H. B. 2436
(By Delegates Hatfield, Hrutkay, Martin,
Brown, Perdue and Caputo)
[Introduced January 23, 2007; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §21-5F-2, §21-5F-3 and §21-5F-4
of the
Code of West Virginia, 1931, as amended, all relating to
modifying the Nurse Overtime and Patient Safety Act; including
certified nurse anesthetists in the definition of nurse;
adding definition of staffing pattern; modifying definition of
unforeseen emergent situation; prohibiting a hospital from
taking certain actions against a nurse; providing criminal
penalties; reducing maximum hours a nurse may be required to
work; requiring hospitals to have an anonymous process for
complaints related to patient safety; requiring posting of
notice of nurse's rights; requiring Commissioner of Labor to
have a notification procedure, including signs that must be
posted;
requiring commissioner to keep complaints anonymous
until a finding of merit; and requiring a process for
notifying a hospital of a complaint.
Be it enacted by the Legislature of West Virginia:
That §21-5F-2, §21-5F-3 and §21-5F-4 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 5F. NURSE OVERTIME AND PATIENT SAFETY ACT.
§21-5F-2. Definitions.
For the purposes of this article:
(1) "Hospital" means a facility licensed under the provisions
of article five-b, chapter sixteen of this code, but does not
include hospitals operated by state or federal agencies.
(2) "Nurse" means a certified or licensed practical nurse or
a registered nurse who is providing nursing services and is
involved in direct patient care activities or clinical services.
but does not include certified nurse anesthetists Nurse managers
are included with respect to their delivery of in-hospital patient
care, but this is in no way intended to impact on their 24-hour
twenty-four-hour management responsibility for a unit, area or
service.
(3) "Overtime" means the hours worked in excess of an agreed
upon, predetermined, regularly scheduled shift.
(4) "Staffing pattern" means a method or manner of scheduling
employees for shifts, and procedures for filling vacancies or
relieving nurses who have worked the permissible number of hours
under this article or rules promulgated under this article.
(4) (5) "Taking action against" means discharging;
disciplining; threatening; reporting to the board of nursing;
discriminating against; or penalizing regarding compensation,
terms, conditions, location or privileges of employment.
(5) (6) "Unforeseen emergent situation" means an unusual,
unpredictable or unforeseen circumstance such as, but not limited
to, an act of terrorism, a disease outbreak, adverse weather
conditions or natural disasters. An unforeseen emergent situation
does not include situations in which the hospital has reasonable
knowledge of increased patient volume or decreased staffing,
including, but not limited to, scheduled vacations and scheduled
health care worker medical leave prescheduled vacation time,
routine sick leave scheduled or unscheduled, family emergencies or
other permissible personal time and any shortage situation which
could have been prevented through alternate management strategies.
§21-5F-3. Hospital nursing overtime limitations and requirements.
(a) (1) Except as provided in subsections (b), (c), (d), (e)
and (f) of this section, a hospital is prohibited from mandating a
nurse, directly or though coercion, to accept an assignment of
overtime. and A hospital is prohibited from taking action against
a nurse, solely on the grounds that the nurse refuses to accept an
assignment of overtime at the facility if the nurse declines to
work additional hours because doing so may, in the nurse's
judgment, jeopardize patient or employee safety. including, but not limited to, discharging or in any manner discriminating against
a nurse, because the nurse has:
(A) Made complaint to the hospital, or to the Commissioner of
Labor, that the nurse has not been treated by the hospital in
accordance with the provisions of this article;
(B) Instituted or is about to institute a civil action, or
file a petition or criminal complaint against the hospital for
violating the provisions of this article; or
(C) Testified or is about to testify in any administrative
proceeding, civil action or criminal action concerning an alleged
violation of this article.
(2) Any hospital violating subdivision (1) of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than five thousand dollars nor more than twenty
thousand dollars.
(b) Notwithstanding subsections (a) and (g) of this section,
a nurse may be scheduled for duty or mandated to continue on duty
in overtime status in an unforeseen emergent situation that
jeopardizes patient safety.
(c) Subsections (a) and (g) of this section do not apply when
a nurse may be required to fulfill prescheduled on-call time, but
nothing in this article shall be construed to permit an employer to
use on-call time as a substitute for mandatory overtime.
(d) Notwithstanding subsections (a) and (g) of this section, a nurse may be required to work overtime to complete a single
patient care procedure already in progress, but Nothing in this
article shall be construed to permit permits an employer to use a
staffing pattern as a means to require a nurse to complete a
procedure as a substitute for mandatory overtime.
(e) Subsection (a) of this section does not apply when a
collective bargaining agreement is in place between nurses and the
hospital which is intended to substitute for the provisions of this
article by incorporating a procedure for the hospital to require
overtime.
(f) Subsection (a) of this section does not apply to voluntary
overtime.
(g) In the interest of patient safety, any nurse who works
twelve or more consecutive hours, as permitted by this section,
shall be allowed at least eight consecutive hours of off-duty time
immediately following the completion of the shift. Except as
provided in subsections (b), (c) and (d) of this section, no nurse
shall may work more than sixteen twelve hours in a twenty-four hour
period. The nurse is responsible for informing the employer
hospital of other employment experience during the twenty-four hour
period in question if this provision is to be invoked. To the
extent that an on-call nurse has actually worked sixteen twelve
hours in a hospital, efforts shall be made by the hospital to find
a replacement nurse to work.
(h) Each hospital shall designate an anonymous process for
patients and nurses to make staffing complaints related to patient
safety.
(i) Each hospital shall post, in one or more conspicuous
places where notices to nurses are customarily posted, a notice in
a form approved by the commissioner setting forth a nurse's rights
under this article.
§21-5F-4. Enforcement; offenses and penalties.
(a) Pursuant to the powers set forth in article one of this
chapter, the Commissioner of Labor is charged with the enforcement
of this article. The commissioner shall propose legislative and
procedural rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to establish procedures
for enforcement of this article. These rules shall include, but
are not limited to, provisions to protect due process requirements,
a hearings procedure, and an appeals procedure and a notification
procedure, including any signs that must be posted by the facility.
(b) Any complaint must be filed with the Commissioner of Labor
regarding an alleged violation of the provisions of this article
must be made within thirty days following the occurrence of the
incident giving rise to the alleged violation. Notification of the
alleged violation must be forwarded to the hospital in question
within three business days of filing. The Commissioner of Labor
shall keep each complaint anonymous until the commissioner finds that it has merit. The commissioner shall establish a process for
notifying a hospital of a complaint.
(c) The administrative penalty for the first violation of this
article shall be is a reprimand.
(d) The administrative penalty for the second offense of this
article shall be is a reprimand and a fine not to exceed five
hundred dollars.
(e) The administrative penalty for the third and subsequent
offenses shall have is a fine of not less than two thousand five
hundred dollars and not more than five thousand dollars for each
violation.
(f) To be eligible to be charged of a second offense or third
offense under this section, the subsequent offense must occur
within twelve months of the prior offense.
(g)(1) All moneys paid as administrative penalties pursuant to
this section shall be deposited into the Health Care Cost Review
Fund provided by section eight, article twenty-nine-b, chapter
sixteen of this code.
(2) In addition to other purposes for which funds may be
expended from the Health Care Cost Review Fund, the West Virginia
Health Care Authority shall expend moneys from the fund, in amounts
up to but not exceeding amounts received pursuant to subdivision
(1) of this subsection, for the following activities in the State
of West Virginia:
(A) Establishment of scholarships in medical schools;
(B) Establishment of scholarships for nurses training;
(C) Establishment of scholarships in the public health field;
(D) Grants to finance research in the field of drug addiction
and development of cures therefor;
(E) Grants to public institutions devoted to the care and
treatment of narcotic addicts; and
(F) Grants for public health research, education and care.
NOTE: The purpose of this bill is to
provide additional
protections for nurses under the Nurse Overtime and Patient Safety
Act. The bill includes provisions: Including certified nurse
anesthetists in the definition of nurse; adding a definition of
staffing pattern; modifying definition of unforeseen emergent
situation; prohibiting a hospital from taking certain actions
against a nurse; providing criminal penalties; reducing the maximum
hours a nurse may be required to work; requiring hospitals to have
an anonymous process for complaints related to patient safety;
requiring posting of notice of nurse's rights; requiring
Commissioner of Labor to
have a notification procedure, including
signs that must be posted;
requiring commissioner to keep
complaints anonymous until a finding of merit; and requiring a
process for notifying a hospital of a complaint.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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