Nurse Overtime and Patient Safety Act of 2020

II 116TH CONGRESS 2D SESSION S. 4541 To amend title XVIII of the Social Security Act to provide for patient protection by limiting the number of mandatory overtime hours a nurse may be required to work in certain providers of services to which pay- ments are made under the Medicare Program. IN THE SENATE OF THE UNITED STATES SEPTEMBER 8, 2020 Mr. MERKLEY introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend title XVIII of the Social Security Act to provide for patient protection by limiting the number of manda- tory overtime hours a nurse may be required to work in certain providers of services to which payments are made under the Medicare Program. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Nurse Overtime and 4 Patient Safety Act of 2020’’. 5 SEC. 2. FINDINGS. 6 Congress finds as follows: 7 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4541 IS (1) The Federal Government has a substantial 1 interest in assuring that the delivery of health care 2 services to patients in health care facilities is ade- 3 quate and safe. 4 (2) Research, including a study published in the 5 Health Services Research in October 2014 and a 6 2019 study from New York University, document 7 the following: 8 (A) Limits on work hours have long been 9 found in high-risk occupational settings where 10 long work hours can adversely affect safety and 11 performance as well as job satisfaction and 12 quality of life. 13 (B) Regulations limiting work hours were 14 first instituted in the 1930s. 15 (C) Adoption of work hour regulations has 16 been slower in the health care sector. 17 (D) A review of the current literature indi- 18 cates that despite potential pitfalls of disconti- 19 nuity in care, regulated work hours for nurses 20 improve occupational and patient safety. 21 (E) The work year for registered nurses is 22 substantially longer than the national average 23 by 200 work hours. 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4541 IS (F) When nurses with more than one posi- 1 tion of employment are taken into account, 2 total nurse work hours may be greater than the 3 estimate above. 4 (G) Furthermore, because nurses fre- 5 quently work under a 12-hour shift schedule, 6 they not only work extended hours but also re- 7 turn to work often without sufficient time for 8 rest. 9 (H) Newly licensed nurses work an average 10 of 39.4 hours a week, predominantly in 12-hour 11 shifts. 12 (I) More than 13 percent of newly licensed 13 nurses report having a second paid job. 14 (J) New nurses prefer working the day 15 shift, and the preferred shift length is 12 hours. 16 (K) Twelve percent of nurses report work- 17 ing mandatory overtime, and nearly half work 18 voluntary overtime at an average of three hours 19 in a workweek. 20 (3) Nurses working long hours often experience 21 fatigue, poor sleep quality, impaired vigilance, and 22 lack of alertness, which contributes to medical errors 23 and results in other consequences that compromise 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4541 IS patient safety, even after controlling for staffing lev- 1 els and hospital characteristics. 2 (4) Eighteen States have passed legislation or 3 promulgated regulations restricting mandatory over- 4 time for nurses. 5 SEC. 3. LIMITATIONS ON MANDATORY OVERTIME FOR 6 NURSES. 7 (a) PROVIDER AGREEMENTS.—Section 1866 of the 8 Social Security Act (42 U.S.C. 1395cc) is amended— 9 (1) in subsection (a)(1)— 10 (A) in subparagraph (X), by striking 11 ‘‘and’’ at the end; 12 (B) in subparagraph (Y), by striking the 13 period and inserting ‘‘, and’’; and 14 (C) by inserting after subparagraph (Y) 15 the following new subparagraph: 16 ‘‘(Z) to comply with the requirements of sub- 17 section (l) (relating to limitations on mandatory 18 overtime for nurses).’’; and 19 (2) by adding at the end the following new sub- 20 section: 21 ‘‘(l) LIMITATIONS ON MANDATORY OVERTIME FOR 22 NURSES.—For purposes of subsection (a)(1)(Z), the re- 23 quirements of this subsection are the following: 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4541 IS ‘‘(1) PROHIBITION ON MANDATORY OVER- 1 TIME.— 2 ‘‘(A) IN GENERAL.—Except as provided in 3 this subsection, a provider of services shall not, 4 directly or indirectly, require a nurse to work— 5 ‘‘(i) in excess of— 6 ‘‘(I) a previously scheduled work 7 shift or duty period of the nurse, re- 8 gardless of the length of the shift; 9 ‘‘(II) 48 hours in any workweek 10 (as defined in section 778.105 of title 11 29, Code of Federal Regulations, or 12 any successor regulation); or 13 ‘‘(III) 12 consecutive hours in a 14 24-hour period; or 15 ‘‘(ii) during the 10-hour period imme- 16 diately following the 12th hour worked in 17 a shift or duty period during a 24-hour pe- 18 riod. 19 ‘‘(B) HOURS WORKED.—For purposes of 20 subparagraph (A), time spent by a nurse in the 21 following shall be included as hours worked: 22 ‘‘(i) Required meetings or while re- 23 ceiving education or training. 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4541 IS ‘‘(ii) On call or on standby when the 1 nurse is required to be at the provider of 2 services. 3 ‘‘(iii) On call or on standby when the 4 nurse is not required to be at the provider 5 of services. 6 ‘‘(C) CLARIFICATION REGARDING VOL- 7 UNTARY OVERTIME.—Nothing in this sub- 8 section shall be construed to preclude a nurse 9 from volunteering to work overtime. 10 ‘‘(2) EXCEPTIONS.— 11 ‘‘(A) IN GENERAL.—Subject to subpara- 12 graph (B), the requirements of paragraph (1) 13 shall not apply to a provider of services during 14 a declared emergency or disaster (as defined in 15 paragraph (9)(E)) if the provider is requested, 16 or otherwise is expected, to provide an excep- 17 tional level of emergency or other medical serv- 18 ices to the community. 19 ‘‘(B) LIMITATIONS.—With respect to a 20 provider of services to which subparagraph (A) 21 applies, a nurse may only be required to work 22 for periods in excess of the periods described in 23 paragraph (1) if— 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4541 IS ‘‘(i) the provider has made reasonable 1 efforts to fill the immediate staffing needs 2 of the provider through alternative means; 3 ‘‘(ii) the duration of the work require- 4 ment does not extend past the earlier of— 5 ‘‘(I) the date on which the de- 6 clared emergency or disaster ends; or 7 ‘‘(II) the date on which the pro- 8 vider’s direct role in responding to the 9 medical needs resulting from the de- 10 clared emergency or disaster ends; 11 ‘‘(iii) a staff vacancy for the next shift 12 becomes known at the end of the current 13 shift; and 14 ‘‘(iv) there is potential harm to an as- 15 signed patient if the nursing staff member 16 leaves the assignment or transfers care to 17 another nursing staff member. 18 ‘‘(3) WHISTLEBLOWER PROTECTIONS FOR 19 NURSES.— 20 ‘‘(A) RIGHT TO REPORT.— 21 ‘‘(i) IN GENERAL.—A nurse may file a 22 complaint with the Secretary against a 23 provider of services who violates the provi- 24 sions of this subsection. 25 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4541 IS ‘‘(ii) PROCEDURE.—The Secretary 1 shall establish a procedure under which a 2 nurse may file a complaint under clause 3 (i). 4 ‘‘(B) INVESTIGATION OF COMPLAINT.— 5 The Secretary shall investigate complaints of 6 violations filed by a nurse under subparagraph 7 (A). 8 ‘‘(C) ACTIONS.—If the Secretary deter- 9 mines that a provider of services has violated 10 the provisions of this subsection, the Secretary 11 shall require the provider to establish a plan of 12 action to eliminate the occurrence of such viola- 13 tion, and may seek civil money penalties under 14 paragraph (7). 15 ‘‘(4) NURSE NONDISCRIMINATION PROTEC- 16 TIONS.— 17 ‘‘(A) IN GENERAL.—A provider of services 18 shall not terminate or propose to terminate, pe- 19 nalize, discriminate, or retaliate in any manner 20 with respect to any aspect of employment, in- 21 cluding discharge, promotion, compensation, or 22 terms, conditions, or privileges of employment, 23 against a nurse who refuses to work mandatory 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4541 IS overtime or who in good faith, individually or in 1 conjunction with another person or persons— 2 ‘‘(i) reports a violation or suspected 3 violation of this subsection to a public reg- 4 ulatory agency, a private accreditation 5 body, or the management personnel of the 6 provider of services; 7 ‘‘(ii) initiates, cooperates, or otherwise 8 participates in an investigation or pro- 9 ceeding brought by a regulatory agency or 10 private accreditation body concerning mat- 11 ters covered by this subsection; or 12 ‘‘(iii) informs or discusses with other 13 employees, with representatives of those 14 employees, or with representatives of asso- 15 ciations of health care professionals, viola- 16 tions or suspected violations of this sub- 17 section. 18 ‘‘(B) RETALIATORY REPORTING.—A pro- 19 vider of services may not file a complaint or a 20 report against a nurse with the appropriate 21 State professional disciplinary agency because 22 the nurse refused to comply with a request to 23 work mandatory overtime. 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4541 IS ‘‘(C) GOOD FAITH.—For purposes of this 1 paragraph, a nurse is deemed to be acting in 2 good faith if the nurse reasonably believes— 3 ‘‘(i) that the information reported or 4 disclosed is true; and 5 ‘‘(ii) that a violation has occurred or 6 may occur. 7 ‘‘(5) NOTICE POLICY AND REQUIREMENTS.— 8 ‘‘(A) REQUIREMENT TO DEVELOP A POL- 9 ICY AND PROCEDURE.—Each provider of serv- 10 ices shall develop a policy and have in place 11 procedures to ensure, at a minimum, that— 12 ‘‘(i) mandatory overtime, when re- 13 quired as described in paragraph (2)(B), is 14 documented in writing; and 15 ‘‘(ii) mandatory overtime policies and 16 procedures are clearly written, provided to 17 all new nursing staff and readily available 18 to all nursing staff. 19 ‘‘(B) REQUIREMENT TO POST NOTICE.— 20 Each provider of services shall post conspicu- 21 ously in an appropriate location a sign (in a 22 form specified by the Secretary) specifying 23 rights of nurses under this subsection. 24 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4541 IS ‘‘(C) RIGHT TO FILE COMPLAINT.—Such 1 sign shall include a statement that a nurse may 2 file a complaint with the Secretary against a 3 provider of services who violates the provisions 4 of this subsection and information with respect 5 to the manner of filing such a complaint. 6 ‘‘(6) POSTING OF NURSE SCHEDULES.—A pro- 7 vider of services shall regularly post in a conspicuous 8 manner the nurse schedules (for such periods of 9 time that the Secretary determines appropriate by 10 type or class of provider of services) for the depart- 11 ment or unit involved, and shall make available upon 12 request to nurses assigned to the department or unit 13 the daily nurse schedule for such department or 14 unit. 15 ‘‘(7) CIVIL MONEY PENALTY.— 16 ‘‘(A) IN GENERAL.—The Secretary may 17 impose a civil money penalty of not more than 18 $10,000 for each knowing violation of the provi- 19 sions of this subsection committed by a provider 20 of services. 21 ‘‘(B) PATTERNS OF VIOLATIONS.—Not- 22 withstanding subparagraph (A), the Secretary 23 shall provide for the imposition of more severe 24 civil money penalties under this paragraph for 25 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4541 IS providers of services that establish patterns of 1 repeated violations of such provisions. 2 ‘‘(C) ADMINISTRATION OF PENALTIES.— 3 The provisions of section 1128A (other than 4 subsections (a) and (b)) shall apply to a civil 5 money penalty under this paragraph in the 6 same manner as such provisions apply to a pen- 7 alty or proceeding under section 1128A(a). 8 The Secretary shall publish on the internet site of 9 the Department of Health and Human Services the 10 names of providers of services against which civil 11 money penalties have been imposed under this para- 12 graph, the violation for which the penalty was im- 13 posed, and such additional information as the Sec- 14 retary determines appropriate. With respect to a 15 provider of services that has had a change in owner- 16 ship, as determined by the Secretary, penalties im- 17 posed on the provider of services while under pre- 18 vious ownership shall no longer be published by the 19 Secretary on such internet site after the 1-year pe- 20 riod beginning on the date of change in ownership. 21 ‘‘(8) RULE OF CONSTRUCTION REGARDING 22 OTHER RIGHTS, REMEDIES, AND PROCEDURES.— 23 Nothing in this subsection shall be construed to alter 24 or otherwise affect the rights, remedies, and proce- 25 VerDate Sep 11 2014 19:04 Sep 09, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4541.IS S4541 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 4541 IS dures affords to nurses under Federal, State, or 1 local laws or under the terms of collective bargaining 2 agreements, memorandums of understanding, or 3 other agreements between such employees and their 4 employers. 5 ‘‘(9) DEFINITIONS.—In this subsection: 6 ‘‘(A) MANDATORY OVERTIME.—The term 7 ‘mandatory overtime’ means hours worked in 8 excess of the periods of time described in para- 9 graph (1), except as provided in paragraph (2), 10 pursuant to any request made by a provider of 11 services to a nurse which, if refused or decli [Text truncated for display. 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