Florida Senate - 2012                                    SB 1466
       
       
       
       By Senator Braynon
       
       
       
       
       33-01010-12                                           20121466__
    1                        A bill to be entitled                      
    2         An act relating to health care; creating the “Florida
    3         Hospital Patient Protection Act”; providing
    4         legislative findings; providing definitions; providing
    5         minimum staffing level requirements for the ratio of
    6         direct care registered nurses to patients in a health
    7         care facility; requiring that each health care
    8         facility implement a staffing plan; prohibiting the
    9         imposition of mandatory overtime and certain other
   10         actions by a health care facility; specifying the
   11         required nurse-to-patient ratios for each type of care
   12         provided; prohibiting the use of video cameras or
   13         monitors by a health care facility as a substitute for
   14         the required level of care; requiring that the chief
   15         nursing officer of a health care facility prepare a
   16         written staffing plan that meets the staffing levels
   17         required by the act; requiring that a health care
   18         facility annually evaluate its actual staffing levels
   19         and update the staffing plan based on the evaluation;
   20         requiring that certain documentation be submitted to
   21         the Agency for Health Care Administration and made
   22         available for public inspection; requiring that the
   23         agency develop uniform standards for use by health
   24         care facilities in establishing nurse staffing
   25         requirements; providing requirements for the committee
   26         members who are appointed to develop the uniform
   27         standards; requiring health care facilities to
   28         annually report certain information to the agency and
   29         post a notice containing such information in each unit
   30         of the facility; prohibiting a health care facility
   31         from assigning unlicensed personnel to perform
   32         functions or tasks that are performed by a licensed or
   33         registered nurse; specifying those actions that
   34         constitute professional practice by a direct care
   35         registered nurse; requiring that patient assessment be
   36         performed only by a direct care registered nurse;
   37         authorizing a direct care registered nurse to assign
   38         certain specified activities to other licensed or
   39         unlicensed nursing staff; prohibiting a health care
   40         facility from deploying technology that limits certain
   41         care provided by a direct care registered nurse;
   42         providing that it is a duty and right of a direct care
   43         registered nurse to act as the patient’s advocate;
   44         providing certain requirements with respect to such
   45         duty; authorizing a direct care registered nurse to
   46         refuse to perform certain activities if he or she
   47         determines that it is not in the best interests of the
   48         patient; providing that a direct care registered nurse
   49         may refuse to accept an assignment under certain
   50         circumstances; prohibiting a health care facility from
   51         discharging, discriminating, or retaliating against a
   52         nurse based on such refusal; providing that a direct
   53         care registered nurse has a right of action against a
   54         health care facility that violates certain provisions
   55         of the act; requiring that the Agency for Health Care
   56         Administration establish a toll-free telephone hotline
   57         to provide information and to receive reports of
   58         violations of the act; requiring that certain
   59         information be provided to each patient who is
   60         admitted to a health care facility; prohibiting a
   61         health care facility from interfering with the right
   62         of nurses to organize or bargain collectively;
   63         authorizing the agency to impose fines for violations
   64         of the act; requiring that the agency post in its
   65         website information regarding health care facilities
   66         that have violated the act; providing an effective
   67         date.
   68  
   69  Be It Enacted by the Legislature of the State of Florida:
   70  
   71         Section 1. Short title.—Sections 1 through 8 of this act
   72  may be cited as the “Florida Hospital Patient Protection Act.”
   73         Section 2. Legislative findings.—The Legislature finds
   74  that:
   75         (1) The state has a substantial interest in ensuring that,
   76  in the delivery of health care services to patients, health care
   77  facilities retain sufficient nursing staff so as to promote
   78  optimal health care outcomes.
   79         (2) Health care services are becoming more complex and it
   80  is increasingly difficult for patients to access integrated
   81  services. Competent, safe, therapeutic, and effective patient
   82  care is jeopardized because of staffing changes implemented in
   83  response to market-driven managed care. To ensure effective
   84  protection of patients in acute care settings, it is essential
   85  that qualified direct care registered nurses be accessible and
   86  available to meet the individual needs of the patient at all
   87  times. In order to ensure the health and welfare of state
   88  residents and to ensure that hospital nursing care is provided
   89  in the exclusive interests of patients, mandatory practice
   90  standards and professional practice protections for professional
   91  direct care registered nursing staff must be established. Direct
   92  care registered nurses have a fiduciary duty to care for
   93  assigned patients and a necessary duty of individual and
   94  collective patient advocacy in order to satisfy professional
   95  fiduciary obligations.
   96         (3) The basic principles of staffing in hospital settings
   97  should be based on the care needs of the individual patient, the
   98  severity of the patient’s condition, the services needed, and
   99  the complexity surrounding those services. Current unsafe
  100  practices by hospital direct care registered nursing staff have
  101  resulted in adverse patient outcomes. Mandating the adoption of
  102  uniform, minimum, numerical, and specific registered nurse-to
  103  patient staffing ratios by licensed hospital facilities is
  104  necessary for competent, safe, therapeutic, and effective
  105  professional nursing care and for the retention and recruitment
  106  of qualified direct care registered nurses.
  107         (4) Direct care registered nurses must be able to advocate
  108  for their patients without fear of retaliation from their
  109  employer. Whistle-blower protections that encourage registered
  110  nurses and patients to notify governmental and private
  111  accreditation entities of suspected unsafe patient conditions,
  112  including protection against retaliation for refusing unsafe
  113  patient care assignments, will greatly enhance the health,
  114  welfare, and safety of patients.
  115         (5) Direct care registered nurses have an irrevocable duty
  116  and right to advocate on behalf of their patients’ interests,
  117  and this duty and right may not be encumbered by cost-saving
  118  schemes.
  119         Section 3. Definitions.—As used in sections 1 through 8 of
  120  this act, the term:
  121         (1) “Acuity-based patient classification system,” “acuity
  122  system,” or “patient classification system” means an established
  123  measurement tool that:
  124         (a) Predicts registered nursing care requirements for
  125  individual patients based on the severity of patient illness,
  126  the need for specialized equipment and technology, the intensity
  127  of required nursing interventions, and the complexity of
  128  clinical nursing judgment required to design, implement, and
  129  evaluate the patient’s nursing care plan consistent with
  130  professional standards, the ability for self-care, including
  131  motor, sensory, and cognitive deficits, and the need for
  132  advocacy intervention;
  133         (b) Details the amount of nursing care needed and the
  134  additional number of direct care registered nurses and other
  135  licensed and unlicensed nursing staff that the hospital must
  136  assign, based on the independent professional judgment of the
  137  direct care registered nurse, in order to meet the individual
  138  patient needs at all times; and
  139         (c) Is stated in terms that can be readily used and
  140  understood by direct care nursing staff.
  141         (2) “Agency” means the Agency for Health Care
  142  Administration.
  143         (3) “Ancillary support staff” means the personnel assigned
  144  to assist in providing nursing services in the delivery of safe,
  145  therapeutic, and effective patient care, including unit or ward
  146  clerks and secretaries, clinical technicians, respiratory
  147  therapists, and radiology, laboratory, housekeeping, and dietary
  148  personnel.
  149         (4) “Clinical judgment” means the application of the direct
  150  care registered nurse’s knowledge, skill, expertise, and
  151  experience in making independent decisions about patient care.
  152         (5) “Clinical supervision” means the assignment and
  153  direction of patient care tasks required in the implementation
  154  of nursing care for patients to other licensed nursing staff or
  155  to unlicensed staff by a direct care registered nurse in the
  156  exclusive interests of the patients.
  157         (6) “Competence” means the ability of the direct care
  158  registered nurse to act and integrate the knowledge, skills,
  159  abilities, and independent professional judgment that underpin
  160  safe, therapeutic, and effective patient care. Current
  161  documented, demonstrated, and validated competency is required
  162  for all direct care registered nurses and must be determined
  163  based on the satisfactory performance of:
  164         (a) The statutorily recognized duties and responsibilities
  165  of the registered nurses, as set forth in chapter 464, Florida
  166  Statutes, and rules adopted thereunder; and
  167         (b) The standards required under sections 4 and 5 of this
  168  act, which are specific to each hospital unit.
  169         (7) “Declared state of emergency” means an officially
  170  designated state of emergency that has been declared by a
  171  federal, state, or local government official who has the
  172  authority to declare the state of emergency. The term does not
  173  include a state of emergency that results from a labor dispute
  174  in the health care industry.
  175         (8) “Direct care registered nurse” means a licensed nurse
  176  who has documented clinical competence and who has accepted a
  177  direct, hands-on patient care assignment to implement medical
  178  and nursing regimens and provide related clinical supervision of
  179  patient care while exercising independent professional judgment
  180  at all times in the exclusive interest of the patient.
  181         (9) “Health care facility” means an acute care hospital; an
  182  emergency care, ambulatory, or outpatient surgery facility
  183  licensed under chapter 395, Florida Statutes; or a psychiatric
  184  facility licensed under chapter 394, Florida Statutes, including
  185  a critical access and long-term acute care hospital.
  186         (10) “Hospital unit” or “clinical patient care area” means
  187  an intensive care or critical care unit, burn unit, labor and
  188  delivery room, antepartum and postpartum unit, newborn nursery,
  189  postanesthesia service area, emergency department, operating
  190  room, pediatric unit, step-down or intermediate care unit,
  191  specialty care unit, telemetry unit, general medical or surgical
  192  care unit, psychiatric unit, rehabilitation unit, or skilled
  193  nursing facility unit, and as further defined in this
  194  subsection.
  195         (a) “Critical care unit” or “intensive care unit” means a
  196  nursing unit of an acute care hospital which is established to
  197  safeguard and protect patients whose severity of medical
  198  conditions require continuous monitoring and complex
  199  interventions by direct care registered nurses and whose
  200  restorative measures and level of nursing intensity requires
  201  intensive care through direct observation by the direct care
  202  registered nurse, complex monitoring, intensive intricate
  203  assessment, evaluation, specialized rapid intervention, and
  204  education or teaching of the patient, the patient’s family, or
  205  other representatives by a competent and experienced direct care
  206  registered nurse. The term includes an intensive care unit, a
  207  burn center, a coronary care unit, or an acute respiratory unit.
  208         (b) “Step-down unit” or “intermediate intensive care unit”
  209  means a unit established to safeguard and protect patients whose
  210  severity of illness, including all co-occurring morbidities,
  211  restorative measures, and level of nursing intensity, requires
  212  intermediate intensive care through direct observation by the
  213  direct care registered nurse, monitoring, multiple assessments,
  214  specialized interventions, evaluations, and education or
  215  teaching of the patient’s family or other representatives by a
  216  competent and experienced direct care registered nurse. The term
  217  includes units established to provide care to patients who have
  218  moderate or potentially severe physiologic instability requiring
  219  technical support but not necessarily artificial life support.
  220  “Artificial life support” means a system that uses medical
  221  technology to aid, support, or replace a vital function of the
  222  body that has been seriously damaged. “Technical support” means
  223  the use of specialized equipment by direct care registered
  224  nurses in providing for invasive monitoring, telemetry, and
  225  mechanical ventilation for the immediate amelioration or
  226  remediation of severe pathology for those patients requiring
  227  less care than intensive care, but more than that which is
  228  required from medical or surgical care.
  229         (c) “Medical or surgical unit” means a unit established to
  230  safeguard and protect patients whose severity of illness,
  231  including all co-occurring morbidities, restorative measures,
  232  and level of nursing intensity requires continuous care through
  233  direct observation by the direct care registered nurse,
  234  monitoring, multiple assessments, specialized interventions,
  235  evaluations, and education or teaching of the patient’s family
  236  or other representatives by a competent and experienced direct
  237  care registered nurse. These units may include patients
  238  requiring less than intensive care or step-down care; patients
  239  receiving 24-hour inpatient general medical care, post-surgical
  240  care, or both general medical and post-surgical care; and mixed
  241  patient populations of diverse diagnoses and diverse age groups,
  242  but excluding pediatric patients.
  243         (d) “Telemetry unit” means a unit that is established to
  244  safeguard and protect patients whose severity of illness,
  245  including all co-occurring morbidities, restorative measures,
  246  and level of nursing intensity, requires intermediate intensive
  247  care through direct observation by the direct care registered
  248  nurse, monitoring, multiple assessments, specialized
  249  interventions, evaluations, and education or teaching of the
  250  patient’s family or other representatives by a competent and
  251  experienced direct care registered nurse. A telemetry unit
  252  includes the equipment used to provide for the electronic
  253  monitoring, recording, retrieval, and display of cardiac
  254  electrical signals.
  255         (e) “Specialty care unit” means a unit that is established
  256  to safeguard and protect patients whose severity of illness,
  257  including all co-occurring morbidities, restorative measures,
  258  and level of nursing intensity, requires continuous care through
  259  direct observation by the direct care registered nurse,
  260  monitoring, multiple assessments, specialized interventions,
  261  evaluations, and education or teaching of the patient’s family
  262  or other representatives by a competent and experienced direct
  263  care registered nurse. The term includes a unit established to
  264  provide the intensity of care required for a specific medical
  265  condition or a specific patient population or to provide more
  266  comprehensive care for a specific condition or disease process
  267  than that which is required on medical or surgical units, and
  268  includes those units not otherwise covered by the definitions in
  269  this section.
  270         (f) “Rehabilitation unit” means a functional clinical unit
  271  for the provision of those rehabilitation services that restore
  272  an ill or injured patient to the highest level of self
  273  sufficiency or gainful employment of which he or she is capable
  274  in the shortest possible time, compatible with the patient’s
  275  physical, intellectual, and emotional or psychological
  276  capabilities, and in accord with planned goals and objectives.
  277         (g) “Skilled nursing facility” means a functional clinical
  278  unit for the provision of skilled nursing care and supportive
  279  care to patients whose primary need is for the availability of
  280  skilled nursing care on a long-term basis and who are admitted
  281  after at least a 48-hour period of continuous inpatient care.
  282  The term includes, but need not be limited to, medical, nursing,
  283  dietary, and pharmaceutical services and activity programs.
  284         (11) “Licensed nurse” means a registered nurse or a
  285  licensed practical nurse, as defined in s. 464.003, Florida
  286  Statutes, who is licensed by the Board of Nursing to engage in
  287  the practice of professional nursing or the practice of
  288  practical nursing, as defined in s. 464.003, Florida Statutes.
  289         (12) “Long-term acute care hospital” means any hospital or
  290  health care facility that specializes in providing long-term
  291  acute care to medically complex patients. The term includes
  292  freestanding and hospital-within-hospital models of long-term
  293  acute care facilities.
  294         (13) “Overtime” means the hours worked in excess of:
  295         (a) An agreed-upon, predetermined, regularly scheduled
  296  shift;
  297         (b) Twelve hours in a 24-hour period; or
  298         (c) Eighty hours in a consecutive 14-day period.
  299         (14) “Patient assessment” means the use of critical
  300  thinking by a direct care licensed nurse and is the
  301  intellectually disciplined process of actively and skillfully
  302  interpreting, applying, analyzing, synthesizing, or evaluating
  303  data obtained through the direct observation and communication
  304  with others.
  305         (15) “Professional judgment” means the intellectual,
  306  educated, informed, and experienced process that the direct care
  307  registered nurse exercises in forming an opinion and reaching a
  308  clinical decision that is in the patient’s best interest and is
  309  based upon analysis of data, information, and scientific
  310  evidence.
  311         (16) “Skill mix” means the differences in licensing,
  312  specialty, and experience among direct care registered nurses.
  313         (17) “Staffing level” means the actual numerical registered
  314  nurse-to-patient ratio within a nursing department, unit, or
  315  clinical patient care area.
  316         Section 4. Minimum direct care registered nurse-to-patient
  317  staffing requirements.—
  318         (1) Each health care facility shall implement a staffing
  319  plan that provides for minimum staffing by direct care
  320  registered nurses in accordance with the general requirements
  321  set forth in this section and the clinical unit direct care
  322  registered nurse-to-patient ratios specified in subsection (2).
  323  Staffing for patient care tasks not requiring a direct care
  324  registered nurse is not included within these ratios and shall
  325  be determined pursuant to an acuity-based patient classification
  326  system defined by agency rule.
  327         (a) A health care facility may not assign a direct care
  328  registered nurse to a nursing unit or clinical area unless that
  329  health care facility and the direct care registered nurse
  330  determine that she or he has demonstrated and validated current
  331  competence in providing care in that area and has also received
  332  orientation to that clinical area which is sufficient to provide
  333  competent, safe, therapeutic, and effective care to patients in
  334  that area. The policies and procedures of the health care
  335  facility must contain the criteria for making this
  336  determination.
  337         (b) Direct care registered nurse-to-patient ratios
  338  represent the maximum number of patients that shall be assigned
  339  to one direct care registered nurse at all times.
  340         (c) “Assigned” means the direct care registered nurse has
  341  responsibility for the provision of care to a particular patient
  342  within her or his validated competency.
  343         (d)1. A health care facility may not average the number of
  344  patients and the total number of direct care registered nurses
  345  assigned to patients in a clinical unit during any one shift or
  346  over any period of time for purposes of meeting the requirements
  347  under this section.
  348         2. A health care facility may not impose mandatory overtime
  349  requirements in order to meet the hospital unit direct care
  350  registered nurse-to-patient ratios required under this section.
  351         3. A health care facility shall ensure that only a direct
  352  care registered nurse may relieve another direct care registered
  353  nurse during breaks, meals, and routine absences from a clinical
  354  unit.
  355         4. A health care facility may not impose layoffs of
  356  licensed practical nurses, licensed psychiatric technicians,
  357  certified nursing assistants, or other ancillary support staff
  358  in order to meet the clinical unit direct care registered nurse
  359  to-patient ratios required in this section.
  360         (e) Only direct care registered nurses shall be assigned to
  361  intensive care newborn nursery service units, which specifically
  362  require one direct care registered nurse to two or fewer infants
  363  at all times.
  364         (f) Only direct care registered nurses shall be assigned to
  365  triage patients and only direct care registered nurses shall be
  366  assigned to critical trauma patients.
  367         1. The direct care registered nurse-to-patient ratio for
  368  critical care patients in the emergency department shall be 1 to
  369  2 or fewer at all times.
  370         2. No fewer than two direct care registered nurses must be
  371  physically present in the emergency department when a patient is
  372  present.
  373         3. Triage, radio, specialty, or flight-registered nurses do
  374  not count in the calculation of direct care registered nurse-to
  375  patient ratios.
  376         4. Triage-registered nurses may not be assigned the
  377  responsibility of the base radio.
  378         (g) In the labor and delivery unit, the direct care
  379  registered nurse-to-patient ratio shall be 1 to 1 for active
  380  labor patients and patients having medical or obstetrical
  381  complications, during the initiation of epidural anesthesia, and
  382  during circulation for cesarean delivery.
  383         1. The direct care registered nurse-to-patient ratio for
  384  antepartum patients who are not in active labor shall be 1 to 3
  385  or fewer at all times.
  386         2. In the event of cesarean delivery, the total number of
  387  mothers plus infants assigned to a single direct care registered
  388  nurse may not exceed four.
  389         3. In the event of multiple births, the total number of
  390  mothers plus infants assigned to a single direct care registered
  391  nurse may not exceed six.
  392         4. For postpartum areas in which the direct care registered
  393  nurse’s assignment consists of mothers only, the direct care
  394  registered nurse-to-patient ratio shall be 1 to 4 or fewer at
  395  all times.
  396         5. The direct care registered nurse-to-patient ratio for
  397  postpartum women or postsurgical gynecological patients only
  398  shall be 1 to 4 or fewer at all times.
  399         6. The direct care registered nurse-to-patient ratio for
  400  the well-baby nursery shall be 1 to 5 at all times.
  401         7. The direct care registered nurse-to-patient ratio for
  402  unstable newborns and those in the resuscitation period as
  403  assessed by the direct care registered nurse shall be 1 to 1 at
  404  all times.
  405         8. The direct care registered nurse-to-patient ratio for
  406  recently born infants shall be 1 to 4 or fewer at all times.
  407         (h) The direct care registered nurse-to-patient ratio for
  408  patients receiving conscious sedation shall be 1 to 1 or fewer
  409  at all times.
  410         (2) A health care facility’s staffing plan shall provide
  411  that, at all times during each shift within a unit of the
  412  facility, a direct care registered nurse is assigned to not more
  413  than the following number of patients in that unit:
  414         (a) One patient in trauma emergency units.
  415         (b) One patient in operating room units. The operating room
  416  shall have at least one direct care registered nurse assigned to
  417  the duties of the circulating registered nurse and a minimum of
  418  one additional person as a scrub assistant for each patient
  419  occupied operating room.
  420         (c) Two patients in critical care units, including neonatal
  421  intensive care units, emergency critical care and intensive care
  422  units, labor and delivery units, coronary care units, acute
  423  respiratory care units, postanesthesia units regardless of the
  424  type of anesthesia received, burn units, and immediate
  425  postpartum patients, so that the direct-care registered nurse
  426  to-patient ratio is 1 to 2 at all times.
  427         (d) Three patients in the emergency room units, step-down
  428  or intermediate intensive care units, pediatrics units,
  429  telemetry units, and combined labor, delivery, and postpartum
  430  units, so that the direct care registered nurse-to-patient
  431  ratios is 1 to 3 or fewer at all times.
  432         (e) Four patients in medical-surgical units, antepartum
  433  units, intermediate care nursery units, psychiatric units, and
  434  presurgical and other specialty care units, so that the direct
  435  care registered nurse-to-patient ratio is 1 to 4 or fewer at all
  436  times.
  437         (f) Five patients in rehabilitation units and skilled
  438  nursing units, so that the direct care registered nurse-to
  439  patient ratio is 1 to 5 or fewer at all times.
  440         (g) Six patients in well-baby nursery units, so that the
  441  direct care registered nurse-to-patient ratio is 1 to 6 or fewer
  442  at all times.
  443         (h) Three couplets in postpartum units, so that the direct
  444  care registered nurse-to-patient ratio is 1 to 3 couplets or
  445  fewer at all times.
  446         (3)(a) Identifying a unit or clinical patient care area by
  447  a name or term other than those defined in section 3 of this act
  448  does not affect the requirement to provide for staff at the
  449  direct care registered nurse-to-patient ratios identified for
  450  the level of intensity or type of care described in subsections
  451  (1) and (2).
  452         (b) Patients shall be cared for only on units or clinical
  453  patient care areas where the level of intensity, type of care,
  454  and direct care registered nurse-to-patients ratios meet the
  455  individual requirements and needs of each patient. The use of
  456  patient acuity-adjustable units is strictly prohibited.
  457         (c) Video cameras or monitors or any form of electronic
  458  visualization of a patient may not be substituted for the direct
  459  observation required for patient assessment by the direct care
  460  registered nurse and for patient protection required by an
  461  attendant.
  462         (4) The requirements established under this section do not
  463  apply during a declared state of emergency if a health care
  464  facility is requested or expected to provide an exceptional
  465  level of emergency or other medical services.
  466         (5)(a) A written staffing plan shall be developed by the
  467  chief nursing officer or a designee, based on individual patient
  468  care needs determined by the patient classification system. The
  469  staffing plan shall be developed and implemented for each
  470  patient care unit and must specify individual patient care
  471  requirements and the staffing levels for direct care registered
  472  nurses and other licensed and unlicensed personnel. In no case
  473  shall the staffing level for direct care registered nurses on
  474  any shifts fall below the requirements of subsections (1) and
  475  (2).
  476         (b) In addition to the direct care registered nurse-ratio
  477  requirements of subsections (1) and (2), each health care
  478  facility shall assign additional nursing staff, such as licensed
  479  practical nurses, licensed psychiatric technicians, and
  480  certified nursing assistants, through the implementation of a
  481  valid patient classification system for determining nursing care
  482  needs of individual patients which reflects the assessment made
  483  by the assigned direct care registered nurse of patient nursing
  484  care requirements and which provides for shift-by-shift staffing
  485  based on those requirements. The ratios specified in subsections
  486  (1) and (2) constitute the minimum number of registered nurses
  487  who shall be assigned to provide direct patient care.
  488         (c) In developing the staffing plan, a health care facility
  489  shall provide for direct care registered nurse-to-patient ratios
  490  above the minimum ratios required under subsections (1) and (2)
  491  based upon consideration of the following factors:
  492         1. The number of patients and acuity level of patients as
  493  determined by the application of an acuity system on a shift-by
  494  shift basis.
  495         2. The anticipated admissions, discharges, and transfers of
  496  patients during each shift which affect direct patient care.
  497         3. Specialized experience required of direct care
  498  registered nurses on a particular unit.
  499         4. Staffing levels and services provided by other health
  500  care personnel in meeting direct patient care needs that do not
  501  require care by a direct care registered nurse.
  502         5. The efficacy of technology that is available and that
  503  affects the delivery of direct patient care.
  504         6. The level of familiarity with hospital practices,
  505  policies, and procedures by temporary agency direct care
  506  registered nurses who are assigned during a shift.
  507         7. Obstacles to efficiency in the delivery of patient care
  508  which is caused by the physical layout of the health care
  509  facility.
  510         (d) A health care facility shall specify the system used to
  511  document actual staffing in each unit for each shift.
  512         (e) A health care facility shall annually evaluate:
  513         1. The reliability of the patient classification system for
  514  validating staffing requirements in order to determine whether
  515  the system accurately measures individual patient care needs and
  516  accurately predicts the staffing requirements for direct care
  517  registered nurses, licensed practical nurses, licensed
  518  psychiatric technicians, and certified nursing assistants, based
  519  exclusively on individual patient needs.
  520         2. The validity of the acuity-based patient classification
  521  system.
  522         (f) A health care facility shall update its staffing plan
  523  and acuity system to the extent appropriate based on the annual
  524  evaluation. If the review reveals that adjustments are necessary
  525  in order to ensure accuracy in measuring patient care needs,
  526  such adjustments must be implemented within 30 days after that
  527  determination.
  528         (g)1. Any acuity-based patient classification system
  529  adopted by a health care facility under this section shall be
  530  transparent in all respects, including disclosure of detailed
  531  documentation of the methodology used to predict nursing
  532  staffing; an identification of each factor, assumption, and
  533  value used in applying such methodology; an explanation of the
  534  scientific and empirical basis for each such assumption and
  535  value; and certification by a knowledgeable and authorized
  536  representative of the health care facility that the disclosures
  537  regarding methods used for testing and validating the accuracy
  538  and reliability of the system are true and complete.
  539         2. The documentation required by this section shall be
  540  submitted in its entirety to the Agency of Health Care
  541  Administration as a mandatory condition of licensure, with a
  542  certification by the chief nurse officer for the health care
  543  facility that it completely and accurately reflects
  544  implementation of a valid acuity-based patient classification
  545  system used to determine nursing service staffing by the
  546  facility for every shift on every clinical unit in which
  547  patients reside and receive care. The certification shall be
  548  executed by the chief nurse officer under penalty of perjury and
  549  must contain an expressed acknowledgement that any false
  550  statement in the certification constitutes fraud and is subject
  551  to criminal and civil prosecution and penalties.
  552         3. Such documentation shall be available for public
  553  inspection in its entirety in accordance with procedures
  554  established by appropriate administrative rules adopted by the
  555  Agency for Health Care Administration, consistent with the
  556  purposes of this act.
  557         (h)1. A staffing plan of a health care facility shall be
  558  developed and evaluated by a committee. At least one-half of the
  559  members of the committee shall be unit-specific competent direct
  560  care registered nurses who provide direct patient care.
  561         2. The members of the committee shall be appointed by the
  562  chief nurse officer, except at a facility where direct care
  563  registered nurses are represented for collective bargaining
  564  purposes, all direct care registered nurses on the committee
  565  shall be appointed by the authorized collective bargaining
  566  agent. In case of a dispute, the direct care registered nurse
  567  assessment shall prevail. This act does not authorize conduct
  568  that is prohibited under the National Labor Relations Act or
  569  under the Federal Labor Relations Act.
  570         (i)1. By July 1, 2013, the Agency for Health Care
  571  Administration shall develop uniform statewide standards for a
  572  standardized acuity tool for use in health care facilities which
  573  provides a method for establishing nurse staffing requirements
  574  that exceed the hospital unit or clinical patient care area
  575  direct care registered nurse-to-patient ratios required under
  576  subsections (1) and (2).
  577         2. Proposed standards shall be developed by a committee
  578  composed of not more than 20 individuals, at least 11 of whom
  579  must be currently licensed registered nurses who are employed as
  580  direct care registered nurses, and the remaining 9 must include
  581  a sufficient number of technical or scientific experts in the
  582  specialized fields involved in the design and development of a
  583  patient classification system that meets the requirements of
  584  this act.
  585         3. A person who has any employment, commercial,
  586  proprietary, financial, or other personal interest in the
  587  development, marketing, or utilization of any private patient
  588  classification system product or related methodology,
  589  technology, or component system is not eligible to serve on the
  590  development committee. A candidate for appointment to the
  591  development committee may not be confirmed as a member until the
  592  individual files a disclosure-of-interest statement with the
  593  agency, along with a signed certification of full disclosure and
  594  complete accuracy under oath, which provides all necessary
  595  information as determined by the agency to demonstrate the
  596  absence of actual or potential conflict of interest. All such
  597  filings are subject to public inspection.
  598         4. Within 1 year after the official commencement of
  599  committee operations, the development committee shall provide a
  600  written report to the agency which proposes uniform standards
  601  for a valid patient classification system, along with sufficient
  602  explanation and justification to allow for competent review and
  603  determination of sufficiency by the agency. The report shall be
  604  disclosed to the public upon notice of public hearings and a
  605  public comment period for proposed adoption of uniform standards
  606  for a patient classification system by the agency.
  607         (j) Each hospital shall adopt and implement the patient
  608  classification system and provide staffing based on such tool.
  609  Any additional direct care registered nursing staffing levels
  610  that exceed the direct care registered nurse-to-patient ratios
  611  described in subsections (1) and (2) shall be assigned in a
  612  manner determined by such statewide tool.
  613         (k) A health care facility shall submit to the agency its
  614  staffing plan and annual update required under this section.
  615         (6)(a) In each unit, a health care facility shall post a
  616  uniform notice in a form specified by the agency by rule which:
  617         1. Explains the requirements imposed under this section;
  618         2. Includes actual direct care registered nurse-to-patient
  619  ratios during each shift;
  620         3. Is visible, conspicuous, and accessible to staff,
  621  patients, and the public;
  622         4. Identifies staffing requirements as determined by the
  623  patient classification system for each unit, documented and
  624  posted on the unit for public view on a day-to-day, shift-by
  625  shift basis;
  626         5. Reports the actual number of staff and the staff mix,
  627  documented and posted on the unit for public view on a day-to
  628  day, shift-by-shift basis; and
  629         6. Reports the variance between the required and actual
  630  staffing patterns, documented and posted on the unit for public
  631  view on a day-to-day, shift-by-shift basis.
  632         (b)1. Each acute care facility shall maintain accurate
  633  records of actual direct care registered nurse-to-patient ratios
  634  in each unit for each shift for at least 2 years. Such records
  635  shall include:
  636         a. The number of patients in each unit;
  637         b. The identity and duty hours of each direct care
  638  registered nurse, licensed practical nurse, licensed psychiatric
  639  technician, and certified nursing assistant assigned to each
  640  patient in each unit in each shift. The hospital shall retain
  641  the record for 2 years; and
  642         c. A copy of each posted notice.
  643         2. Each hospital shall make its records maintained under
  644  the requirements of this section available to:
  645         a. The agency;
  646         b. Registered nurses and their collective bargaining
  647  representatives, if any; and
  648         c. The public under rules adopted by the agency.
  649         (c) The agency shall conduct periodic audits to ensure:
  650         1. Implementation of the staffing plan in accordance with
  651  this section; and
  652         2. Accuracy in records maintained under this section.
  653         (7) Acute care facilities shall plan for routine
  654  fluctuations such as admissions, discharges, and transfers in
  655  the patient census. If a declared health care emergency causes a
  656  change in the number of patients on a unit, the hospital must
  657  demonstrate that immediate and diligent efforts were made to
  658  maintain required staffing levels.
  659         (8) The following activities are prohibited:
  660         (a) A health care facility may not directly assign any
  661  unlicensed personnel to perform registered-nurse functions in
  662  lieu of care being delivered by a licensed or registered nurse,
  663  and may not assign unlicensed personnel to perform registered
  664  nurse functions under the clinical supervision of a direct care
  665  registered nurse.
  666         (b) Unlicensed personnel may not perform tasks that require
  667  the clinical assessment, judgment, and skill of a licensed
  668  registered nurse, including, without limitation, nursing
  669  activities that require nursing assessment and judgment during
  670  implementation; physical, psychological, or social assessments
  671  that require nursing judgment, intervention, referral, or
  672  followup; formulation of a plan of nursing care and an
  673  evaluation of a patient’s response to the care provided,
  674  including administration of medication, venipuncture or
  675  intravenous therapy, parenteral or tube feedings, invasive
  676  procedures, including inserting nasogastric tubes, inserting
  677  catheters, or tracheal suctioning, educating patients and their
  678  families concerning the patient’s health care problems,
  679  including postdischarge care, with the exception that only
  680  phlebotomists, emergency room technicians, and medical
  681  technicians, under the general supervision of the clinical
  682  laboratory director or designee or a physician, may perform
  683  venipunctures in accordance with written hospital policies and
  684  procedures.
  685         Section 5. Professional practice standards for direct care
  686  registered nurses working in a health care facility.—
  687         (1) A direct care registered nurse, currently licensed to
  688  practice as a registered nurse, employing scientific knowledge
  689  and experience in the physical, social, and biological sciences,
  690  and exercising independent judgment in applying the nursing
  691  process, shall directly provide:
  692         (a) Continuous and ongoing assessments of the patient’s
  693  condition based upon the independent professional judgment of
  694  the direct care registered nurse.
  695         (b) The planning, clinical supervision, implementation, and
  696  evaluation of the nursing care provided to each patient.
  697         (c) The assessment, planning, implementation, and
  698  evaluation of patient education, including ongoing discharge
  699  teaching of each patient.
  700         (d) The planning and delivery of patient care, which shall
  701  reflect all elements of the nursing process and shall include
  702  assessment, nursing diagnosis, planning, intervention,
  703  evaluation, and, as circumstances require, patient advocacy, and
  704  shall be initiated by a direct care registered nurse at the time
  705  of admission.
  706         (e) The nursing plan for the patient’s care, which shall be
  707  discussed with and developed as a result of coordination with
  708  the patient, the patient’s family, or other representatives,
  709  when appropriate, and staff of other disciplines involved in the
  710  care of the patient.
  711         (f) An evaluation of the effectiveness of the care plan
  712  through assessments based on direct observation of the patient’s
  713  physical condition and behavior, signs and symptoms of illness,
  714  and reactions to treatment and through communication with the
  715  patient and the health care team members, and shall modify the
  716  plan as needed.
  717         (g) Information related to the patient’s initial assessment
  718  and reassessments, nursing diagnosis, plan, intervention,
  719  evaluation, and patient advocacy, which shall be permanently
  720  recorded in the patient’s medical record as narrative direct
  721  care progress notes. The practice of charting by exception is
  722  expressly prohibited.
  723         (2)(a) Patient assessment requires direct observation of
  724  the patient’s signs and symptoms of illness, reaction to
  725  treatment, behavior and physical condition, and interpretation
  726  of information obtained from the patient and others, including
  727  other caregivers on the health team. Assessment requires data
  728  collection by the direct care registered nurse and the analysis,
  729  synthesis, and evaluation of such data.
  730         (b) Only direct care registered nurses are authorized to
  731  perform patient assessments. A licensed practical nurse or
  732  licensed psychiatric technician may assist direct care
  733  registered nurses in data collection.
  734         (3)(a) The nursing care needs of individual patients shall
  735  be determined by a direct care registered nurse through the
  736  process of ongoing patient assessments, nursing diagnosis,
  737  formulation, and adjustment of nursing care plans.
  738         (b) The prediction of individual patient nursing care needs
  739  for prospective assignment of direct care registered nurses
  740  shall be based on individual patient assessments of the direct
  741  care registered nurse assigned to each patient and in accordance
  742  with a documented patient classification system as provided in
  743  subsections (1) and (2) of section 4 of this act.
  744         (4)(a) Competent performance of the essential functions of
  745  a direct care registered nurse as provided in this section
  746  requires the exercise of independent judgment in the interests
  747  of the patient. The exercise of such independent judgment,
  748  unencumbered by the commercial or revenue-generation priorities
  749  of a hospital or employing entity of a direct care registered
  750  nurse, is essential to safe nursing care.
  751         (b) The exercise of independent judgment by a direct care
  752  registered nurse in the performance of the functions described
  753  in this section shall be provided in the exclusive interests of
  754  the patient and may not, for any purpose, be considered, relied
  755  upon, or represented as a job function, authority,
  756  responsibility, or activity undertaken in any respect for the
  757  purpose of serving the business, commercial, operational, or
  758  other institutional interests of the hospital employer.
  759         (5)(a) In addition to the limitations on assignments of
  760  patient care tasks provided in subsection (8) of section 4 of
  761  this act, a direct care registered nurse who is responsible for
  762  a patient may assign tasks required in the implementation of
  763  nursing care for that patient to other licensed nursing staff or
  764  to unlicensed staff only if the assigning direct care registered
  765  nurse:
  766         1. Determines that the personnel assigned the tasks possess
  767  the necessary training, experience, and capability to
  768  competently and safely perform the tasks to be assigned; and
  769         2. Effectively supervises the clinical functions and
  770  nursing care tasks performed by the assigned personnel.
  771         (b) The exercise of clinical supervision of nursing care
  772  personnel by a direct care registered nurse in the performance
  773  of the functions as provided in this section shall be in the
  774  exclusive interests of the patient and may not, for any purpose
  775  whatsoever, be considered, relied upon, or represented as a job
  776  function, authority, responsibility, or activity undertaken in
  777  any respect for the purpose of serving the business, commercial,
  778  operational, or other institutional interests of the hospital
  779  employer, but constitutes the exercise of professional nursing
  780  authority and duty exclusively in the interests of the patient.
  781         (6) A health care facility may not engage in the deployment
  782  of technology that limits the direct care provided by a direct
  783  care registered nurse in the performance of functions that are
  784  part of the nursing process, including the full exercise of
  785  independent clinical judgment in the assessment, planning,
  786  implementation, and evaluation of care, or that limits a direct
  787  registered nurse from acting as a patient advocate in the
  788  exclusive interest of the patient. Technology may not be skill
  789  degrading, interfere with the direct care registered nurse’s
  790  provision of individualized patient care, override the direct
  791  care registered nurse’s independent professional judgment, or
  792  interfere with the registered nurse’s right to advocate in the
  793  exclusive interest of the patient.
  794         (7) This section applies only to nurses employed by or
  795  providing care in a health care facility.
  796         Section 6. Direct care registered nurse’s duty and right of
  797  patient advocacy.—
  798         (1) By virtue of their professional license and ethical
  799  obligations, all direct care registered nurses have a duty and
  800  right to act and provide care in the exclusive interests of the
  801  patients and to act as the patient’s advocate, as circumstances
  802  require, in accordance with this section.
  803         (2) The direct care registered nurse is always responsible
  804  for providing competent, safe, therapeutic, and effective
  805  nursing care to assigned patients.
  806         (a) Before accepting a patient assignment, a direct care
  807  registered nurse must have the necessary knowledge, judgment,
  808  skills, and ability to provide the required care. It is the
  809  responsibility of the direct care registered nurse to determine
  810  whether she or he is clinically competent to perform the nursing
  811  care required by patients in a particular clinical unit or who
  812  have a particular diagnosis, condition, prognosis, or other
  813  determinative characteristic of nursing care, and whether
  814  acceptance of a patient assignment would expose the patient to
  815  the risk of harm.
  816         (b) If the direct care registered nurse is not clinically
  817  competent to perform the care required for a patient assigned
  818  for nursing care, or if the assignment would expose the patient
  819  to risk of harm, the direct care registered nurse may not accept
  820  the patient care assignment. Such refusal to accept a patient
  821  care assignment is an exercise of the direct care registered
  822  nurse’s duty and right of patient advocacy.
  823         (3) In the course of performing the responsibilities and
  824  essential functions described in section 5 of this act and this
  825  section, the direct care registered nurse assigned to a patient
  826  receives orders initiated by physicians and other legally
  827  authorized health care professionals within their scope of
  828  licensure regarding patient care services to be provided to the
  829  patient, including, without limitation, the administration of
  830  medications and therapeutic agents that are necessary to
  831  implement a treatment, disease prevention, or rehabilitative
  832  regimen.
  833         (a) The direct care registered nurse shall assess each such
  834  order before implementation in order to determine if the order
  835  is:
  836         1. In the best interests of the patient;
  837         2. Initiated by a person legally authorized to issue the
  838  order; and
  839         3. Issued in accordance with applicable law and rules
  840  governing nursing care.
  841         (b) If the direct care registered nurse determines these
  842  criteria have not been satisfied with respect to a particular
  843  order, or has some doubt regarding the meaning or conformance of
  844  the order with these criteria, she or he shall seek
  845  clarification from the initiator of the order, the patient’s
  846  physician, or other appropriate medical officer. Clarification
  847  must be obtained prior to implementation.
  848         (c) If, upon clarification, the direct care registered
  849  nurse determines that the criteria for implementation of an
  850  order have not been satisfied, she or he may refuse
  851  implementation on the basis that the order is not in the best
  852  interests of the patient. Seeking clarification of an order or
  853  refusing an order as described in this section constitutes an
  854  exercise of the direct care registered nurse’s duty and right of
  855  patient advocacy.
  856         (4) A direct care registered nurse has the professional
  857  obligation and therefore the right to act as the patient’s
  858  advocate, as circumstances require, by initiating action to
  859  improve health care or to change decisions or activities that,
  860  in the professional judgment of the direct care registered
  861  nurse, are against the interests or wishes of the patient, or by
  862  giving the patient the opportunity to make informed decisions
  863  about health care before it is provided.
  864         Section 7. Free speech; patient protection.—
  865         (1) A direct care registered nurse has the right to act as
  866  the patient’s advocate, as circumstances require, by:
  867         (a) Initiating action to improve health care or to change
  868  decisions or activities that, in the professional judgment of
  869  the nurse, are against the interests and wishes of the patient;
  870  and
  871         (b) Giving the patient an opportunity to make informed
  872  decisions about health care before it is provided.
  873         (2) A direct care registered nurse may refuse to accept an
  874  assignment as a nurse in a health care facility if:
  875         (a) The assignment would violate any provision of chapter
  876  464, Florida Statutes, or the rules adopted thereunder;
  877         (b) The assignment would violate sections 3 through 6 of
  878  this act; or
  879         (c) The direct care registered nurse is not prepared by
  880  education, training, or experience to fulfill the assignment
  881  without compromising the safety of any patient or jeopardizing
  882  the license of the registered nurse.
  883         (3) A direct care registered nurse may refuse to perform
  884  any assigned tasks as a nurse in a health care facility if:
  885         (a) The assigned task would violate any provision of
  886  chapter 464, Florida Statutes, or the rules adopted thereunder;
  887         (b) The assigned task is outside the scope of practice of
  888  the direct care registered nurse; or
  889         (c) The direct care registered nurse is not prepared by
  890  education, training, or experience to fulfill the assigned task
  891  without compromising the safety of any patient or jeopardizing
  892  the license of the direct care registered nurse.
  893         (4)(a) A health care facility may not discharge,
  894  discriminate, or retaliate in any manner with respect to any
  895  aspect of employment, including discharge, promotion,
  896  compensation, or terms, conditions, or privileges of employment,
  897  against a direct care registered nurse based on the nurse’s
  898  refusal of a work assignment or assigned task as provided in
  899  this section.
  900         (b) A health care facility may not file a complaint or a
  901  report against a direct care registered nurse with the Board of
  902  Nursing or the Agency for Health Care Administration because of
  903  the nurse’s refusal of a work assignment or assigned task
  904  described in this section.
  905         (5) Any direct care registered nurse who has been
  906  discharged, discriminated against, or retaliated against in
  907  violation of this section or against whom a complaint has been
  908  filed in violation of paragraph (4)(b) may bring a cause of
  909  action in a state court. A direct care registered nurse who
  910  prevails on the cause of action is entitled to one or more of
  911  the following:
  912         (a) Reinstatement.
  913         (b) Reimbursement of lost wages, compensation, and
  914  benefits.
  915         (c) Attorney fees.
  916         (d) Court costs.
  917         (e) Other damages.
  918         (6) A direct care registered nurse, patient, or other
  919  individual may file a complaint with the agency against a health
  920  care facility that violates the provisions of this act. For any
  921  complaint filed, the agency shall:
  922         (a) Receive and investigate the complaint;
  923         (b) Determine whether a violation of this act as alleged in
  924  the complaint has occurred; and
  925         (c) If such a violation has occurred, issue an order that
  926  the complaining nurse or individual not suffer any retaliation
  927  described in this section.
  928         (7)(a) The agency shall provide for the establishment of a
  929  toll-free telephone hotline to provide information regarding the
  930  requirements of this section and to receive reports of
  931  violations of such section.
  932         (b) A health care facility shall provide each patient
  933  admitted to the facility for inpatient care with the hotline
  934  described in paragraph (a), and shall give notice to each
  935  patient that such hotline may be used to report inadequate
  936  staffing or care.
  937         (8)(a) A health care facility may not discriminate or
  938  retaliate in any manner against any patient, employee, or
  939  contract employee of the facility, or any other individual, on
  940  the basis that such individual, in good faith, individually or
  941  in conjunction with another person or persons, has presented a
  942  grievance or complaint, or has initiated or cooperated in any
  943  investigation or proceeding of any governmental entity,
  944  regulatory agency, or private accreditation body, made a civil
  945  claim or demand, or filed an action relating to the care,
  946  services, or conditions of the health care facility or of any
  947  affiliated or related facilities.
  948         (b) For purposes of this subsection, an individual shall be
  949  deemed to be acting in good faith if the individual reasonably
  950  believes:
  951         1. The information reported or disclosed is true; and
  952         2. A violation of this act has occurred or may occur.
  953         (9)(a) A health care facility may not:
  954         1. Interfere with, restrain, or deny the exercise, or
  955  attempt to exercise, by any person of any right provided or
  956  protected under this act; or
  957         2. Coerce or intimidate any person regarding the exercise
  958  or attempt to exercise such right.
  959         (b) A health care facility may not discriminate or
  960  retaliate against any person for opposing any facility policy,
  961  practice, or actions that are alleged to violate, breach, or
  962  fail to comply with any provision of this act.
  963         (c) A health care facility, or an individual representing a
  964  health care facility, may not make, adopt, or enforce any rule,
  965  regulation, policy, or practice that in any manner directly or
  966  indirectly prohibits, impedes, or discourages a direct care
  967  registered nurse from, or intimidates, coerces, or induces a
  968  direct care registered nurse regarding, engaging in free speech
  969  activities or disclosing information as provided under this act.
  970         (d) A health care facility, or an individual representing a
  971  health care facility, may not in any way interfere with the
  972  rights of nurses to organize, bargain collectively, and engage
  973  in concerted activity under chapter 7 of the National Labor
  974  Relations Act, 29 U.S.C. s. 157.
  975         (e) A health care facility shall post in an appropriate
  976  location in each unit a conspicuous notice in a form specified
  977  by the agency which:
  978         1. Explains the rights of nurses, patients, and other
  979  individuals under this section;
  980         2. Includes a statement that a nurse, patient, or other
  981  individual may file a complaint with the agency against a health
  982  care facility that violates the provisions of this act; and
  983         3. Provides instructions on how to file a complaint.
  984         Section 8. Enforcement.—
  985         (1) In addition to any other penalties prescribed by law,
  986  the agency may impose civil penalties as follows:
  987         (a) The agency may impose against a health care facility
  988  found to be in violation of any provision of this act a civil
  989  penalty of not more than $25,000 for each such violation, except
  990  that the agency shall impose a civil penalty of more than
  991  $25,000 for each violation in the case of a health care facility
  992  that the agency determines has a pattern of practice of such
  993  violation.
  994         (b) The agency may impose against an individual who is
  995  employed by a health care facility and who is found by the
  996  agency to have violated a requirement of this act a civil
  997  penalty of not more than $20,000 for each such violation.
  998         (2) The agency shall post on its Internet website the names
  999  of health care facilities against which civil penalties have
 1000  been imposed under this act, and such additional information as
 1001  the agency deems necessary.
 1002         Section 9. This act shall take effect July 1, 2012.