THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY LEACH, FERLO, FONTANA, HUGHES, WASHINGTON, FARNESE AND BOSCOLA, APRIL 3, 2009

REFERRED TO PUBLIC HEALTH AND WELFARE, APRIL 3, 2009  

AN ACT

Amending the act of July 19, 1979 (P.L.130, No.48), entitled "An

act relating to health care; prescribing the powers and

duties of the Department of Health; establishing and

providing the powers and duties of the State Health

Coordinating Council, health systems agencies and Health Care

Policy Board in the Department of Health, and State Health

Facility Hearing Board in the Department of Justice;

providing for certification of need of health care providers

and prescribing penalties," providing for hospital patient

protection.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The act of July 19, 1979 (P.L.130, No.48), known

as the Health Care Facilities Act, is amended by adding a

chapter to read:

CHAPTER 8-A

HOSPITAL PATIENT PROTECTION

Section 831-A.  Scope of chapter.

This chapter provides for hospital patient protection.

Section 832-A.  Purpose.

The General Assembly finds that:

(1)  Health care services are becoming more complex, and

it is increasingly difficult for patients to access

integrated services.

(2)  Competent, safe, therapeutic and effective patient

care is jeopardized because of staffing changes implemented

in response to market-driven managed care.

(3)  To ensure effective protection of patients in acute

care settings, it is essential that qualified direct care

registered nurses be accessible and available to meet the

individual needs of patients at all times.

(4)  To ensure the health and welfare of Pennsylvania

citizens, mandatory hospital direct care professional nursing

practice standards and professional practice protections must

be established to assure that hospital nursing care is

provided in the exclusive interests of patients.

(5)  Direct care registered nurses have a fiduciary duty

to assigned patients and necessary duty and right of patient

advocacy and collective patient advocacy to satisfy

professional fiduciary obligations.

(6)  The basic principles of staffing in hospital

settings should be based on the individual patient’s care

needs, the severity of the condition, services needed and the

complexity surrounding those services.

(7)  Current unsafe hospital direct care registered nurse

staffing practices have resulted in adverse patient outcome.

(8)  Mandating adoption of uniform, minimum, numerical

and specific registered nurse-to-patient staffing ratios by

licensed hospital facilities is necessary for competent,

safe, therapeutic and effective professional nursing care and

for retention and recruitment of qualified direct care

registered nurses.

(9)  Direct care registered nurses must be able to

advocate for their patients without fear of retaliation from

their employer.

(10)  Whistleblower protections that encourage registered

nurses and patients to notify government and private

accreditation entities of suspected unsafe patient

conditions, including protection against retaliation for

refusing unsafe patient care assignments by competent

registered nurse staff, will greatly enhance the health,

welfare and safety of patients.

Section 833-A.  Definitions.

The following words and phrases when used in this chapter

shall have the meaning given to them in this section unless the

context clearly indicates otherwise:

"Acuity-based patient classification system" or "system."  A

standardized set of criteria based on scientific data that acts

as a measurement instrument used to predict registered nursing

care requirements for individual patients based on:

(1)  The severity of patient illness.

(2)  The need for specialized equipment and technology.

(3)  The intensity of required nursing interventions.

(4)  The complexity of clinical nursing judgment required

to design, implement and evaluate the patient's nursing care

plan consistent with professional standards.

(5)  The ability for self-care, including motor, sensory

and cognitive deficits.

(6)  The need for advocacy intervention.

(7)  The licensure of the personnel required for care.

(8)  The patient care delivery system.

(9)  The unit's geographic layout.

(10)  Generally accepted standards of nursing practice,

as well as elements reflective of the unique nature of the

acute care hospital’s patient population.

The system determines the additional number of direct care

registered nurses and other licensed and unlicensed nursing

staff the hospital must assign, based on the independent

professional judgment of the direct care registered nurse, to

meet the individual patient needs at all times.

"Artificial life support."  A system that uses medical

technology to aid, support or replace a vital function of the

body that has been seriously damaged.

"Clinical judgment."  The application of a direct care

registered nurse’s knowledge, skill, expertise and experience in

making independent decisions about patient care.

"Clinical supervision."  The assignment and direction of

patient care tasks required in the implementation of nursing

care for a patient to other licensed nursing staff or to

unlicensed staff by a direct care registered nurse in the

exclusive interests of the patient.

"Competence."  The current documented, demonstrated and

validated ability of a direct care registered nurse to act and

integrate the knowledge, skills, abilities and independent

professional judgment that underpin safe, therapeutic and

effective patient care and which ability is based on the

satisfactory performance of:

(1)  The statutorily recognized duties and

responsibilities of the registered nurses as provided under

the laws of this Commonwealth.

(2)  The standards required under this chapter which are

specific to each hospital unit.

"Critical access hospital."  A health facility designated

under a Medicare rural hospital flexibility program established

by the Commonwealth and as defined in section 1861(mm) of the

Social Security Act (49 Stat. 620, 42 U.S.C. § 1395x(mm)).

"Critical care unit" or "intensive care unit."  A nursing

unit of an acute care hospital that is established to safeguard

and protect patients whose severity of medical conditions

require continuous monitoring and complex interventions by

direct care registered nurses and whose restorative measures

require complex monitoring, intensive intricate assessment,

evaluation, specialized rapid intervention and the education and

teaching of the patient, the patient’s family or other

representatives by a competent and experienced direct care

registered nurse. The term includes an intensive care unit, a

burn center, a coronary care unit or an acute respiratory unit.

"Direct care registered nurse" or "direct care professional

nurse."  A registered nurse who:

(1)  Is currently licensed by the Pennsylvania Board of

Nursing to engage in professional nursing with documented

clinical competence as defined in the act of May 22, 1951

(P.L. 317, No. 69), known as The Professional Nursing Law.

(2)  Has accepted a direct, hands-on patient care

assignment to implement medical and nursing regimens and

provide related clinical supervision of patient care while

exercising independent professional judgment at all times in

the interests of a patient.

"Hospital."  An entity located in this Commonwealth that is

licensed as a hospital under this act. The term includes a

critical access and long-term acute care hospital.

"Hospital unit" or "clinical patient care area."  An

intensive care or critical care unit, a burn unit, a labor and

delivery room, antepartum and postpartum, a newborn nursery, a

post-anesthesia service area, an emergency department, an

operating room, a pediatric unit, a step-down or intermediate

care unit, a specialty care unit, a telemetry unit, a general

medical/surgical care unit, a psychiatric unit, a rehabilitation

unit or a skilled nursing facility unit.

"Long-term acute care hospital."  A hospital or health care

facility that specializes in providing acute care to medically

complex patients with an anticipated length of stay of more than

25 days. The term includes a free-standing and a hospital-

within-hospital model of a long-term acute care facility.

"Medical/surgical unit."  A unit that:

(1)  Is established to safeguard and protect patients

whose severity of illness, including all comorbidities,

restorative measures and level of nursing intensity requires

continuous care through direct observation by a direct care

registered nurse, monitoring, multiple assessments,

specialized interventions, evaluations and the education or

teaching of a patient’s family or other representatives by a

competent and experienced direct care registered nurse.

(2)  May include patients requiring less than intensive

care or step-down care and patients receiving 24-hour

inpatient general medical care, post-surgical care or both.

(3)  May include mixed patient populations of diverse

diagnoses and diverse age groups, excluding pediatric

patients.

"Patient assessment."  The direct care utilization by a

registered nurse of critical thinking, which is the

intellectually disciplined process of actively and skillfully

interpreting, applying, analyzing, synthesizing and evaluating

data obtained through the registered nurse's direct care, direct

observation and communication with others.

"Professional judgment."  The educated, informed and

experienced process that a direct care registered nurse

exercises in forming an opinion and reaching a clinical

decision, in a patient’s best interest, based upon analysis of

data, information and scientific evidence.

"Rehabilitation unit."  A functional clinical unit for the

provision of those rehabilitation services that restore an ill

or injured patient to the highest level of self-sufficiency or

gainful employment of which the patient is capable in the

shortest possible time, compatible with the patient's physical,

intellectual and emotional or psychological capabilities and in

accordance with planned goals and objectives.

"Skilled nursing facility."  A functional clinical unit that:

(1)  Provides skilled nursing care and supportive care to

patients whose primary need is for the availability of

skilled nursing care on a long-term basis and who are

admitted after at least a 48-hour period of continuous

inpatient care.

(2)  Provides at least the following: medical, nursing,

dietary, pharmaceutical services and an activity program.

"Specialty care unit." A unit that:

(1)  Is established to safeguard and protect patients

whose severity of illness, including all comorbidities,

restorative measures and level of nursing intensity requires

continuous care through direct observation by a direct care

registered nurse, monitoring, multiple assessments,

specialized interventions, evaluations and the education and

teaching of a patient’s family or other representatives by a

competent and experienced direct care registered nurse.

(2)  Provides intensity of care for a specific medical

condition or a specific patient population.

(3)  Is more comprehensive for the specific condition or

disease process than that which is required on a

medical/surgical unit and is not otherwise covered by the

definitions in this section.

"Step-down unit."  A unit established:

(1)  To safeguard and protect patients whose severity of

illness, including all comorbidities, restorative measures

and level of nursing intensity requires intermediate

intensive care through direct observation by the direct care

registered nurse, monitoring, multiple assessments,

specialized interventions, evaluations and the education and

teaching of the patient’s family or other representatives by

a competent and experienced direct care registered nurse.

(2)  To provide care to patients with moderate or

potentially severe physiologic instability requiring

technical support but not necessarily artificial life

support.

"Technical support."  Specialized equipment and direct care

registered nurses providing for invasive monitoring, telemetry

and mechanical ventilation for the immediate amelioration or

remediation of severe pathology for those patients requiring

less care than intensive care, but more care than that which is

required from medical/surgical care.

"Telemetry unit."  A unit that:

(1) Is established to safeguard and protect patients

whose severity of illness, including all comorbidities,

restorative measures and level of nursing intensity requires

intermediate intensive care through direct observation by a

direct registered nurse, monitoring, multiple assessments,

specialized interventions, evaluations and the education and

teaching of a patient’s family or other representatives by a

competent and experienced direct care registered nurse.

(2)  Is designated for the electronic monitoring,

recording, retrieval and display of cardiac electrical

signals.

Section 834-A.  Hospital nursing practice standard.

(a)  Professional obligation and right.--By virtue of their

professional license and ethical obligations, all registered

nurses have a duty and right to act and provide care in the

exclusive interests of a patient and to act as the patient’s

advocate, as circumstances require, in accordance with the

provision described in section 836-A.

(b)  Acceptance of patient care assignments.--

(1)  A direct care registered nurse shall provide

competent, safe, therapeutic and effective nursing care to

assigned patients.

(2)  As a condition of licensure, a health care facility

shall adopt, disseminate to direct care nurses and comply

with a written policy that details the circumstances under

which a direct care nurse may refuse a work assignment.

(3)  At a minimum, the policy shall permit a direct care

nurse to refuse a patient assignment for which:

(i)  the nurse does not have the necessary knowledge,

judgment, skills and ability to provide the required care

without compromising or jeopardizing the patient's

safety, the nurse’s ability to meet foreseeable patient

needs or the nurse’s license; and

(ii) the assignment otherwise would violate

requirements under this chapter.

(4)  At a minimum, the policy shall permit a direct care

nurse to assess an order initiated by a physician or legally

authorized health care professional before implementation to

determine if the order is:

(i)  in the best interests of the patient;

(ii)  initiated by a person legally authorized to

issue the order; and

(iii)  in accordance with applicable law and

regulation governing nursing care.

(5)  At a minimum, the work assignment policy shall

contain procedures for the following:

(i)  Reasonable requirements for prior notice to the

nurse’s supervisor regarding the nurse’s request and

supporting reasons for being relieved of the assignment,

continued duty or implementation of an order.

(ii)  Where feasible, an opportunity for the

supervisor to review the specific conditions supporting

the nurse’s request and to decide whether to:

(A)  remedy the conditions;

(B)  to relieve the nurse of the assignment or

order; or

(C)  deny the nurse’s request to be relieved of

the assignment, continued duty or implementation of

an order.

(iii)  A process that permits the nurse to exercise

the right to refuse the assignment, continued on-duty

status or implementation of an order when the supervisor

denies the request to be relieved if:

(A)  The supervisor rejects the request without

proposing a remedy or the proposed remedy would be

inadequate or untimely.

(B)  The complaint and investigation process with

a regulatory agency would be untimely to address

concern.

(C)  The employee, in good faith, believes that

the assignment or implementation of an order meets

conditions justifying refusal.

(iv)  A nurse who refuses an assignment or

implementation of an order under a work assignment policy

established in this section shall not be deemed, by

reason thereof, to have engaged in negligent or

incompetent action, patient abandonment or otherwise to

have violated applicable nursing law.

Section 835-A. Professional duty and right of patient advocacy.

A registered nurse has the professional obligation, and

therefore the right, to act as a patient’s advocate as

circumstances require by:

(2)  initiating action to improve health care or to

change decisions or activities which in the professional

judgment of the direct care registered nurse are against the

interests or wishes of the patient; or

(3)  giving the patient the opportunity to make informed

decisions about health care before it is provided.

Section 836-A.  Free speech.

(a)  Prohibition against discharge or retaliation for

whistleblowing.--A hospital or other health care facility shall

not discharge from duty or otherwise retaliate against a direct

care registered nurse or other health care professional

responsible for patient care who reports unsafe practices or

violation of policy, regulation, rule or law.

(b)  Rights guaranteed as essential to effective patient

advocacy.--

(1)  A direct care registered nurse or other health care

professional or worker responsible for patient care in a

hospital shall enjoy the right of free speech and shall be

protected in the exercise of that right as provided in this

section, both during working hours and during off-duty hours.

(2)  The right of free speech protected by this section

is a necessary incident of the professional nurse duty of

patient advocacy and is essential to protecting the health

and safety of hospital patients and of the people of this

Commonwealth.

(c)  Protected speech.--

(1)  The "free speech" protected by this section

includes, without limitation, any type of spoken, gestured,

written, printed or electronically communicated expression

concerning any matter related to or affecting competent,

safe, therapeutic and effective nursing care by direct care

registered nurses or other health care professionals and

workers at the hospital facility, at facilities within large

health delivery systems or corporate chains which include the

hospital, or more generally within the health care industry.

(2)  The content of speech protected by this section

includes, without limitation, the facts and circumstances of

particular events, patient care practices, institutional

actions, policies or conditions which may facilitate or

impede competent, safe, therapeutic and effective nursing

practice and patient care, adverse patient outcomes or

incidents, sentinel and reportable events and arguments in

support of or against hospital policies or practices relating

to the delivery of nursing care.

(3)  Protected speech under this section includes the

reporting, internally, externally or publicly, of actions,

conduct, events, practices or other matters that are believed

to constitute:

(i)  a violation of Federal, State or local laws or

regulations;

(ii)  a breach of applicable codes of professional

ethics, including the professional and ethical

obligations of direct care registered nurses;

(iii)  matters which, in the independent judgment of

the reporting direct care registered nurse, are

appropriate or required for disclosure in furtherance and

support of the nurse’s exercise of patient advocacy

duties to improve health care or change decisions or

activities which, in the professional judgment of the

direct care registered nurse, are against the interests

or wishes of the patient or to ensure that the patient is

afforded a meaningful opportunity to make informed

decisions about health care before it is provided; or

(iv)  concern matters as described in subparagraph

(iii) made in aid and support of the exercise of patient

advocacy duties of direct care registered nurse

colleagues.

(d)  Nondisclosure of confidential information.--Nothing in

this section shall be construed to authorize disclosure of

private and confidential patient information except where such

disclosure is:

(1)  required by law;

(2)  compelled by proper legal process;

(3)  consented to by the patient; or

(4)  provided in confidence to regulatory or

accreditation agencies or other government entities for

investigatory purposes or under formal or informal complaints

of unlawful or improper practices for purposes of achieving

corrective and remedial action.

(e)   Duty of patient advocacy.--Engaging in free speech

activity as described in this section constitutes an exercise of

the direct care registered nurse's duty and right of patient

advocacy. The subject matter of free speech activity as

described in this section is presumed to be a matter of public

concern, and the disclosures protected under this section are

presumed to be in the public interest.

Section 837-A.  Protected rights.

(a) General rule.--Any person shall have the right to:

(1)    Oppose policies, practices or actions of any

hospital or other medical facility that are alleged to

violate, breach or fail to comply with any provision of this

chapter;

(2)    Cooperate, provide evidence, testify or otherwise

support or participate in any investigation or complaint

proceeding under sections 845-A and 846-A.

(b)  Right to file complaint.--

(1)  A patient of a hospital or other medical facility

aggrieved by the hospital's or facility's interference with

the full and free exercise of patient advocacy duties by a

direct care registered nurse shall have the right to make or

file a complaint, cooperate, provide evidence, testify or

otherwise support or participate in any investigation or

complaint proceeding under sections 845-A and 846-A.

(2)  A direct care registered nurse of a hospital or

other medical facility aggrieved by the hospital's or

facility's interference with the full and free exercise of

patient advocacy duties shall have the right to make or file

a complaint, cooperate, provide evidence, testify or

otherwise support or participate in any investigation or

complaint proceeding under sections 845-A and 846-A.

Section 838-A.  Interference with rights and duties of free

speech and patient advocacy prohibited.

No hospital or other medical facility employer or its agents

may:

(1)  interfere with, restrain, coerce, intimidate or deny

the exercise of or the attempt to exercise, by any person of

any right provided or protected under this chapter; or

(2)  discriminate or retaliate against any person for

opposing any policy, practice or action of the hospital or

other medical facility which is alleged to violate, breach or

fail to comply with any provisions of this chapter.

Section 839-A.  No retaliation or discrimination for protected

actions.

No hospital or other medical facility employer may

discriminate or retaliate in any manner against any patient,

employee or contract employee of the hospital or other medical

facility or any other person because that person has:

(1)  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; or

(2)  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.

Section 840-A.  Direct care registered nurse-to-patient staffing

ratios.

(a)  General requirements.--A hospital shall provide minimum

staffing by direct care registered nurses in accordance with the

general requirements of this subsection and the clinical unit or

clinical patient care area direct care registered nurse-to-

patient ratios specified in subsection (b). Staffing for patient

care tasks not requiring a direct care registered nurse is not

included within these ratios and shall be determined under an

acuity-based patient classification system, this section and

section 841-A. The requirements are as follows:

(1)  No hospital may assign a direct care registered

nurse to a nursing unit or clinical area unless that hospital

and the direct care registered nurse determine that the

direct care registered nurse has demonstrated and validated

current competence in providing care in that area and has

also received orientation to that hospital's clinical area

sufficient to provide competent, safe, therapeutic and

effective care to patients in that area. The policies and

procedures of the hospital shall contain the hospital's

criteria for making this determination.

(2)  (i)  Direct care registered nurse-to-patient ratios

represent the maximum number of patients that shall be

assigned to one direct care registered nurse at all

times.

(ii)  For purposes of this paragraph, "assigned"

means the direct care registered nurse has responsibility

for the provision of care to a particular patient within

the direct care registered nurse's validated competency.

(3)  There shall be no averaging of the number of

patients and the total number of direct care registered

nurses on the unit during any one shift nor over any period

of time.

(4)  Only direct care registered nurses providing direct

patient care shall be included in the ratios. Nurse

administrators, nurse supervisors, nurse managers, charge

nurses and case managers shall not be included in the

calculation of the direct care registered nurse-to-patient

ratio. Only direct care registered nurses shall relieve other

direct care registered nurses during breaks, meals and other

routine, expected absences from the unit.

(5)  Only direct care registered nurses shall be assigned

to intensive care newborn nursery service units, which

specifically require one direct care registered nurse to two

or fewer infants at all times.

(6)  In the emergency department, only direct care

registered nurses shall be assigned to triage patients, and

only direct care registered nurses shall be assigned to

critical trauma patients.

(b)  Unit or patient care areas.--

(1)  The minimum staffing ratios for general, acute,

critical access and specialty hospitals are established in

this subsection for direct care registered nurses as follows:

(i)  The direct care registered nurse-to-patient

ratio in an intensive care unit shall be 1:2 or fewer at

all times.

(ii)  The direct care registered nurse-to-patient

ratio for a critical care unit shall be 1:2 or fewer at

all times.

(iii)  The direct care registered nurse-to-patient

ratio for a neonatal intensive care unit shall be 1:2 or

fewer at all times.

(iv)   The direct care registered nurse-to-patient

ratio for a burn unit shall be 1:2 or fewer at all times.

(v)  The direct care registered nurse-to-patient

ratio for a step-down, intermediate care unit shall be

1:3 or fewer at all times.

(vi)  An operating room shall have at least one

direct care registered nurse assigned to the duties of

the circulating registered nurse and a minimum of one

additional person as a scrub assistant for each patient-

occupied operating room.

(vii)  The direct care registered nurse-to-patient

ratio in the postanesthesia recovery unit of an

anesthesia service shall be 1:2 or fewer at all times,

regardless of the type of anesthesia the patient

received.

(viii)  The direct care registered nurse-to-patient

ratio for patients receiving conscious sedation shall be

1:1 at all times.

(ix)  (A)  The direct care registered nurse-to-

patient ratio for an emergency department shall be

1:4 or fewer at all times.

(B)  The direct care registered nurse-to-patient

ratio for critical care patients in the emergency

department shall be 1:2 or fewer at all times.

(C)  Only direct care registered nurses shall be

assigned to critical trauma patients in the emergency

department, and a minimum direct care registered

nurse-to-critical trauma patient ratio of 1:1 shall

be maintained at all times.

(D)  In an emergency department, triage, radio or

specialty/flight, registered nurses do not count in

the calculation of direct care registered nurse-to-

patient ratio.

(x)  (A)  The direct care registered nurse-to-patient

ratio in the labor and delivery suite of prenatal

services shall be 1:1 at all times for active labor

patients and patients with medical or obstetrical

complications.

(B)  The direct care registered nurse-to-patient

ratio shall be 1:1 at all times for initiating

epidural anesthesia and circulation for cesarean

delivery.

(C)  The direct care registered nurse-to-patient

ratio for patients in immediate postpartum shall be

1:2 or fewer at all times.

(xi)  (A)  The direct care registered nurse-to-

patient ratio for antepartum patients who are not in

active labor shall be 1:3 or fewer at all times.

(B)  The direct care registered nurse-to-patient

ratio for patients in a postpartum area of the

prenatal service shall be 1:3 mother-baby couplets or

fewer at all times.

(C)  In the event of cesarean delivery, the total

number of mothers plus infants assigned to a single

direct care registered nurse shall never exceed four.

(D)  In the event of multiple births, the total

number of mothers plus infants assigned to a single

direct care registered nurse shall not exceed six.

(E)  For postpartum areas in which the direct

care registered nurse’s assignment consists of

mothers only, the direct care registered nurse-to-

patient ratio shall be 1:4 or fewer at all times.

(F)  The direct care registered nurse-to-patient

ratio for postpartum women or postsurgical

gynecological patients shall be 1:4 or fewer at all

times.

(G)  Well baby nursery direct care registered

nurse ratio shall be 1:5 or fewer at all times.

(H)  The direct care registered nurse-to-patient

ratio for unstable newborns and those in the

resuscitation period as assessed by the direct care

registered nurse shall be 1:1 at all times.

(I)  The direct care registered nurse-to-patient

ratio for recently born infants shall be 1:4 or fewer

at all times.

(xii)  The direct care registered nurse-to-patient

ratio for pediatrics shall be 1:3 or fewer at all times.

(xiii)  The direct care registered nurse-to-patient

ratio in telemetry shall be 1:3 or fewer at all times.

(xiv)  (A)  The direct care registered nurse-to-

patient ratio in medical/surgical shall be 1:4 or

fewer at all times.

(B)  The direct care registered nurse-to-patient

ratios for presurgical and admissions units or

ambulatory surgical units shall be 1:4 or fewer at

all times.

(xv)  The direct care registered nurse-to-patient

ratio in other specialty units shall be 1:4 or fewer at

all times.

(xvi)  The direct care registered nurse-to-patient

ratio in psychiatric units shall be 1:4 or fewer at all

times.

(xvii)  The direct care registered nurse-to-patient

ratio in a rehabilitation unit or a skilled nursing

facility shall be 1:5 or fewer at all times.

(c)   Additional conditions.--

(1)  Identifying a unit or clinical patient care area by

a name or term other than those defined in section 833-A does

not affect the requirement to staff at the direct care

registered nurse-to-patient ratios identified for the level

of intensity or type of care described in section 833-A and

this section.

(2)  (i)  Patients shall only be cared for on units or

clinical patient care areas where the level of intensity,

type of care and direct care registered nurse-to-patients

ratios meet the individual requirements and needs of each

patient.

(ii)  The use of patient acuity-adjustable units or

clinical patient care areas is prohibited.

(3)  Video cameras or monitors or any form of electronic

visualization of a patient shall not be deemed a substitute

for the direct observation required for patient assessment by

the direct care registered nurse and for patient protection

required by an attendant or sitter.

Section 841-A.  Hospital unit staffing plans.

(a)  Acuity-based patient classification system.--

(1)  In addition to the direct care registered nurse

ratio requirements of subsection (b), a hospital shall assign

additional nursing staff, such as licensed practical nurses

and certified nursing assistants, through the implementation

of a valid acuity-based patient classification system for

determining nursing care needs of individual patients that

reflects the assessment made by the assigned direct care

registered nurse of patient nursing care requirements and

provides for shift-by-shift staffing based on those

requirements.

(2)  The ratios specified in subsection (b) shall

constitute the minimum number of registered nurses who shall

be assigned to direct patient care. Additional registered

nursing staff in excess of the prescribed ratios shall be

assigned to direct patient care in accordance with the

hospital's implementation of a valid system for determining

nursing care requirements.

(3)  Based on the direct care registered nurse assessment

as reflected in the implementation of a valid system and

independent direct care registered nurse determination of

patient care needs, additional licensed and nonlicensed staff

shall be assigned.

(b)  Development of written staffing plan.--

(1)  A written staffing plan shall be developed by the

chief nursing officer or a designee, based on individual

patient care needs determined by the system. The staffing

plan shall be developed and implemented for each patient care

unit and shall specify individual patient care requirements

and the staffing levels for direct care registered nurses and

other licensed and unlicensed personnel.

(2)  In no case shall the staffing level for direct care

registered nurses on any shifts fall below the requirements

of this subsection.

(3)  The plan shall include the following:

(i)  Staffing requirements as determined by the

system for each unit, documented and posted on the unit

for public view on a day-to-day, shift-by-shift basis.

(ii)  The actual staff and staff mix provided,

documented and posted on the unit for public view on a

day-to-day, shift-by-shift basis.

(iii)  The variance between required and actual

staffing patterns, documented and posted on the unit for

public view on a day-to-day, shift-by-shift basis.

(c)  Recordkeeping.--In addition to the documentation

required in subsection (b), the hospital shall keep a record of

the actual direct care registered nurse, licensed practical

nurse and certified nursing assistant assignments to individual

patients by licensure category, documented on a day-to-day,

shift-by-shift basis. The hospital shall retain:

(1)  The staffing plan required in subsection (b) for a

period of two years.

(2)  The record of the actual direct care registered

nurse, licensed practical nurse and certified nursing

assistant assignments by licensure and nonlicensure category.

(d)  Review committee to conduct annual review of system.--

The reliability of the system for validating staffing

requirements shall be reviewed at least annually by a committee

to determine whether the system accurately measures individual

patient care needs and completely predicts direct care

registered nurse, licensed practical nurse and certified nursing

assistant staffing requirements based exclusively on individual

patient needs.

(e)  Review committee membership.--

(1)  At least half of the members of the review committee

shall be unit-specific, competent direct care registered

nurses who provide direct patient care.

(2)  The members of the committee shall be appointed by

the chief nurse officer, except where direct care registered

nurses are represented for collective bargaining purposes,

all direct care registered nurses on the committee shall be

appointed by the authorized collective bargaining agent.

(3)  In case of a dispute, the direct care registered

nurse assessment shall prevail.

(f)  Time period for adjustments.--If the review committee

determines that adjustments are necessary in order to assure

accuracy in measuring patient care needs, the adjustments shall

be implemented within 30 days of that determination.

(g)  Process for staff input.--A hospital shall develop and

document a process by which all interested staff may provide

input about the system's required revisions and the overall

staffing plan.

(h)  Limitation on administrator of nursing services.--The

administrator of nursing services may not be designated to serve

as a charge nurse or to have direct patient care responsibility.

(i)  Minimum requirement for each shift.--Each patient care

unit shall have at least one direct care registered nurse

assigned, present and responsible for the patient care in the

unit on each shift.

(j)  Temporary nursing agencies.--

(1)  Nursing personnel from temporary nursing agencies

may not be responsible for patient care on any clinical unit

without having demonstrated and validated clinical competency

on the assigned unit.

(2)  A hospital that utilizes temporary nursing agencies

shall have and adhere to a written procedure to orient and

evaluate personnel from these sources. In order to ensure

clinical competence of temporary agency personnel, the

procedures shall require that personnel from temporary

nursing agencies be evaluated as often, or more often, than

staff employed directly by the hospital.

(k)  Planning for routine fluctuations.--

(1)  A hospital shall plan for routine fluctuations, such

as admissions, discharges and transfers in patient census.

(2)  If a health care emergency causes a change in the

number of patients on a unit, the hospital shall demonstrate

that immediate and diligent efforts were made to maintain

required staffing levels.

(3)  For purposes of this subsection, a "health care"

emergency is defined as an emergency declared by the Federal

Government or the head of a State, local, county or municipal

government.

Section 842-A.  Minimum requirements for hospital systems.

(a)  General rule.--A hospital shall:

(1)  Adopt an acuity-based patient classification system,

including a written nursing care staffing plan for each

patient care unit.

(2)  Implement, evaluate and modify the plan as necessary

and appropriate under the provisions of this section.

(3)  Provide direct care nurse staffing based on

individual patient need determined in accordance with the

requirements of this section.

(4)  Use the system to determine additional direct care

registered nursing staffing above the minimum staffing ratios

required by subsection (b) and any staffing by licensed

practical nurses or unlicensed nursing personnel.

(b)  Required elements.--The system used by a hospital for

determining patient nursing care needs shall include, but not be

limited to, the following elements:

(1)  A method to predict nursing care requirements of

individual patient assessments and as determined by direct

care registered nurse assessments of individual patients.

(2)  A method that provides for sufficient direct care

registered nursing staffing to ensure that all of the

elements in this subsection are performed in the planning and

delivery of care for each patient: assessment, nursing

diagnosis, planning and intervention.

(3)  An established method by which the amount of nursing

care needed for each category of patient is validated.

(4)  A method for validation of the reliability of the

system.

(c)  Transparency of system.--

(1)  A system shall be fully transparent in all respects,

including:

(i)  Disclosure of detailed documentation of the

methodology used by the system to predict nursing

staffing.

(ii)  Identification of each factor, assumption and

value used in applying the methodology.

(iii)  An explanation of the scientific and empirical

basis for each such assumption and value and

certification by a knowledgeable and authorized

representative of the hospital that the aforementioned

disclosures regarding methods used for testing and

validating the accuracy and reliability of the system are

true and complete.

(2)  A hospital shall include in the documentation

required by this section an evaluation and a report on at

least an annual basis, which evaluation and report shall be

conducted and prepared by a committee consisting exclusively

of direct care registered nurses who have provided direct

patient care in the units covered by the system. Where direct

care registered nurses are represented for collective

bargaining purposes, all direct care registered nurses on the

committee shall be appointed by the authorized collective

bargaining agent.

(d)  Submission to Department of Health.--

(1)  The documentation required by this section shall be

submitted in its entirety to the Department of Health as a

mandatory condition of hospital licensure, with a

certification by the chief nurse officer for the hospital

that it completely and accurately reflects implementation of

a valid system used to determine nursing service staffing by

the hospital for every shift on every clinical unit in which

patients reside and receive care.

(2)  The certification shall be executed by the chief

nurse officer under penalty of perjury and shall contain an

express acknowledgment that any false statement in the

certification shall constitute fraud and be subject to

criminal and civil prosecution and penalties under the

antifraud provisions applicable to false claims for

government funds or benefits.

(3)  The documentation shall be available for public

inspection in its entirety in accordance with procedures

established by appropriate administrative regulation

consistent with the purposes of this chapter.

Section 843-A.  Prohibited activities.

The following activities are prohibited:

(1)  A hospital shall not directly assign any unlicensed

personnel to perform registered nurse functions in lieu of

care delivered by a licensed registered nurse and shall not

assign unlicensed personnel to perform registered nurse

functions under the clinical supervision of a direct care

registered nurse.

(2)  Unlicensed personnel may not perform tasks that

require the clinical assessment, judgment and skill of a

licensed registered nurse, including, without limitation:

(i)  Nursing activities that require nursing

assessment and judgment during implementation.

(ii)  Physical, psychological and social assessments

that require nursing judgment, intervention, referral or

follow-up.

(iii)  Formulation of a plan of nursing care and

evaluation of the patient's response to the care

provided.

(iv)  Administration of medication, venipuncture or

intravenous therapy, parenteral or tube feedings,

invasive procedures, including inserting nasogastric

tubes, inserting catheters or tracheal suctioning.

(v)  Educating patients and their families concerning

the patient’s health care problems, including

postdischarge care.

(c)  Mandatory overtime.--A hospital shall not impose

mandatory overtime requirements to meet the staffing ratios

imposed in section 840-A.

Section 844-A.  Fines and civil penalties.

The following fines and penalties shall apply to violations

of this chapter:

(1)  A hospital found to have violated or aided and

abetted section 841-A, 842-A or 843-A shall be subject, in

addition to any other penalties that may be prescribed by

law, to a civil penalty of not more than $25,000 for each

violation and an additional $10,000 per nursing unit shift

until the violation is corrected.

(2)  A hospital employer found to have violated or

interfered with any of the rights or protections provided and

guaranteed under sections 836-A, 837-A, 838-A, 839-A and

840-A shall be subject to a civil penalty of not more than

$25,000 for each such violation or occurrence of prohibited

conduct.

(3)  Any hospital management, nursing service or medical

personnel found to have violated or interfered with any of

the rights or protections provided and guaranteed under

sections 836-A, 837-A, 838-A, 839-A and 840-A shall be

subject to a civil penalty of not more than $20,000 for each

such violation or occurrence of prohibited conduct.

Section 845-A.  Private right of action.

(a)  General rule.--A health care facility that violates the

rights of an employee specified in sections 835-A, 836-A, 837-A,

838-A and 839-A may be held liable to the employee in an action

brought in a court of competent jurisdiction for such legal or

equitable relief as may be appropriate to effectuate the

purposes of this chapter, including, but not limited to,

reinstatement, promotion, lost wages and benefits and

compensatory and consequential damages resulting from the

violations together with an equal amount in liquidated damages.

The court in the action shall, in addition to any judgment

awarded to the plaintiffs, award reasonable attorney fees and

costs of action to be paid by the defendants. The employee's

right to institute a privation action is not limited by any

other rights granted under this chapter.

(b)  Relief for nurses.--In addition to the amount recovered

under subsection (d), a nurse whose employment is suspended or

terminated in violation of this section is entitled to:

(1)  Reinstatement in the nurse's former position or

severance pay in an amount equal to three months of the

nurse's most recent salary.

(2)  Compensation for wages lost during the period of

suspension or termination.

(3)  An award of reasonable attorney fees and costs as

the prevailing party.

Section 846-A.  Enforcement procedure.

(a)  Period of limitations.--

(1)  Except as otherwise provided in paragraph (2), in 

the case of any action brought for a willful violation of the

applicable provisions of this chapter, the action must be

brought within three years of the date of the last event

constituting the alleged violation for which such action is

brought.

(2)  An action must be brought under section 845-A no

later than two years after the date of the last event

constituting the alleged violation for which the action is

brought.

(b)  Posting requirements.--A hospital and other medical

facility shall post the following provisions of this chapter in

a prominent place for review by the public and the employees.

The posting shall have a title across the top in no less than 35

point, bold typeface stating the following: "RIGHTS OF

REGISTERED NURSES AS PATIENT ADVOCATES, EMPLOYEES AND PATIENTS."

Section 2.  This act shall take effect in 60 days.