Senate Bill sb2230

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    Florida Senate - 2002                                  SB 2230

    By Senator Meek





    36-1442-02

  1                      A bill to be entitled

  2         An act relating to health care facilities;

  3         providing a short title; providing legislative

  4         findings with respect to standards for staffing

  5         health care facilities and intensive care units

  6         in order to ensure the safety of patients;

  7         providing staffing requirements for health care

  8         facilities licensed under ch. 395, F.S.;

  9         requiring that each facility subject to the act

10         submit a staffing plan to the Agency for Health

11         Care Administration; providing requirements for

12         the plan; specifying nurse-to-patient ratios;

13         specifying circumstances under which a

14         direct-care nurse may refuse a work assignment;

15         requiring each health care facility to adopt a

16         work-assignment policy; prohibiting a facility

17         from penalizing or retaliating against an

18         employee who reports certain violations or

19         participates in investigations or proceedings;

20         providing that an employee may obtain legal or

21         equitable relief against a health care facility

22         for certain violations of the act; providing

23         for attorney's fees and costs; requiring health

24         care facilities to post a notice of the

25         requirements of the act and the daily staffing

26         levels of the facility; authorizing the Agency

27         for Health Care Administration to adopt rules

28         with respect to enforcement of staffing

29         requirements; authorizing the agency to revoke

30         the license of a facility in violation of the

31         act; providing for fines for certain

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    Florida Senate - 2002                                  SB 2230
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  1         violations; providing for the agency to require

  2         that a facility take corrective action;

  3         providing for additional sanctions against a

  4         facility that fails to take corrective action;

  5         providing that certain violations of the act

  6         are a third-degree misdemeanor; providing for a

  7         facility to be terminated from the Medicaid

  8         program following a violation of the act;

  9         providing an effective date.

10

11  Be It Enacted by the Legislature of the State of Florida:

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13         Section 1.  Short title.--This act may be cited as the

14  "Safe Staffing for Intensive Care and Life-Preserving

15  Monitored Care."

16         Section 2.  Legislative findings.--The Legislature

17  finds that:

18         (1)  The state has a substantial interest in assuring

19  that the delivery of health care services to patients in

20  health care facilities located within this state is adequate

21  and safe and that health care facilities retain sufficient

22  nursing staff in intensive care units and other situations in

23  which continuous cardiac monitors are used in order to ensure

24  an adequate response to life-threatening incidents.

25         (2)  Recent changes in our health-care-delivery system

26  are resulting in a higher acuity level among patients in

27  health care facilities.

28         (3)  Inadequate hospital staffing results in dangerous

29  medical errors and patient infections and in intensive care

30  units and other situations in which cardiac monitors are used,

31  an inadequate number of nursing personnel results in death.

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  1         (4)  To ensure the adequate protection and care for

  2  patients in health care facilities it is essential that

  3  qualified licensed and adequately trained registered nurses be

  4  accessible and available to meet the nursing needs of

  5  patients, particularly in intensive care units and other

  6  situations in which cardiac monitors are used.

  7         Section 3.  Facility staffing standards.--

  8         (1)  As a condition of licensing, each health care

  9  facility licensed under chapter 395, Florida Statutes, shall

10  annually submit to the Agency for Health Care Administration a

11  documented staffing plan, together with a written

12  certification that the staffing plan is sufficient to provide

13  adequate and appropriate delivery of health care services to

14  patients for the ensuing year. The staffing plan must:

15         (a)  Meet the minimum requirements set forth in

16  subsection (2);

17         (b)  Be adequate to meet any additional requirements

18  provided by other laws or rules;

19         (c)  Employ and identify an approved acuity system for

20  addressing fluctuations in actual patient acuity levels and

21  nursing-care requirements requiring increased staffing levels

22  above the minimums set forth in the plan;

23         (d)  Factor in other unit or department activity, such

24  as discharges, transfers, and admissions of patients and

25  administrative and support tasks, which is expected to be done

26  by direct-care nurses and is in addition to direct nursing

27  care;

28         (e)  Identify the assessment tool used to validate the

29  acuity system relied on in the plan;

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  1         (f)  Identify the system that will be used to document

  2  actual staffing on a daily basis within each department or

  3  unit;

  4         (g)  Include a written assessment of the accuracy of

  5  the prior year's staffing plan in light of actual staffing

  6  needs;

  7         (h)  Identify each nurse-staff classification

  8  referenced in the plan, together with a statement setting

  9  forth minimum qualifications for each such classification; and

10         (i)  Be developed in consultation with the direct-care

11  nursing staff within each department or unit or, if such staff

12  is represented, with the applicable recognized or certified

13  collective bargaining representative of the direct-care

14  nursing staff.

15         (2)(a)  The health care facility's staffing plan must

16  incorporate, at a minimum, the following direct-care

17  registered nurse-to-patient ratios:

18         1.  One registered nurse to one patient - operating

19  rooms and trauma or emergency units;

20         2.  One registered nurse to two patients - all

21  intensive care units and critical care areas in which patients

22  are at serious risk of immediate loss of life or loss of a

23  major bodily function, including emergency critical care,

24  labor and delivery units, and postanesthesia units;

25         3.  One nurse to three patients - step-down units from

26  intensive care units in which continuous cardiac monitoring is

27  used to ensure immediate response to life-threatening

28  incidents and telemetry units; and

29         4.  One nurse to four patients - any other units in

30  which continuous cardiac monitoring is used to ensure

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  1  immediate response to life-threatening incidents, including

  2  intermediate-care nursery and medical or surgical floors.

  3         Section 4.  Employee rights.--

  4         (1)(a)  As a condition of licensure, each health care

  5  facility shall adopt and disseminate to direct-care nursing

  6  staff a written policy that complies with paragraphs (b) and

  7  (c) and that details the circumstances under which a

  8  direct-care nurse may refuse a work assignment.

  9         (b)  At a minimum, the work-assignment policy must

10  permit a direct-care nurse to refuse an assignment for which:

11         1.  The nurse is not prepared by education, training,

12  or experience to safely fulfill the assignment without

13  compromising or jeopardizing patient safety, the nurse's

14  ability to meet forseeable patient needs, or the nurse's

15  license;

16         2.  The nurse has volunteered to work overtime but

17  determines that his or her level of fatigue or decreased

18  alertness would compromise or jeopardize patient safety, the

19  nurse's ability to meet foreseeable patient needs, or the

20  nurse's license; or

21         3.  The assignment would otherwise violate requirements

22  set forth in this act.

23         (c)  At a minimum, the work-assignment policy must

24  provide:

25         1.  Reasonable requirements for prior notice to the

26  nurse's supervisor regarding the nurse's request and

27  supporting reasons for being relieved of the assignment or

28  continued duty.

29         2.  Where feasible, an opportunity for the supervisor

30  to review the specific conditions supporting the nurse's

31  request, and to decide whether to remedy the conditions, to

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  1  relieve the nurse of the assignment, or to deny the nurse's

  2  request to be relieved of the assignment or continued duty.

  3         3.  A process that permits the nurse to exercise the

  4  right to refuse the assignment or continued on-duty status

  5  when the supervisor denies the request to be relieved if:

  6         a.  The supervisor rejects the request without

  7  proposing a remedy or the proposed remedy would be inadequate

  8  or untimely;

  9         b.  A complaint and investigation process with a

10  regulatory agency would be untimely to address the concern;

11  and

12         c.  The employee in good faith believes that the

13  assignment meets conditions that justify the refusal.

14         (2)(a)  A health care facility may not penalize,

15  discriminate, or retaliate in any manner against an employee

16  with respect to compensation, terms, conditions, or privileges

17  of employment, who, in good faith, individually or in

18  conjunction with another person or persons:

19         1.  Reports a violation or suspected violation of this

20  act to a public regulatory agency, a private accreditation

21  body, or management personnel of the health care facility;

22         2.  Initiates, cooperates, or otherwise participates in

23  an investigation or proceeding brought by a regulatory agency

24  or private accreditation body concerning matters covered by

25  this act;

26         3.  Informs or discusses with other employees,

27  representatives of employees, patients, patient

28  representatives, or the public violations or suspected

29  violations of this act; or

30         4.  Otherwise avails himself or herself of the rights

31  set forth in this act.

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  1         (b)  For purposes of this section, an employee is

  2  deemed to have acted in good faith if the employee reasonably

  3  believes:

  4         1.  That the information reported or disclosed is true;

  5  and

  6         2.  That a violation has occurred or may occur.

  7         Section 5.  Private right of action.--

  8         (1)  A health care facility that violates section 2 or

  9  section 3 may be held liable to the employee affected in an

10  action brought in a court of competent jurisdiction for such

11  legal or equitable relief as is appropriate to effectuate the

12  purposes of this act, including, but not limited to,

13  reinstatement, promotion, lost wages and benefits, and

14  compensatory and consequential damages resulting from the

15  violation, together with an equal amount in liquidated

16  damages. The court in such action shall, in addition to any

17  judgment awarded to the plaintiff, award reasonable attorney's

18  fees and costs of action to be paid by the defendant.

19         (2)  The employee's right to institute a private action

20  under this section is not limited by any other rights granted

21  under this act.

22         Section 6.  Enforcement.--

23         (1)(a)1.  Each health care facility must post in a

24  conspicuous place that is readily accessible to the general

25  public, a notice prepared by the Agency for Health Care

26  Administration setting forth in summary form the mandatory

27  provisions of this act.

28         2.  The mandatory and actual nurse staffing levels in

29  each nursing department or unit must be posted daily in a

30  conspicuous place that is readily accessible to the public.

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  1         (b)1.  Each health care facility must make copies of

  2  its staffing plan filed with the Agency for Health Care

  3  Administration available to the public upon request.

  4         2.  Each nursing department or unit within a facility

  5  must post or otherwise make readily available to the nursing

  6  staff, during each work shift:

  7         a.  A copy of the current staffing plan for that

  8  department or unit;

  9         b.  Documentation of the number of direct-care nursing

10  staff members required to be present during the shift, based

11  on the approved adopted acuity system; and

12         c.  Documentation of the actual number of direct-care

13  nursing staff members who are present during the shift.

14         (2)(a)  The Agency for Health Care Administration shall

15  ensure general compliance with section 3, relating to staffing

16  plans and standards, and may adopt rules to administer this

17  act. At a minimum, the rules must provide for:

18         1.  Unannounced, random compliance site visits of

19  health care facilities;

20         2.  An accessible and confidential system for the

21  public and nursing staff to report a health facility's failure

22  to comply with the requirements of the act;

23         3.  A systematic means for investigating and correcting

24  violations of the act;

25         4.  Public access to information regarding reports of

26  inspections, results, deficiencies, and corrections; and

27         5.  Imposing the penalties for violations of the

28  staffing requirements of this act.

29         (b)  The Agency for Health Care Administration has

30  jurisdiction to ensure compliance with this act and to

31  administer rules necessary to carry out this function.

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  1         (3)(a)  If the Agency for Health Care Administration

  2  determines that a health care facility has violated this act,

  3  the agency may revoke the facility's license as provided under

  4  section 395.003, Florida Statutes.

  5         (b)1.  A health care facility that violates any

  6  staffing requirements set forth in section 3 shall be punished

  7  by a fine of not less than $15,000 per violation for each day

  8  that the violation occurs or continues.

  9         2.  A health care facility that fails to post a notice

10  required under this act is subject to a fine of $1,000 per day

11  for each day that the required notice is not posted.

12         3.  A person or health care facility that fails to

13  report or falsifies information or that coerces, threatens,

14  intimidates, or otherwise influences another person to fail to

15  report or to falsify information required to be reported under

16  this act is subject to a fine of up to $15,000 for each such

17  incident.

18         (c)1.  Upon investigation, the Agency for Health Care

19  Administration shall notify the health care facility of all

20  deficiencies in its compliance with this act and the rules

21  adopted under this act. The notice may include an order to

22  take corrective action within a time specific, including, but

23  not limited to:

24         a.  Revising the facility staffing plan;

25         b.  Reducing the number of patients within a nursing

26  department or unit;

27         c.  Temporarily closing a nursing department or unit to

28  any further patient admissions until corrections are made; or

29         d.  Temporarily transferring patients to another

30  nursing department or unit within the facility until

31  corrections are made.

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  1         2.  The agency may issue an order of correction:

  2         a.  On an emergency basis, without prior notice or

  3  opportunity for a hearing, if the investigation shows that

  4  patient care is being compromised in a manner that poses an

  5  immediate jeopardy to the health or safety of patients.

  6         b.  In accordance with chapter 395, Florida Statutes.

  7         3.  The order of correction must be in writing and

  8  contain a statement of the reasons for the order.

  9         4.  Upon the failure of a health care facility to

10  comply with an order of correction in a timely manner, the

11  Agency for Health Care Administration may take any action it

12  deems appropriate, including, but not limited to:

13         a.  Appointing an administrative overseer for the

14  health care facility;

15         b.  Closing the health care facility or a department or

16  unit within the facility to patient admissions;

17         c.  Placing the health care facility's emergency room

18  on bypass status; or

19         d.  Revoking the health care facility's license.

20         (4)  Any person who willfully violates this act in a

21  manner that evidences a pattern or practice of violations and

22  that is likely to have serious and adverse impact on patient

23  care or the potential for serious injury or death for patients

24  or employees commits a misdemeanor of the first degree,

25  punishable as provided in section 775.082 or section 775.083,

26  Florida Statutes.

27         (5)(a)  A determination that a health care facility has

28  violated this act shall result in an order of reimbursement to

29  the Medicaid program or in termination from participation in

30  the Medicaid program for a period of time determined by the

31  Agency for Health Care Administration.

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  1         (b)  Any health care facility that falsifies or causes

  2  to be falsified documentation required by this act may not

  3  receive any Medicaid reimbursement for 6 months.

  4         Section 7.  This act shall take effect October 1, 2002.

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  7                          SENATE SUMMARY

  8    Creates an act entitled "Safe Staffing for Intensive Care
      and Life-Preserving Monitored Care." Requires that health
  9    care facilities licensed under ch. 395, F.S., maintain
      specified ratios of nurses to patients. Requires that
10    each facility report its staffing levels to the Agency
      for Health Care Administration and make the information
11    available to the public. Provides that an employee may
      seek legal and equitable relief against a health care
12    facility for certain violations. Requires that the Agency
      for Health Care Administration adopt rules to enforce and
13    administer the act. (See bill for details.)

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