Introduced Version House Bill 3115 History

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H. B. 3115

(By Delegates Hatfield, Martin, Perdue,

Marshall, Yost, Kominar and Long)

[Introduced March 21, 2005 ; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-42-1, relating to ensuring patient safety; defining terms; creating an "acuity-based patient classification system;" assigning powers and duties to the Bureau for Public Health; establishing minimum direct-care registered nurse to patient ratios; requiring annual staffing plans and certifications as a condition of licensing; requiring an annual audit; providing additional conditions for licensing; prohibiting assignment of unlicensed personnel to perform licensed nurse functions; requiring a full-time registered nurse executive leader; providing for quality assurance; requiring appropriate orientation and competence in clinical area of assignment with documentation thereof to be maintained in personnel files; prohibiting understaffing of other personnel; prohibiting mandatory overtime and on-call policies except in emergencies; providing for violations and civil penalties; and posting notices of violations.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-42-1, to read as follows:


§16-42-1. Ensuring Patient Safety Act.

(a) As used in this section, the following words, shall, unless the context clearly requires otherwise, have the following meanings:

(1) "Acuity-based patient classification system" means a standardized set of criteria based on scientific data that acts as a measurement instrument which predicts registered nursing care requirements for individual patients based on severity of patient illness, need for specialized equipment and technology, intensity of nursing interventions required and the complexity of clinical nursing judgment needed to design, implement and evaluate the patient?s nursing care plan consistent with professional standards of care, details the amount of registered nursing care needed, both in number of direct-care registered nurses and skill mix of nursing personnel required on a daily basis for each patient in a nursing department or unit and is stated in terms that readily can be used
and understood by direct-care registered nurses. The acuity system criteria shall take into consideration the patient care services provided not only by registered nurses but also by licensed practical nurses and other health care personnel;
(2) "Assessment tool" means a measurement system which compares the registered nurse staffing level in each nursing department or unit against actual patient nursing care requirements in order to review the accuracy of an acuity system;

(3) "Board" means the Board of Examiners for Registered Professional Nursing;

(4) "Bureau" means the Bureau for Public Health;

(5) "Direct-care registered nurse" means a registered nurse who has accepted direct responsibility and accountability to carry out medical regimens, nursing or other bedside care for patients;

(6) "Facility" means a hospital, the teaching hospital of a medical school, any licensed private or state-owned and operated general acute-care hospital, an acute psychiatric hospital, a specialty hospital, or any acute-care unit within a state operated facility;

(7) "Nursing care," means care which falls within the scope of practice as prescribed by state law or otherwise encompassed within recognized professional standards of nursing practice, including assessment, nursing diagnosis, planning, intervention, evaluation and patient advocacy; and

(8) "Ratio," means the actual number of patients to be assigned to each direct-care registered nurse.

(b) The Bureau for Public Health has the power and its duty is:

(1)To promulgate rules necessary to carry out the purposes and provisions of this section, including rules defining terms, and prescribing the process for establishing a standardized acuity-based patient classification system;

(2)To assure that the provisions of this section and all rules promulgated hereunder are enforced and to promulgate, within one year of the effective date of this section, rules providing for an accessible and confidential system to report any failure to comply with requirements of this section and public access to information regarding reports of inspections, results, deficiencies and corrections under this section; and

(3)To develop within one year of passage of this article, a standardized acuity-based patient classification system as defined in subsection (a) of this section to be utilized by all facilities to increase the number of direct care registered nurses to meet patient needs.

(c) Each facility, as defined in subsection (a) of this section, shall incorporate and maintain the following minimum direct-care registered nurse-to-patient ratios:

(1) Intensive Care Unit: 1:2;

(2) Critical Care Unit 1:2;

(3) Neo-natal Intensive Care 1:2;

(4) Burn Unit 1:2;

(5) Step-down/Intermediate Care 1:3;

(6) Operating Room:

(A) RN as Circulator 1:1; and

(B) RN as monitor in moderate sedation cases 2:1;

(7) Post Anesthesia Care Unit:

(A) Under anesthesia 1:1; and

(B) Post Anesthesia 1:2;

(8) Emergency Department 1:3:

(A) Emergency Critical care 1:2; and

(B) Emergency Trauma 1:1;

(The triage, radio, or other specialty registered nurse shall not be counted as part of the number in clause (A) or (B) of this paragraph.)

(9) Labor and Delivery:

(A) Active Labor 1:1;

(B) Immediate Postpartum 1:2 (one couplet);

(C) Postpartum 1:6 (three couplets);

(D) Intermediate Care Nursery 1:4; and

(E) Well-Baby Nursery 1:6;

(10) Pediatrics 1:4;

(11) Psychiatric 1:4;

(12) Medical and Surgical 1:4;

(13) Telemetry 1:4;

(14) Observational/Out patient treatment 1:4;

(15) Transitional Care 1:5;

(16) Rehabilitation Unit 1:5; and

(17) Specialty Care Unit 1:4.

Any unit not otherwise listed above shall be considered a specialty care unit.

These ratios constitute the minimum number of direct-care registered nurses. Additional direct-care registered nurses shall be added and the ratio adjusted to ensure direct-care registered nurse staffing in accordance with an approved acuity-based patient classification system. Nothing herein may be construed to preclude any facility from increasing the number of direct-care registered nurses, nor shall the requirements set forth be deemed to supersede or replace any requirements otherwise mandated by law, regulation or collective bargaining contract so long as the facility meets the minimum requirements outlined.

(d) As a condition of licensing, each facility annually shall submit to the department a prospective staffing plan together with a written certification that the staffing plan is sufficient to provide adequate and appropriate delivery of health care services to patients for the ensuing year and does all of the following:

(1)Meets the minimum direct-care registered nurse-to-patient
ratio requirements of subsection (c) of this section;
(2)Employs the acuity-based patient classification system for addressing fluctuations in patient acuity levels requiring increased registered nurse staffing levels above the minimums set forth in subsection (c) of this section;

(3)Provides for orientation of registered nursing staff to assigned clinical practice areas, including temporary assignments;

(4)Includes other unit or department activity such as discharges, transfers and admissions, administrative and support tasks that are expected to be done by direct-care registered nurses in addition to direct nursing care; and

(5) Submits the assessment tool used to validate the acuity system relied upon in the plan. As a condition of licensing, each facility annually shall submit to the department an audit of the preceding year?s staffing plan as dictated in clauses (1) to (5) of this subsection. The audit shall compare the staffing plan with measurements of actual staffing as well as measurements of actual acuity for all units within the facility.

(e) As a condition of licensing, a facility required to have a staffing plan under this section shall:

(1) Prominently post on each unit the daily written nurse staffing plan to reflect the registered nurse-to-patient ratio means of consumer information and protection; and

(2) Provide each patient and/or family member with a toll-free
hotline number for the Bureau for Public Health, which may be used to report inadequate registered nurse staffing. Such complaint shall cause investigation by the Bureau within twenty hours to determine whether any violation of law or rule by the facility has occurred.
(f) No facility may directly assign any unlicensed personnel to perform nondelegable licensed nurse functions in-lieu of care delivered by a licensed registered nurse. Additionally, unlicensed personnel are prohibited from performing tasks which require the clinical assessment, judgment and skill of a licensed registered nurse. Such functions shall include, but are not limited to:

(1) Nursing activities which require nursing assessment and judgment during implementation;

(2) Physical, psychological, and social assessment which requires nursing judgment, intervention, referral or follow-up;

(3) Formulation of the plan of nursing care and evaluation of the patient?s/client?s response to the care provided;

(4) Administration of medications; and

(5) Health teaching and health counseling.

(g) Such rules shall require that a full-time registered nurse executive leader be employed by each facility to be responsible for the overall execution of resources to ensure sufficient registered nurse staffing is provided by the facility.

(h) Such rules shall require that a full-time registered nurse
be designated by the facility to be responsible for the overall quality assurance of nursing care as provided by the facility.
(i) Such rules shall require that a full-time registered nurse be designated by each facility to ensure the overall occupational health and safety of nursing staff employed by the facility.

(j) For purposes of compliance with this section no registered nurse may be assigned to a unit or a clinical area within a health facility unless that registered nurse has an appropriate orientation in that clinical area sufficient to provide competent nursing care to the patients in that area, and has demonstrated current competence in providing care in that area. There shall be a written, organized in-service education plan for providing orientation and competency validation for all patient care personnel:

(1) All patient care personnel shall complete orientation to the hospital and their assigned patients and patient care unit or units before receiving patient care assignments;

(2) All patient care personnel shall be subject to the process of competency validation for their assigned patients and patient care unit or units;

(3) Prior to the completion of validation of the competency standards for the patient care unit, patient care assignments shall be subject to the following restrictions:

(A) Assignments shall include only those duties and
responsibilities for which competency has been validated;
(B) A registered nurse who has demonstrated competency for the patient care unit shall be responsible for the nursing care, and shall be assigned as a resource nurse for those registered nurses who have not completed validation for that unit; and

(C) Registered nurses shall not be assigned total patient responsibility for patient care until all the standards of competency for that unit have been validated;

(4) Orientation and competency validation shall be documented in the employee?s file and shall be retained for the duration of the individual?s employment; and

(5) The staff education and training program shall be based on current standards of nursing practice, established standards of staff performance, individual staff needs and needs identified in the quality assurance process.

(k) For purposes of compliance with the minimum staffing requirements set forth under this section, except in cases of national or state declared emergencies, no facility may employ mandatory overtime or mandatory on-call policies. Mandatory overtime shall mean any employer request with respect to overtime, which if refused or declined by the employee, may result in an adverse employment consequence to the employee. The term overtime with respect to an employee, means any hours that exceed the predetermined number of hours that the employer and employee have
agreed that the employee would work during the shift or week involved.
(l) The setting of staffing standards for registered nurses is not to be interpreted as justifying the understaffing of other critical health care workers, including licensed practical nurses and unlicensed assistive personnel. The availability of these other health care workers enables registered nurses to focus on the nursing care functions that only registered nurses, by law, are permitted to perform and thereby helps to ensure adequate staffing levels.

(m) Any facility that fails to anticipate, design, maintain or adhere to a daily written nurse staffing plan in accordance with the provisions of this section, or any rule promulgated hereunder, shall be subject to revocation of the facility?s license or registration, or by a civil penalty of not more than twenty-five thousand dollars, or both, for each violation. Each day that a violation occurs or continues shall be considered a separate offense. These penalties are in addition to any other penalties that may be prescribed by law. The Bureau has jurisdiction to coordinate enforcement related activities. The civil penalty may be assessed in any action brought on behalf of the state or on behalf of any patient or resident aggrieved hereunder in any court of competent jurisdiction. Each facility found in violation of the staffing plan must prominently post its violation notice within
each unit in violation. Copies of the notice shall be posted by the facility immediately upon receipt and maintained for sixty consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the facility to ensure that the notices are not altered, defaced, or covered by any other material. The Bureau will post violation notices on its website immediately after a finding of a violation. The notice shall remain on the Bureau's website for sixty consecutive days or until the violation is rectified, whichever is longer.

NOTE: The purpose of this bill is to ensure patient safety by establishing minimum direct-care registered nurse to patient ratios. It provides for creating an "acuity-based patient classification system" and requires annual nurse staffing plans and certifications and daily posting of nurse staffing plans, consistent with the minimum standards. It requires an annual audit to be submitted to the Bureau for Public Health and prohibits mandatory overtime or on-call policies except in cases of declared emergency. It prohibits assignment of unlicensed persons to perform registered nurse functions, requires a full-time registered nurse executive leader and provides for quality assurance. It also requires appropriate orientation and competence in clinical area of assignments, with documentation to be maintained in personnel files. Finally, it provides for violations, penalties and posting notices of violations.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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