128A of the Social Security Act (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 such section 1128A. (e) Public notice of violations (1) Internet website The Secretary shall publish on the Internet website of the Department of Health and Human Services the names of participating hospitals on which civil money penalties have been imposed under this subsection, the violation for which such penalty was imposed, and such additional information as the Secretary determines appropriate. (2) 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 website after the 1-year period beginning on the date of change in ownership. (f) Offset Funds collected by the Secretary under this section shall be used to offset the costs of enforcing this title. 3407. Definitions For purposes of this title: (1) Acuity system The term acuity system means an established measurement tool that— (A) predicts nursing care requirements for individual patients based on severity of patient illness, need for specialized equipment and technology, intensity of nursing interventions required, and the complexity of clinical nursing judgment needed to design, implement, and evaluate the patient’s nursing care plan; (B) details the amount of nursing care needed, both in number of nurses and in skill mix of nursing personnel required, on a daily basis, for each patient in a nursing department or unit; (C) takes into consideration the patient care services provided not only by registered nurses but also by direct care licensed practical nurses and other health care personnel; and (D) is stated in terms that can be readily used and understood by nurses. (2) Direct care licensed practical nurse The term direct care licensed practical nurse means an individual who has been granted a license by at least 1 State to practice as a licensed practical nurse or a licensed vocational nurse and who provides bedside care for 1 or more patients. (3) Direct care registered nurse The term direct care registered nurse means an individual who has been granted a license by at least 1 State to practice as a registered nurse and who provides bedside care for 1 or more patients. (4) Employment The term employment includes the provision of services under a contract or other arrangement. (5) Hospital The term hospital has the meaning given that term in section 1861(e) of the Social Security Act and includes a hospital that is operated by the Department of Veterans Affairs and a long-term care hospital (as defined in section 1861(ccc) of such Act). (6) Nurse The term nurse means any direct care registered nurse or direct care licensed practical nurse (as the case may be), regardless of whether or not the nurse is an employee. (7) Staffing plan The term staffing plan means a staffing plan required under section 3401. (8) State of emergency The term state of emergency means a state of emergency that is an unpredictable or unavoidable occurrence at an unscheduled or unpredictable interval, relating to health care delivery and requiring immediate medical interventions and care, but such term does not include a state of emergency that results from a labor dispute in the health care industry or consistent understaffing. 3408. Rule of construction Nothing in this title shall be construed to authorize disclosure of private and confidential patient information, except in the case where such disclosure is otherwise required by law, compelled by proper legal process, consented to by the patient, provided in confidence to regulatory or accreditation agencies or other government entities for investigatory purposes, or provided pursuant to formal or informal complaints of unlawful or improper practices for purposes of achieving corrective and remedial action. . (b) Recommendations to Congress Not later than 1 year after the date of enactment of this Act, the Secretary of Health and Human Services shall submit to Congress a report containing recommendations for ensuring that sufficient numbers of nurses are available to meet the requirements imposed by title XXXIV of the Public Health Service Act , as added by subsection (a). (c) Report by HRSA (1) In general Not later than 2 years after the date of enactment of this Act, the Administrator of the Health Resources and Services Administration, in consultation with the National Health Care Workforce Commission, shall submit to Congress a report regarding the relationship between nurse staffing levels and nurse retention in hospitals. (2) Updated report Not later than 5 years after the date of enactment of this Act, the Administrator of the Health Resources and Services Administration, in consultation with the National Health Care Workforce Commission, shall submit to Congress an update of the report submitted under paragraph (1). 3. Enforcement of requirements through Federal programs (a) Medicare program 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 (V); (2) in subparagraph (W), as added by section 3005(1)(C) of the Patient Protection and Affordable Care Act ( Public Law 111–148 )— (A) by moving such subparagraph 2 ems to the left; and (B) by striking the period at the end and inserting a comma; (3) by redesignating subparagraph (W), as added by section 6406(b)(3) of the Patient Protection and Affordable Care Act ( Public Law 111–148 ), as subparagraph (X) and moving such subparagraph 2 ems to the left; (4) in subparagraph (X), as redesignated by paragraph (3), by striking the period at the end and inserting , and ; and (5) by inserting after subparagraph (X), as so redesignated, the following: (Y) in the case of a hospital, to be subject to the provisions of title XXXIV of the Public Health Service Act . . (b) Medicaid program Section 1902(a) of the Social Security Act ( 42 U.S.C. 1396a(a) ) is amended— (1) in paragraph (82)(C), by striking and at the end; (2) in paragraph (83), by striking the period at the end and inserting ; and ; and (3) by inserting after paragraph (83) the following new paragraph: (84) provide that any hospital receiving payments under such plan shall be subject to the provisions of title XXXIV of the Public Health Service Act . . (c) Health Benefits Program of the Department of Veterans Affairs Section 8110(a) of title 38, United States Code, is amended by adding at the end the following: (7) Subject to appropriations, the Secretary of Veterans Affairs may require that a Department medical facility that is a hospital shall comply with the provisions of title XXXIV of the Public Health Service Act. (8) Nothing either in chapter 74 of this title or in section 7106 of title 5 shall preclude enforcement of the provisions of title XXXIV of the Public Health Service Act with respect to a Department hospital through grievance procedures negotiated in accordance with chapter 71 of title 5. . (d) Authorization of appropriations There are authorized to be appropriated to the Secretary of Veterans Affairs, for compliance with title XXXIV of the Public Health Service Act pursuant to section 8110(a)(7) of title 38, United States Code, such sums as may be necessary for fiscal year 2014 and each subsequent fiscal year. 4. Nurse Workforce Initiative (a) Scholarship and stipend program Section 846(d) of the Public Health Service Act ( 42 U.S.C. 297n(d) ) is amended— (1) in the section heading, by inserting and Stipend after Scholarship ; and (2) in paragraph (1), by inserting or stipends after scholarships . (b) Nurse retention grants Section 831A(b) of the Public Health Service Act (42 U.S.C. 296p–1(b)) is amended— (1) by striking Grants for Career Ladder Program .— and inserting Grants for Nurse Retention .— ; (2) in paragraph (2), by striking ; or and inserting a semicolon; (3) in paragraph (3), by striking the period and inserting a semicolon; and (4) by adding at the end the following: (4) to provide additional support to nurses entering the workforce by implementing nursing preceptorship projects that establish a period of practical and clinical experiences and training for nursing students, newly hired nurses, and recent graduates of a direct care degree programs for registered nurses; or (5) to implement mentorship projects that assist new or transitional direct care registered nurses in adapting to the hospital setting. .