Loyola University Chicago School of Law, LL.M. 2019
On November 6, 2018, Massachusetts voters will determine whether they want to establish patient assignment limitations for registered nurses working in hospitals. The Massachusetts Nurses Association (“MNA”) has been the driving force behind the proposed legislation. After acquiring more than 100,000 signatures for the initiative to appear on the ballot and a victorious litigation outcome regarding the legislation’s employment implications on hospitals, the Massachusetts voters will ultimately determine the legislation’s fate.
Massachusetts’ Solution to Vague Medicare Regulation
Hospitals participating in the Medicare program are required to have an “adequate number […] of licensed registered nurses, licensed practical (vocational) nurses, and other personnel to provide nursing care to all patients as needed.” The regulation does not provide guidance or a definition for what it deems “adequate.” According to the American Nurses Association (“ANA”), states have grappled with this definition and generally address it by enacting statutes that either (1) require the creation of staffing committees in order to create nurse staffing plans that address patient needs, (2) mandate specific nurse to patient ratios, or (3) require facilities to disclose staffing levels to the public and/or a regulatory body. Of the 14 states with nurse staffing regulations and/or statutes, ANA reports that California is the only state that has mandated nurse to patient ratios. If the proposed legislation is approved by votes, Massachusetts would be the second state to address “adequate” nurse staffing through mandated patient assignment limitations.
The Massachusetts Patient Safety Act, summarized for voters as Ballot Question #1, establishes patient assignment limitations for registered nurses working in hospitals, excluding rehabilitation facilities and long-term facilities. Nurses assigned to patients in critical or intensive care units, or in active labor will be limited to one patient. The patient assignment limitations become more lenient for nurses caring for non-urgent stable patients, outpatient, or uncomplicated mothers or babies postpartum. In order to implement patient assignment limitations, hospitals are restricted from “reducing staffing levels of the healthcare workforce.” Healthcare workforce is defined as “personnel employed by or contracted to work at a facility that have an effect upon the delivery of quality of care to patients,” such as nurses, clerical staff, service staff and maintenance staff. Upon implementation, each facility must submit a “written implementation plan to the Massachusetts Health Policy Commission certifying that it will implement the patient assignment limits without diminishing staffing level of its health care workforce.” Once implemented, every hospital must post conspicuous and easily readable notice that includes all the patient assignment limits and include a procedure for which to report violations.
Opponents of Massachusetts’ proposed legislation believe that patient assignment limitations would threaten the quality of patient care, reduce critical care services, and increase the emergency room wait times. Additionally, opponents fear that many community hospitals and nonprofit hospitals will have to reduce services in order to comply with the patient assignment limitations. At this time, it’s unclear how the proposed legislation might affect Massachusetts hospital systems, but California’s history seems to indicate a positive outcome. Two years after California implemented their nurse staffing requirements, a study by Health Services Research found that lower nurse to patient ratios significantly decreased patient morbidity within 30 days of hospital readmission, decreased the likelihood of death from preventable complications and a substantial increase in registered nurse employment.
Implementation of Patient Assignment Limitations
Implementing nurse to patient ratios can be difficult if hospitals and compliance departments are unprepared. First, hospitals should begin by assessing at their overall nursing staff as well as each affected unit. Special attention should be paid to each nurse’s education, experience, and assignment. Hospitals should then determine whether, given the needs of their patient population, each unit meets the required patient assignment limitations and whether nurses could be transferred to understaffed units in order to comply. It should be noted that hospitals may opt to provide stricter patient assignment limitations than the proposed legislation provides.
Second, once hospitals have determined the best patient assignment limitations for the needs of their patient population, policies and procedures will need to be updated throughout the hospital. Hospital compliance officers must determine whether to issue one new policy or amend policies for each affected unit.
Third, after implementing patient assignment limitations, hospital administration will need to educate all personnel about the impact and importance of patient assignment limitations on patient quality and legal compliance. Education should be provided to the affected units with special focus on the patient assignment limitations within their unit.
Last, hospitals should conduct periodic reviews to confirm compliance throughout the affected units, as well as to confirm that the required notice is posted in visible areas. Hospital leadership should be aware that failure to comply with the proposed legislation may result in a $25,000 per violation fine, plus $25,000 per day that the violation continues.
Additionally, when preparing the required posting, management may want to reach out to their in-house or outside counsel to ensure that the posting meets all required legal standards. The proposed legislation requires that the notice is printed in English, and other languages as needed per the hospital’s patient demographics. Hospitals in communities with patients who predominantly speak a language other than English, will want to ensure that the notice is translated into such language. Review by legal counsel and/or certified translators will ensure that the notice is properly translated and meets any additional federal regulations. The notice should be posted in visible areas throughout the hospital, specifically in the affected units.
Although only fourteen states have addressed Medicare’s regulation regarding “adequate” nursing staff, Congress is now beginning to tackle the issue. There are currently four congressional bills that may enact nurse to patient ratios nationwide. The first set (H.R.2392 and S.1063) entitled “Nurse Staffing Standards for Hospital Patient Safety and Quality Care Act of 2017” were first introduced on May 4, 2017. The bills seek to establish minimum direct care registered nurse patient ratio that vary per hospital unit and patient status. The bills also provide nurses some rights and protections when more patients than the bill or staffing plan allows.
The second set (H.R.5052 and S.2446) entitled “Safe Staffing for Nurse and Patient Safety Act of 2018” were first introduced on February 15, 2018. The bills seeks to require Medicare participating hospitals to establish a nurse staffing plan, but does not require a specific nurse-to-patient ratio. The bills do require that the nurse staffing plan take into consideration the needs of its staff, patient needs and quality of care. An interesting point in the Safe Staffing bill is that it does “not preempt any registered nurse staffing levels established under State law or regulation,” which will leave California’s established statute and Massachusetts’ proposed legislation unaffected, if it succeeds.
It’s become clear that nurse to patient ratios, patient safety and quality of care are concerns being raised and looked at, at both the state and federal level. Hospitals should start to examine their nurse staffing needs in relation to their patient population needs and quality of care.