II 116th CONGRESS 2d Session S. 4541 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. Short title This Act may be cited as the Nurse Overtime and Patient Safety Act of 2020 . 2. Findings Congress finds as follows: (1) The Federal Government has a substantial interest in assuring that the delivery of health care services to patients in health care facilities is adequate and safe. (2) Research, including a study published in the Health Services Research in October 2014 and a 2019 study from New York University, document the following: (A) Limits on work hours have long been found in high-risk occupational settings where long work hours can adversely affect safety and performance as well as job satisfaction and quality of life. (B) Regulations limiting work hours were first instituted in the 1930s. (C) Adoption of work hour regulations has been slower in the health care sector. (D) A review of the current literature indicates that despite potential pitfalls of discontinuity in care, regulated work hours for nurses improve occupational and patient safety. (E) The work year for registered nurses is substantially longer than the national average by 200 work hours. (F) When nurses with more than one position of employment are taken into account, total nurse work hours may be greater than the estimate above. (G) Furthermore, because nurses frequently work under a 12-hour shift schedule, they not only work extended hours but also return to work often without sufficient time for rest. (H) Newly licensed nurses work an average of 39.4 hours a week, predominantly in 12-hour shifts. (I) More than 13 percent of newly licensed nurses report having a second paid job. (J) New nurses prefer working the day shift, and the preferred shift length is 12 hours. (K) Twelve percent of nurses report working mandatory overtime, and nearly half work voluntary overtime at an average of three hours in a workweek. (3) Nurses working long hours often experience fatigue, poor sleep quality, impaired vigilance, and lack of alertness, which contributes to medical errors and results in other consequences that compromise patient safety, even after controlling for staffing levels and hospital characteristics. (4) Eighteen States have passed legislation or promulgated regulations restricting mandatory overtime for nurses. 3. Limitations on mandatory overtime for nurses (a) Provider agreements Section 1866 of the Social Security Act ( 42 U.S.C. 1395cc ) is amended— (1) in subsection (a)(1)— (A) in subparagraph (X), by striking and at the end; (B) in subparagraph (Y), by striking the period and inserting , and ; and (C) by inserting after subparagraph (Y) the following new subparagraph: (Z) to comply with the requirements of subsection (l) (relating to limitations on mandatory overtime for nurses). ; and (2) by adding at the end the following new subsection: (l) Limitations on mandatory overtime for nurses For purposes of subsection (a)(1)(Z), the requirements of this subsection are the following: (1) Prohibition on mandatory overtime (A) In general Except as provided in this subsection, a provider of services shall not, directly or indirectly, require a nurse to work— (i) in excess of— (I) a previously scheduled work shift or duty period of the nurse, regardless of the length of the shift; (II) 48 hours in any workweek (as defined in section 778.105 of title 29, Code of Federal Regulations, or any successor regulation); or (III) 12 consecutive hours in a 24-hour period; or (ii) during the 10-hour period immediately following the 12th hour worked in a shift or duty period during a 24-hour period. (B) Hours worked For purposes of subparagraph (A), time spent by a nurse in the following shall be included as hours worked: (i) Required meetings or while receiving education or training. (ii) On call or on standby when the nurse is required to be at the provider of services. (iii) On call or on standby when the nurse is not required to be at the provider of services. (C) Clarification regarding voluntary overtime Nothing in this subsection shall be construed to preclude a nurse from volunteering to work overtime. (2) Exceptions (A) In general Subject to subparagraph (B), the requirements of paragraph (1) shall not apply to a provider of services during a declared emergency or disaster (as defined in paragraph (9)(E)) if the provider is requested, or otherwise is expected, to provide an exceptional level of emergency or other medical services to the community. (B) Limitations With respect to a provider of services to which subparagraph (A) applies, a nurse may only be required to work for periods in excess of the periods described in paragraph (1) if— (i) the provider has made reasonable efforts to fill the immediate staffing needs of the provider through alternative means; (ii) the duration of the work requirement does not extend past the earlier of— (I) the date on which the declared emergency or disaster ends; or (II) the date on which the provider’s direct role in responding to the medical needs resulting from the declared emergency or disaster ends; (iii) a staff vacancy for the next shift becomes known at the end of the current shift; and (iv) there is potential harm to an assigned patient if the nursing staff member leaves the assignment or transfers care to another nursing staff member. (3) Whistleblower protections for nurses (A) Right to report (i) In general A nurse may file a complaint with the Secretary against a provider of services who violates the provisions of this subsection. (ii) Procedure The Secretary shall establish a procedure under which a nurse may file a complaint under clause (i). (B) Investigation of complaint The Secretary shall investigate complaints of violations filed by a nurse under subparagraph (A). (C) Actions If the Secretary determines that a provider of services has violated the provisions of this subsection, the Secretary shall require the provider to establish a plan of action to eliminate the occurrence of such violation, and may seek civil money penalties under paragraph (7). (4) Nurse nondiscrimination protections (A) In general A provider of services shall not terminate or propose to terminate, penalize, discriminate, or retaliate in any manner with respect to any aspect of employment, including discharge, promotion, compensation, or terms, conditions, or privileges of employment, against a nurse who refuses to work mandatory overtime or who in good faith, individually or in conjunction with another person or persons— (i) reports a violation or suspected violation of this subsection to a public regulatory agency, a private accreditation body, or the management personnel of the provider of services; (ii) initiates, cooperates, or otherwise participates in an investigation or proceeding brought by a regulatory agency or private accreditation body concerning matters covered by this subsection; or (iii) informs or discusses with other employees, with representatives of those employees, or with representatives of associations of health care professionals, violations or suspected violations of this subsection. (B) Retaliatory reporting A provider of services may not file a complaint or a report against a nurse with the appropriate State professional disciplinary agency because the nurse refused to comply with a request to work mandatory overtime. (C) Good faith For purposes of this paragraph, a nurse is deemed to be acting in good faith if the nurse reasonably believes— (i) that the information reported or disclosed is true; and (ii) that a violation has occurred or may occur. (5) Notice policy and requirements (A) Requirement to develop a policy and procedure Each provider of services shall develop a policy and have in place procedures to ensure, at a minimum, that— (i) mandatory overtime, when required as described in paragraph (2)(B), is documented in writing; and (ii) mandatory overtime policies and procedures are clearly written, provided to all new nursing staff and readily available to all nursing staff. (B) Requirement to post notice Each provider of services shall post conspicuously in an appropriate location a sign (in a form specified by the Secretary) specifying rights of nurses under this subsection. (C) Right to file complaint Such sign shall include a statement that a nurse may file a complaint with the Secretary against a provider of services who violates the provisions of this subsection and information with respect to the manner of filing such a complaint. (6) Posting of nurse schedules A provider of services shall regularly post in a conspicuous manner the nurse schedules (for such periods of time that the Secretary determines appropriate by type or class of provider of services) for the department or unit involved, and shall make available upon request to nurses assigned to the department or unit the daily nurse schedule for such department or unit. (7) Civil money penalty (A) In general The Secretary may impose a civil money penalty of not more than $10,000 for each knowing violation of the provisions of this subsection committed by a provider of services. (B) Patterns of violations Notwithstanding subparagraph (A), the Secretary shall provide for the imposition of more severe civil money penalties under this paragraph for providers of services that establish patterns of repeated violations of such provisions. (C) Administration of penalties 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(a). The Secretary shall publish on the internet site of the Department of Health and Human Services the names of providers of services against which civil money penalties have been imposed under this paragraph, the violation for which the penalty was imposed, and such additional information as the Secretary determines appropriate. With respect to a provider of services that has had a change in ownership, as determined by the Secretary, penalties imposed on the provider of services while under previous ownership shall no longer be published by the Secretary on such internet site after the 1-year period beginning on the date of change in ownership. (8) Rule of construction regarding other rights, remedies, and procedures Nothing in this subsection shall be construed to alter or otherwise affect the rights, remedies, and procedures affords to nurses under Federal, State, or local laws or under the terms of collective bargaining agreements, memorandums of understanding, or other agreements between such employees and their employers. (9) Definitions In this subsection: (A) Mandatory overtime The term mandatory overtime means hours worked in excess of the periods of time described in paragraph (1), except as provided in paragraph (2), pursuant to any request made by a provider of services to a nurse which, if refused or declined by the nurse involved, may result in an adverse employment consequence to the nurse, including discharge, discipline, loss of promotion, or retaliatory reporting of the nurse to the State professional disciplinary agency involved. (B) Overtime The term overtime means time worked in excess of the periods of time described in paragraph (1). (C) Nurse The term nurse means a registered nurse or a licensed practical nurse. (D) Provider of services The term provider of services means— (i) a hospital (as defined in section 1861(e)); (ii) a psychiatric hospital (as defined in section 1861(f)); (iii) a hospital outpatient department; (iv) a critical access hospital (as defined in section 1861(mm)(1)); (v) an ambulatory surgical center; (vi) a home health agency (as defined in section 1861(o)); (vii) a rehabilitation agency; (viii) a clinic, including a rural health clinic (as defined in section 1861(aa)(2)); or (ix) a Federally qualified health center (as defined in section 1861(aa)(4)). (E) Declared emergency or disaster The term declared emergency or disaster means a major disaster or an emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5122 )), or an emergency or disaster as declared by a Governor of any State or Indian Tribal government, but does not include an emergency that results from a labor dispute in the health care industry or consistent understaffing. (F) Standards of safe patient care The term standards of safe patient care means the recognized professional standards governing the profession of the nurse involved. (10) Relationship to State law Nothing in this subsection shall be construed to preempt any State law that provides greater protections with respect to mandatory overtime for nurses. . (b) Effective date The amendments made by this section shall take effect 1 year after the date of enactment of this Act. 4. Reports (a) Standards on safe working hours for nurses (1) Study The Secretary of Health and Human Services, acting through the Director of the Agency for Healthcare Research and Quality, shall conduct a study to establish appropriate standards for the maximum number of hours that a nurse who furnishes health care to patients may work without compromising the safety of such patients. Such standards may vary by provider of service and by department within a provider of services, by duties or functions carried out by nurses, by shift, and by other factors that the Director determines appropriate. The Director may contract with an eligible entity or organization to carry out the study under this paragraph. (2) Report Not later than 2 years after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the study conducted under paragraph (1) and shall include recommendations for such appropriate standards of maximum work hours. (b) Report on mandatory overtime in Federally operated medical facilities (1) Study (A) In general The Director of the Office of Management and Budget shall conduct a study to determine the extent to which federally operated medical facilities have in effect practices and policies with respect to overtime requirements for nurses that are inconsistent with the provisions of section 1866(l) of the Social Security Act , as added by section 3. (B) Federally operated medical facilities defined In this subsection, the term federally operated medical facilities means acute care hospitals, freestanding clinics, and home health care clinics that are operated by the Department of Veterans Affairs, the Department of Defense, or any other department or agency of the United States. (2) Report Not later than 6 months after the date of the enactment of this Act, the Director of the Office of Management and Budget shall submit to Congress a report on the study conducted under paragraph (1) and shall include recommendations for the implementation of policies within federally operated medical facilities with respect to overtime requirements for nurses that are consistent with such section 1866(l), as so added.