PRINTER'S NO. 583
No. 489 Session of 2003
INTRODUCED BY SOLOBAY, VEON, ADOLPH, BARRAR, BEBKO-JONES, BLAUM,
CAPPELLI, CURRY, DeLUCA, GEORGE, GOODMAN, HALUSKA, HENNESSEY,
JAMES, KIRKLAND, LAUGHLIN, LEVDANSKY, MUNDY, O'BRIEN,
PETRARCA, READSHAW, SAINATO, SURRA, THOMAS, WALKO,
WASHINGTON, YUDICHAK, BELFANTI, BROWNE, COSTA, DALEY, EACHUS,
GERGELY, GRUCELA, HARHAI, HORSEY, JOSEPHS, KOTIK, LEDERER,
MELIO, MYERS, PALLONE, PRESTON, RUFFING, SANTONI, TANGRETTI,
TRAVAGLIO, WANSACZ, YOUNGBLOOD AND LaGROTTA,
FEBRUARY 26, 2003
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
FEBRUARY 26, 2003
AN ACT
1 Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An
2 act relating to health care; prescribing the powers and
3 duties of the Department of Health; establishing and
4 providing the powers and duties of the State Health
5 Coordinating Council, health systems agencies and Health Care
6 Policy Board in the Department of Health, and State Health
7 Facility Hearing Board in the Department of Justice;
8 providing for certification of need of health care providers
9 and prescribing penalties," further providing for purposes,
10 for definitions, for powers of the Department of Health, for
11 administration and for licensure; providing for compliance
12 with staffing plans and recordkeeping, for work assignment
13 policies and for public disclosure of staffing requirements;
14 further providing for license standards, reliance on
15 accrediting agencies and Federal Government, for medical
16 assistance payments and for civil penalties; and providing
17 for private cause of action, for grants and loan programs for
18 nurse recruitment.
19 The General Assembly of the Commonwealth of Pennsylvania
20 hereby enacts as follows:
21 Section 1. Section 102 of the act of July 19, 1979 (P.L.130,
22 No.48), known as the Health Care Facilities Act, is amended to
1 read:
2 Section 102. Purposes.
3 The General Assembly finds [that] as follows:
4 (1) That the health and welfare of Pennsylvania citizens
5 will be enhanced by the orderly and economical distribution
6 of health care resources to prevent needless duplication of
7 services. Such distribution of resources will be further by
8 governmental involvement to coordinate the health care
9 system. Such a system will enhance the public health and
10 welfare by making the delivery system responsive and adequate
11 to the needs of its citizens, and assuring that new health
12 care services and facilities are efficiently and effectively
13 used; that health care services and facilities continue to
14 meet high quality standards; and, that all citizens receive
15 humane, courteous and dignified treatment. In developing such
16 a coordinated health care system, it is the policy of the
17 Commonwealth to foster responsible private operation and
18 ownership of health care facilities, to encourage innovation
19 and continuous development of improved methods of health care
20 and to aid efficient and effective planning using local
21 health systems agencies. It is the intent of the General
22 Assembly that the Department of Health foster a sound health
23 care system which provides for quality care at appropriate
24 health care facilities throughout the Commonwealth.
25 (2) That a substantial interest exists in assuring that
26 delivery of health care services to patients in health care
27 facilities located within this Commonwealth is adequate and
28 safe and that health care facilities retain sufficient
29 nursing staff so as to promote optimal health care outcomes.
30 Inadequate hospital staffing results in dangerous medical
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1 errors and patient infections. Registered nurses constitute
2 the highest percentage of direct health care staff in acute
3 care facilities and have a central role in health care
4 delivery. To ensure the adequate protection and care for
5 patients in health care facilities it is essential that
6 qualified registered nurses be accessible and available to
7 meet the nursing needs of patients. Inadequate and poorly
8 monitored nurse staffing practices which result in having too
9 few registered nurses providing care jeopardize delivery of
10 quality health care services and adversely impact the health
11 of patients who enter hospitals and outpatient emergency and
12 surgical centers. The basic principles of staffing in health
13 care facilities should be focused on patient health care
14 needs and based on consideration of patient acuity levels and
15 services that need to be provided to ensure optimal outcomes.
16 While the focus of this act is on registered nurses who are
17 principal caregivers, safe staffing practices recognize the
18 importance of all health care workers in providing quality
19 patient care. The setting of staffing standards for registered
20 nurses is not to be interpreted as justifying the understaffing
21 of other critical health care workers, including licensed
22 practical nurses, social workers and unlicensed assistive
23 personnel. Indeed, the availability of these other health care
24 workers enables registered nurses to focus on the nursing care
25 functions that only registered nurses, by law, are permitted to
26 perform and thereby helps to ensure adequate staffing levels.
27 Establishing staffing standards for registered nurses in acute
28 care facilities ensures that health care facilities throughout
29 this Commonwealth operate in a manner that guarantees the public
30 safety and the delivery of quality health care services. In
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1 order to meet these standards incentives must be created to
2 increase the number of registered nurses within this
3 Commonwealth.
4 Section 2. Section 103 of the act is amended by adding
5 definitions to read:
6 Section 103. Definitions.
7 The following words and phrases when used in this act shall
8 have, unless the context clearly indicates otherwise, the
9 meanings given to them in this section:
10 * * *
11 "Acuity system." An established measurement instrument
12 which:
13 (1) Predicts nursing care requirements for individual
14 patients based on severity of patient illness, need for
15 specialized equipment and technology, intensity of nursing
16 interventions required and the complexity of clinical nursing
17 judgment needed to design, implement and evaluate the
18 patient's nursing care plan.
19 (2) Details the amount of nursing care needed, both in
20 number of direct care nurses and in skill mix of nursing
21 personnel required on a daily basis for each patient in a
22 nursing department or unit.
23 (3) Is stated in terms that readily can be used and
24 understood by direct-care nurses. The acuity system shall
25 take into consideration the patient care services provided
26 not only by registered nurses but also by licensed practical
27 nurses and other health care personnel.
28 "Assessment tool." A measurement system which compares the
29 staffing level in each nursing department or unit against actual
30 patient nursing care requirements in order to review the
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1 accuracy of an acuity system.
2 * * *
3 "Direct-care nurse." A registered nurse who has direct
4 responsibility to oversee or directly carry out medical
5 regimens, nursing or other bedside care for one or more
6 patients.
7 "Documented staffing plan." A detailed written plan setting
8 forth the minimum number and classification of direct-care
9 nurses required in each nursing department or unit in the health
10 facility for a given year, based on reasonable projections
11 derived from the patient census and average acuity level within
12 each department or unit during the prior year, the department or
13 unit size and geography, the nature of services provided and any
14 foreseeable changes in department or unit size or function
15 during the current year.
16 "Extended care facility." A home health care agency, a
17 hospice or a long-term care nursing facility.
18 * * *
19 "Nurse" or "registered nurse." An individual licensed to
20 practice professional nursing under the act of May 22, 1951
21 (P.L.317, No.69), known as "The Professional Nursing Law."
22 "Nursing care." Care which falls within the scope of
23 practice as prescribed by State law or otherwise encompassed
24 within recognized professional standards of nursing practice,
25 including assessment, nursing diagnosis, planning, intervention,
26 evaluation and patient advocacy.
27 * * *
28 "Staffing level." The actual numerical nurse-to-patient
29 ratio within a nursing department or unit.
30 * * *
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1 "Unit." A patient care component within a facility as
2 defined by the Department of Health.
3 Section 3. Section 803 of the act, added July 12, 1980
4 (P.L.655, No.136), is amended to read:
5 Section 803. Powers of the Department of Health.
6 The Department of Health shall have the power and its duty
7 shall be:
8 (1) to promulgate, after consultation with the policy
9 board, the rules and regulations necessary to carry out the
10 purposes and provisions of this chapter[; and], including
11 regulations defining terms, setting forth direct-care nurse-
12 to-patient ratios and prescribing the process for approving
13 acuity systems;
14 (2) to assure that the provisions of this chapter and
15 all rules and regulations promulgated under this chapter are
16 enforced[.]; and
17 (3) to promulgate, within six months of the effective
18 date of this paragraph, regulations providing for an
19 accessible and confidential system to report the failure to
20 comply with requirements of this chapter and public access to
21 information regarding reports of inspections, results,
22 deficiencies and corrections under this chapter.
23 Section 4. Sections 804 and 806 of the act are amended by
24 adding subsections to read:
25 Section 804. Administration.
26 * * *
27 (e) Approval of acuity system.--The department shall adopt
28 regulations prescribing the method by which it will approve a
29 facility's acuity system. The regulations may include a system
30 for class approval of acuity systems.
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1 Section 806. Licensure.
2 * * *
3 (h) Staffing requirements.--Each health care facility, other
4 than an extended care facility, licensed pursuant to this act
5 shall ensure that it is staffed in a manner that provides
6 sufficient, appropriately qualified direct-care nurses in each
7 department or unit within the facility in order to meet the
8 individualized care needs of its patients and to meet all of the
9 following requirements:
10 (1) As a condition of licensing, each facility annually
11 shall submit to the department a documented staffing plan
12 together with a written certification that the staffing plan
13 is sufficient to provide adequate and appropriate delivery of
14 health care services to patients for the ensuing year and
15 does all of the following:
16 (i) meets the minimum requirements of paragraph (2);
17 (ii) meets any additional requirements of other laws
18 or regulations;
19 (iii) employs and identifies an approved acuity
20 system for addressing fluctuations in actual patient
21 acuity levels and nursing care requirements requiring
22 increased staffing levels above the minimums set forth in
23 the plan;
24 (iv) factors in other unit or department activity
25 such as discharges, transfers and admissions,
26 administrative and support tasks that are expected to be
27 done by direct-care nurses in addition to direct nursing
28 care;
29 (v) factors in the staffing level of and services
30 provided by other health care personnel in meeting
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1 patient care needs, except that the staffing plan may not
2 incorporate or assume that nursing care functions
3 required by licensing law or regulations or accepted
4 standards of practice to be performed by a registered
5 nurse are to be performed by other personnel;
6 (vi) identifies the assessment tool used to validate
7 the acuity system relied on in the plan;
8 (vii) identifies the system which will be used to
9 document actual staffing on a daily basis within each
10 department or unit;
11 (viii) includes a written assessment of the accuracy
12 of the prior year's staffing plan in light of actual
13 staffing needs;
14 (ix) identifies each nurse staff classification
15 referenced in the plan together with a statement setting
16 forth minimum qualifications for each such
17 classification; and
18 (x) is produced in consultation with a majority of
19 the direct-care nurses within each department or unit or,
20 where applicable, with the recognized or certified
21 collective bargaining representative or representative of
22 the direct-care nurses.
23 (2) The staffing plan must incorporate, at a minimum,
24 the following direct-care nurse-to-patient ratios:
25 (i) One nurse to one patient: operating room and
26 trauma emergency units.
27 (ii) One nurse to two patients: all critical care
28 areas including emergency critical care and all intensive
29 care units, labor and delivery units and postanesthesia
30 units.
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1 (iii) One nurse to three patients: antepartum,
2 emergency room, pediatrics, step-down and telemetry
3 units.
4 (iv) One nurse to four patients: intermediate care
5 nursery, and medical/surgical and acute care psychiatric
6 units.
7 (v) One nurse to five patients: rehabilitation
8 units.
9 (vi) One nurse to six patients: postpartum (three
10 couplets) and well-baby nursery units.
11 (vii) For any units not listed above, including
12 psychiatric units in facilities other than acute care
13 hospitals, such direct-care nurse-to-patient ratio as
14 established by the department.
15 (3) The ratios set forth in paragraph (2) shall
16 constitute the maximum number of patients that may be
17 assigned to each direct-care nurse in a unit during one
18 shift. A nurse, including a nurse administrator or
19 supervisor, who does not have principal responsibility as a
20 direct-care nurse for a specific patient shall not be
21 included in the calculation of the nurse-to-patient ratio.
22 (4) Nothing shall preclude the department from
23 establishing and requiring a staffing plan to have higher
24 nurse-to-patient ratios than those set forth in paragraph
25 (2).
26 (5) The staffing plan may not incorporate or assume that
27 nursing care functions required by licensing law or
28 regulations or accepted standards of practice to be performed
29 by a registered nurse are to be performed by other personnel.
30 Section 5. The act is amended by adding sections to read:
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1 Section 806.2. Compliance with staffing plan and recordkeeping.
2 (a) Plan.--As a condition of licensing, a health care
3 facility required to have a staffing plan under section 806(h)
4 shall at all times staff in accordance with its staffing plan
5 and the staffing standards set forth under section 806(h),
6 provided that nothing herein shall be deemed to preclude any
7 such health care facility from implementing higher direct-care
8 nurse-to-patient staffing levels, nor shall the requirements set
9 forth be deemed to supersede or replace any higher requirements
10 otherwise mandated by law, regulation or contract.
11 (b) Appropriate license required.--For purposes of
12 compliance with the minimum staffing requirements standards set
13 forth under section 806(h), no nurse shall be assigned, or
14 included in the count of assigned nursing staff in a nursing
15 department or unit or a clinical area within the health facility
16 unless that nurse has an appropriate license under the
17 applicable registered nurse law, received prior orientation in
18 that clinical area sufficient to provide competent nursing care
19 to the patients in that area, and has demonstrated current
20 competence in providing care in that area. Hospitals which
21 utilize temporary nursing agencies shall have and adhere to a
22 written procedure to orient and evaluate personnel from these
23 sources to ensure adequate orientation and competency prior to
24 inclusion in the nurse-to-patient ratio.
25 (c) Daily records.--As a condition of licensure, each health
26 care facility required to have a staffing plan under section
27 806(h) shall maintain accurate daily records showing:
28 (1) The number of patients admitted, released and
29 present in each nursing department or unit within the
30 facility.
20030H0489B0583 - 10 -
1 (2) The individual acuity level of each patient present
2 in each nursing department or unit within the facility.
3 (3) The identity and duty hours of each direct-care
4 nurse in each nursing department or unit within the facility.
5 (d) Daily statistics.--As a condition of licensure, each
6 health care facility required to have a staffing plan under
7 section 806(h) shall maintain daily statistics, by nursing
8 department and unit, of mortality, morbidity, infection,
9 accident, injury and medical errors.
10 (e) Records retention.--All records required to be kept
11 under this subsection shall be maintained for a period of seven
12 years.
13 (f) Availability of records.--All records required to be
14 kept under this subsection shall be made available upon request
15 to the department and to the public, provided that information
16 released to the public shall comply with applicable patient
17 privacy laws and regulations.
18 Section 806.3. Work assignment policy.
19 (a) Written policy.--As a condition of licensure, each
20 health care facility other than an extended care facility shall
21 adopt, disseminate to direct-care nurses and comply with a
22 written policy that meets the requirements of this section,
23 detailing the circumstances under which a direct-care nurse may
24 refuse a work assignment.
25 (b) Minimum conditions.--At a minimum, the work assignment
26 policy shall permit a direct-care nurse to refuse an assignment
27 for which:
28 (1) The nurse is not prepared by education, training or
29 experience to safely fulfill the assignment without
30 compromising or jeopardizing patient safety, the nurse's
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1 ability to meet foreseeable patient needs or the nurse's
2 license.
3 (2) The assignment otherwise would violate requirements
4 under this act.
5 (c) Minimum procedures.--At a minimum, the work assignment
6 policy shall contain procedures for the following:
7 (1) Reasonable requirements for prior notice to the
8 nurse's supervisor regarding the nurse's request and
9 supporting reasons for being relieved of the assignment or
10 continued duty.
11 (2) Where feasible, an opportunity for the supervisor to
12 review the specific conditions supporting the nurse's
13 request, and to decide whether to remedy the conditions, to
14 relieve the nurse of the assignment or to deny the nurse's
15 request to be relieved of the assignment or continued duty.
16 (3) A process which permits the nurse to exercise the
17 right to refuse the assignment or continued on-duty status
18 when the supervisor denies the request to be relieved if:
19 (i) the supervisor rejects the request without
20 proposing a remedy or the proposed remedy would be
21 inadequate or untimely;
22 (ii) the complaint and investigation process with a
23 regulatory agency would be untimely to address concern;
24 and
25 (iii) the employee in good faith believes that the
26 assignment meets conditions justifying refusal.
27 (4) A nurse who refuses an assignment pursuant to a work
28 assignment policy established in this section shall not be
29 deemed, by reason thereof, to have engaged in negligent or
30 incompetent action, patient abandonment or otherwise to have
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1 violated applicable nursing law.
2 Section 806.4. Public disclosure of staffing requirements.
3 As a condition of licensing, a health care facility required
4 to have a staffing plan under section 806(h) shall:
5 (1) Post in a conspicuous place readily accessible to
6 the general public a notice prepared by the department
7 setting forth the mandatory provisions of this act relating
8 to staffing together with a statement of the mandatory and
9 actual daily nurse staffing levels in each nursing department
10 or unit.
11 (2) Upon request, make copies of the staffing plan filed
12 with the department available to the public.
13 (3) Make readily available to the nursing staff with a
14 department or unit, during each work shift, the following
15 information:
16 (i) A copy of the current staffing plan for that
17 department or unit.
18 (ii) Documentation of the number of direct-care
19 nurses required to be present during the shift based on
20 the approved adopted acuity system.
21 (iii) Documentation of the actual number of direct-
22 care nurses present during the shift.
23 Section 6. Section 808(a) of the act, amended December 18,
24 1992 (P.L.1602, No.179), is amended to read:
25 Section 808. Issuance of license.
26 (a) Standards.--The department shall issue a license to a
27 health care provider when it is satisfied that the following
28 standards have been met:
29 (1) that the health care provider is a responsible
30 person;
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1 (2) that the place to be used as a health care facility
2 is adequately constructed, equipped, maintained and operated
3 to safely and efficiently render the services offered;
4 (3) that the health care facility provides safe and
5 efficient services which are adequate for the care, treatment
6 and comfort of the patients or residents of such facility;
7 (4) that there is substantial compliance with the rules
8 and regulations adopted by the department pursuant to this
9 act; [and]
10 (5) that a certificate of need has been issued if one is
11 necessary[.]; and
12 (6) that in the case of a health care facility required
13 to have a staffing plan under section 806(h), the facility
14 has submitted a documented staffing plan and is operating in
15 compliance with the requirements of this chapter and in
16 applicable regulations.
17 * * *
18 Section 7. Section 810 of the act is amended by adding a
19 subsection to read:
20 Section 810. Reliance on accrediting agencies and Federal
21 Government.
22 * * *
23 (d) Delegation prohibited.--This section shall not be
24 construed to permit the department to delegate any of its
25 functions with respect to the staffing requirements of this
26 chapter.
27 Section 8. Section 815(c) of the act, added July 12, 1980
28 (P.L.655, No.136), is amended to read:
29 Section 815. Effect of departmental orders.
30 * * *
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1 (c) Medical assistance payments.--Orders of the department,
2 to the extent that they are sustained by the board, which fail
3 to renew a license or which suspend or revoke a license, shall
4 likewise revoke or suspend certification of the facility as a
5 medical assistance provider, and no medical assistance payment
6 for services rendered subsequent to the final order shall be
7 made during the pendency of an appeal for the period of
8 revocation or suspension without an order of supersedeas by the
9 appellate court. Any health care facility that falsifies or
10 causes to be falsified documentation required by this act shall
11 be prohibited from receiving any medical assistance payment for
12 a period of six months subsequent to the final order of
13 violation.
14 Section 9. Section 817(b) of the act, amended December 18,
15 1992 (P.L.1602, No.179), is amended and the section is amended
16 by adding subsections to read:
17 Section 817. Actions against violations of law, rules and
18 regulations.
19 * * *
20 (b) Civil penalty.--
21 (1) Any person, regardless of whether such person is a
22 licensee, who has committed a violation of any of the
23 provisions of this chapter or of any rule or regulation
24 issued pursuant thereto, including failure to correct a
25 serious licensure violation (as defined by regulation) within
26 the time specified in a deficiency citation, may be assessed
27 a civil penalty by an order of the department of up to $500
28 for each deficiency for each day that each deficiency
29 continues[.], provided that a health care facility required
30 to have a staffing plan under section 806(h) that fails to
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1 comply with the requirements of section 806.2(c) and
2 reporting requirements of this act may be assessed a civil
3 penalty by an order of the department of up to $10,000 for
4 each day of noncompliance. Civil penalties shall be collected
5 from the date the facility receives notice of the violation
6 until the department confirms correction of such violation.
7 (2) Any personal or health care facility that fails to
8 report or falsifies information, or coerces, threatens,
9 intimidates or otherwise influences another person to fail to
10 report or to falsify information required to be reported
11 under this chapter, may be assessed a penalty of up to
12 $10,000 for each such incident.
13 * * *
14 (e) Discharge or discrimination.--No person shall discharge,
15 discriminate or in any manner retaliate against any employee
16 because such employee has filed any complaint or instituted or
17 caused to be instituted any proceeding under or related to this
18 act or has testified or is about to testify in any such
19 proceeding or because of the exercise by such employee on behalf
20 of himself or others of any right afforded by this act.
21 (f) Private right of action.--Any health care facility other
22 than an extended care facility which violates the rights of an
23 employee set forth in subsection (e) or under an adopted work
24 assignment policy under section 806.3 may be held liable to such
25 employee in an action brought in a court of competent
26 jurisdiction for such legal or equitable relief as may be
27 appropriate to effectuate the purposes of this act, including,
28 but not limited to, reinstatement, promotion, lost wages and
29 benefits, and compensatory and consequential damages resulting
30 from the violations together with an equal amount in liquidated
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1 damages. The court in such action shall, in addition to any
2 judgment awarded to the plaintiffs, award reasonable attorney
3 fees and costs of action to be paid by the defendants. The
4 employee's right to institute a private action is not limited by
5 any other rights granted under this act.
6 Section 10. The act is amended by adding a section to read:
7 Section 902.2. Nurse recruitment.
8 (a) Nurse recruitment grant program.--
9 (1) The department shall award grants as provided herein
10 to increase nursing education opportunities.
11 (2) Eligible entities to whom grants may be provided
12 include the following: a health care facility, a labor
13 organization representing registered nurses in this
14 Commonwealth, or an approved nursing education program for
15 the preparation of professional registered nurses in
16 accordance with the requirements of the professional nursing
17 law.
18 (3) Grants shall be available to:
19 (i) Support outreach programs at elementary and
20 secondary schools that inform guidance counselors and
21 students of education opportunities regarding nursing.
22 (ii) Create demonstration programs to provide
23 mentors for high school students designed to encourage
24 them to enter a career in professional nursing.
25 (iii) Provide scholarships and/or tuition
26 reimbursement to Pennsylvania residents from diverse
27 racial and ethnic backgrounds who want to become
28 registered nurses. To be eligible for a scholarship or
29 tuition reimbursement, students shall meet designated
30 academic criteria and be accepted into an approved
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1 nursing program. Scholarships and/or tuition
2 reimbursement may be conditioned on a commitment of paid
3 service up to three years. Preference for scholarships
4 shall be given to students who are from under-represented
5 ethnic and minority backgrounds or who are otherwise
6 under-represented in the profession of nursing. Students
7 who are awarded the scholarships owe the hospital three
8 years of service at full pay or else face a penalty of
9 treble the scholarship amount plus interest.
10 (b) Career ladder grant program.--
11 (1) The department shall award grants to health care
12 facilities to assist in creating career ladder programs that
13 will encourage employees to obtain the education required to
14 become registered nurses. In making such awards, preference
15 shall be given to health care facilities that have active
16 labor management cooperative programs.
17 (2) Grants provided under this subsection shall be used
18 to cover costs incurred by employees of the health care
19 facility who enroll in an approved program to become
20 registered nurses, including tuition costs, work release time
21 and dependent care costs.
22 (c) Nursing facility loan program.--The department shall
23 establish and implement a grant program designed to encourage
24 health care facilities to loan professional nursing staff to
25 serve as faculty at approved nursing schools and/or nursing
26 education programs.
27 Section 11. This act shall take effect as follows:
28 (1) The addition of section 902.2 of the act shall take
29 effect in 90 days.
30 (2) The remainder of this act shall take effect in one
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1 year.
B24L35JLW/20030H0489B0583 - 19 -