BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 1246
AUTHOR: Hernandez
AMENDED: April 12, 2012
HEARING DATE: April 18, 2012
CONSULTANT: Marchand
SUBJECT : Health facilities: staffing.
SUMMARY : Requires periodic inspections by the Department of
Public Health (DPH) to include a review of compliance with nurse
staffing ratios and patient classification systems, deems a
hospital's failure to have a patient classification system to be
an immediate jeopardy violation subject to higher fine amounts,
and eliminates a requirement that DPH promulgate regulations
further defining the criteria for assessing administrative
penalties, thereby allowing existing fine authority to go into
effect.
Existing law:
1.Licenses and regulates health facilities by DPH.
2.Requires DPH to inspect for compliance with state laws and
regulations during a state periodic inspection or at the same
time as a federal periodic inspection. Requires, for general
acute care hospitals, acute psychiatric hospitals, and special
hospitals, the inspection to be conducted no less than once
every three years.
3.Requires DPH to adopt regulations that establish minimum,
specific, and numerical licensed nurse-to-patient ratios, by
licensed nurse classification and by hospital unit, for
hospitals, and requires these ratios to constitute the minimum
number of registered and licensed nurses that must be
allocated.
4.Establishes a structure under which DPH is permitted to assess
administrative fines to general acute care hospitals, acute
psychiatric hospitals, and special hospitals for violation of
any of their licensing laws and regulations. Requires DPH to
promulgate regulations establishing the criteria to assess
these administrative penalties, and requires these criteria to
include, but not be limited to, the following:
a. The patient's physical and mental condition;
Continued---
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b. The probability and severity of the risk that
the violation presents to the patient;
c. The actual financial harm to patients, if any;
d. The nature, scope, and severity of the
violation;
e. The facility's history of compliance with
related state and federal statutes and regulations;
f. Factors beyond the facility's control that
restrict the facility's ability to comply with state
law;
g. The demonstrated willfulness of the violation;
and
h. The extent to which the facility detected the
violation and took steps to immediately correct the
violation and prevent the violation from recurring.
5.Permits DPH, on the effective date of the regulations required
above, to assess an administrative penalty against a general
acute care hospital, acute psychiatric hospital, and special
hospital, for a deficiency constituting an immediate jeopardy
violation, as defined, up to a maximum of $75,000 for the
first administrative penalty, up to $100,000 for the second
administrative penalty, and up to $125,000 for the third and
every subsequent administrative penalty.
6.Permits DPH, on the effective date of the regulations, to
assess an administrative penalty of up to $25,000 per
violation for those not deemed to constitute immediate
jeopardy.
7.Prohibits DPH from assessing an administrative penalty for
minor violations.
8.Defines "immediate jeopardy" as a situation in which the
licensee's noncompliance with one or more requirements of
licensure has caused, or is likely to cause, serious injury or
death to the patient.
9.Permits DPH, prior to the effective date of the regulations
required above, to assess immediate jeopardy administrative
penalties of up $50,000 for the first administrative penalty,
up to $75,000 for the second administrative penalty, and up to
$100,000 for the third and every subsequent administrative
penalty.
10.Requires DPH to have full discretion to consider all factors
when determining the amount of an administrative penalty.
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This bill:
1.Requires that periodic DPH inspections of hospitals to ensure
compliance with state laws and regulations shall include a
review of compliance with nurse staffing ratios and patient
classification systems.
2.Codifies existing regulations requiring hospitals to maintain,
and annually update, a patient classification system,
including regulations requiring the annual updating to be done
by a review committee appointed by the nursing administration,
at least one-half of which is required to be registered nurses
who provide direct patient care.
3.Deems a hospital's failure to maintain a patient
classification system as an immediate jeopardy violation.
4.Deems a hospital's failure to comply with the patient
classification system, including annual updates, as a
non-immediate jeopardy violation.
5.Eliminates the requirement that DPH promulgate regulations
further defining criteria for assessing administrative fines,
so that existing law allowing fines of up to $25,000 for
non-immediate jeopardy violations, as well as higher immediate
jeopardy violation fine levels, can go into effect.
6.Adds compliance with staffing requirements, including patient
classification systems and nurse-to-patient ratios, to the
existing criteria by which DPH is required to consider to
determine the amount of an administrative penalty.
7.Requires the direct care nurses who are appointed to the
hospital committee which reviews the patient classification
system to be selected by the collective bargaining agent, if
any.
FISCAL EFFECT : This bill has not been analyzed by a fiscal
committee.
COMMENTS :
1.Author's statement. According to the author, under existing
law, there is no specific mechanism to ensure that hospitals
are complying with nurse staffing ratios or patient
classification systems, nor do hospitals face any penalties
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for failure to comply with these laws and regulations. SB
1246 will strengthen the existing nurse-to-patient staffing
ratio requirements in California hospitals by requiring DPH to
check for compliance during regular periodic inspections, and
by putting into effect existing statutory fine authority for
DPH by removing the requirement that DPH issue regulations.
Additionally, this bill codifies existing regulations relating
to patient classification systems, and authorizes an immediate
jeopardy fine for hospitals that have not established a
patient classification system - which has been a requirement
for hospitals for more than 15 years.
2.Nurse to patient ratios and patient classification systems.
In 2004, regulations implementing nurse-to-patient ratios in
California hospitals pursuant to AB 394 (Kuehl), Chapter 945,
Statutes of 1999, went into effect. However, long before
California had specific nurse-to-patient ratios, hospitals
were required by regulation to establish a patient
classification system. This patient classification system is
a method by which hospitals establish staffing requirements by
unit, patient, and shift, and includes a method by which the
amount of nursing care needed for each category of patient is
validated for each unit.
The regulations implementing the AB 394 nurse-to-patient ratios
law set the minimum ratio of nurses to patient by unit,
including one-to-one in operating rooms, one-to-two in
intensive care units, and one-to-five in general
medical-surgical units. These regulations also incorporated
the patient classification system requirement. In essence, the
specific nurse-to-patient ratios establish the minimum number
of nurses by unit, while the patient classification system
determines whether there needs to be a higher level of
staffing beyond the minimum ratio after taking into
consideration factors such as the severity of the illness, the
need for specialized equipment and technology, and the
complexity of clinical judgment needed to evaluate the patient
care plan, among other factors. The nurse-to-patient ratio
regulations require that the minimum ratios must be met at all
times.
Finally, the regulations require the reliability of the patient
classification system for validating staffing requirements to
be reviewed at least annually by a committee appointed by the
nursing administrator to determine whether the system
accurately measures patient care needs. At least half of the
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members of this committee are required to be registered nurses
who provide direct patient care.
3.DPH enforcement of nurse-to-patient staffing requirements
At an October 20, 2010 hearing of the Senate Health Committee on
DPHs implementation of recent patient safety legislation, DPH
testified that it does not inspect for compliance with
nurse-to-patient staffing ratios in the course of regular and
periodic inspections of hospitals. DPH stated that if it
identifies quality-of-care problems during routine
inspections, survey staff may look at nurse-to-patient
staffing ratios to determine if the hospitals' compliance with
the ratios is a factor. DPH also stated that it conducts large
numbers of complaint investigations alleging violations of
nurse-to-patient staffing ratios, and that it assigns these
complaints a higher priority for investigation because of the
potential for patients to be receiving inadequate care.
According to DPH, it has issued 465 deficiencies since January
2004 related to nurse-to-patient staffing ratios, and has
issued two hospitals penalties of $25,000 each for staffing
violations that it determined constituted immediate jeopardy
to patients, i.e. caused, or could have cause injury or death
to patients. DPH stated that it conducts follow-up surveys of
these deficiencies, on a case by case basis, depending on the
hospital's compliance history and the extent of the impact on
patient care of the deficiencies, but does not routinely
conduct follow-up surveys to determine if hospitals are
complying.
In response to concerns that it was not routinely inspecting
hospitals for compliance with patient safety requirements, DPH
in 2010 developed a Patient Safety Licensing Survey, which it
uses to assess hospitals' compliance with the requirements of
11 patient safety statutes enacted since 2006 during regular
and periodic inspections. Among the requirements that DPH
surveys for compliance on a regular basis are those pertaining
to hospital infection control procedures and practices and
discharge planning procedures. Compliance with hospital
nurse-to-patient staffing requirements is not part of the
patient safety survey.
4.Administrative penalties for hospitals. SB 1312 (Alquist),
Chapter 895, Statutes of 2006, gave DPH (formerly Department
of Health Services �DHS]) the authority to assess
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administrative penalties for violations of the laws pertaining
to the licensing of hospitals. Prior to SB 1312, DPH had very
limited authority to levy fines on hospitals that violated
state licensing laws. SB 1312 created two levels of penalties:
violations that constituted immediate jeopardy to the health
and safety of a patient, and violations that do not constitute
immediate jeopardy. SB 541 (Alquist), Chapter 605, Statutes of
2008, modified the administrative penalty provisions, and
increased the fine amounts. Immediate jeopardy violations are
now subject to a fine of up to $50,000 for the first
administrative penalty, $75,000 for the second penalty, and up
to $100,000 for the third and every subsequent violation. Once
regulations are adopted by DPH, these immediate jeopardy
penalties will increase to up to $75,000 for the first
penalty, $100,000 for the second penalty, and $125,000 for the
third and subsequent penalties. All other violations (except
minor violations, for which DPH is prohibited from assessing a
violation) are subject to a fine of up to $25,000.
SB 1312 required DPH to promulgate regulations establishing the
criteria to assess administrative penalties, and listed eight
factors on which to base the criteria, including the patient's
physical and mental condition, the nature, scope and severity
of the violation, and the demonstrated willfulness of the
violation. However, DPH is authorized to assess immediate
jeopardy penalties without waiting for the regulations; DPH
does not have this authority for non-immediate jeopardy
violations. Because DPH has still not promulgated the
regulations required by SB 1312, DPH does not have the ability
to assess the penalties of up to $25,000 for violations that
do not rise to the level of immediate jeopardy.
5.Related legislation. SB 554 (Yee) from 2011 proposed to
require DPH to inspect for compliance with nurse-to-patient
staffing ratios during periodic inspections of hospitals,
similar to this bill. SB 554 also proposed to require DPH to
inspect hospitals that have been cited for deficiencies
related to nurse-to-patient staffing ratios for their
compliance with the plan of correction. SB 554 also would
have required DPH to assess administrative penalties for
violations of nurse-to-patient staffing ratios and for failure
to comply with an approved plan of correction related to
nurse-to-patient ratios. The penalties included a $10,000
penalty for the fourth and each subsequent violation of the
nurse-to-patient ratio requirements within a six-month period,
and $10,000 for the failure of the hospital to comply with an
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approved plan of correction. These provisions were later
amended out of the bill.
6.Prior legislation. SB 541 (Alquist), Chapter 605, Statutes of
2008, increased the level of administrative penalties DPH may
assess against hospitals, including for deficiencies that
constitute immediate jeopardy to the health or safety of
patients. Requires health care facilities to prevent unlawful
or unauthorized access to use, or disclosure of, patients'
medical information, and to established safeguards protecting
the privacy of patients' medical information.
SB 1312 (Alquist), Chapter 895, Statutes of 2006, authorizes DHS
(now DPH) to assess administrative penalties on hospitals for
deficiencies constituting immediate jeopardy to the health and
safety of a patient and those that do not constitute immediate
jeopardy to patients.
SB 360 (Yee) of the 2009-10 Session would have required each new
direct care registered nursing hire to receive and complete an
orientation to the hospital and patient care unit in which he
or she will be working. Nurses who have not completed this
orientation would not be allowed to be assigned to direct
patient care or be counted as staff in computing
nurse-to-patient ratios. Held under submission in Senate
Appropriations Committee.
SB 1721 (Yee) of the 2007-2008 Session contained provisions that
were similar to the provisions of SB 360. Held in Assembly
Appropriations Committee.
SB 1760 (Kuehl), Chapter 148, Statutes of 2000, provided a
one-year extension for the adoption of regulations
establishing specified nurse-to-patient staff ratios in health
facilities.
AB 394 (Kuehl), Chapter 945, Statutes of 1999, required DPH to
adopt regulations specifying nurse-to-patient ratios, by unit,
for general acute care hospitals, acute psychiatric hospitals
and special hospitals. Required hospitals to adopt written
policies and procedures for nursing staff training. Provided
that the ratios shall constitute the minimum number of
registered and licensed nurses that must be provided; requires
hospitals to assign additional staff in accordance with a
documented patient classification system.
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7.Support. United Nurses Associations of California/Union of
Health Care Professionals (UNAC/UHCP), the sponsor of this
bill, states that this bill would protect consumers by
enforcing existing laws and regulations regarding nurse
staffing in hospitals. UNAC/UHCP states that DPH does not
survey for compliance with staffing requirements and cannot
fine a hospital that violates such requirements. According to
UNAC/UHCP, over the last decade, a considerable body of
academic literature has established that staffing in
compliance with the nurse-to-patient ratios required under
California law improves patient outcomes, yet DPH fails to
assure patients of the protections of law by failing to survey
for compliance with ratios and patient classification systems.
Additionally, UNAC/UHCP states that DPH has failed to avail
itself of the intermediate sanctions because of its abject
failure to move regulations forward. While UNAC/UHCP
understands that DPH has plans to adopt a variety of
regulations over the next decade, UNAC/UHCP argues that
patients can't wait and the law should be enforced.
8.Opposition. The California Hospital Association (CHA) opposes
this bill, stating that California hospitals have been
mandated to implement and maintain patient classification
systems for the past 16 years, and the practice is considered
a standard of care. CHA states that DPH routinely monitors
hospital compliance during their periodic inspections, and
that surveyors use reasonable judgment and just cause when
surveying to identify areas of concern. CHA states that this
may or may not include review of the patient acuity
classification system, and that additional mandatory review of
such practices as outline in this bill is unreasonable. CHA
also states that the $100,000 immediate jeopardy penalty
proposed by this bill for not having a patient classification
system is disproportionate to the value of the tool for the
successful care of patients. Finally, CHA is opposed to the
requirement that direct care nurses who are appointed to the
patient classification committee be selected by the collective
bargaining agent, if there is one at the hospital. CHA states
that hospitals are already required to have a patient
classification system committee with members appointed by the
Nursing Service Administrator. CHA states that while it
agrees that patient acuity is a concept that is essential to
patient safety, patient acuity classification systems have
numerous limitations and cannot be the only metric used for
staffing and cannot guarantee adequate staffing.
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SUPPORT AND OPPOSITION :
Support: American Federation of State, County and Municipal
Employees (co-sponsor)
United Nurses Associations of California/Union of
Health Care Professionals (co-sponsor)
Oppose: California Hospital Association
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