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:
ARTICLE 42. ENSURING PATIENT SAFETY ACT
§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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