BILL ANALYSIS �
SB 1246
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 1246 (Ed Hernandez) - As Amended: May 25, 2012
SENATE VOTE : 21-15
SUBJECT : Health facilities: staffing.
SUMMARY : Requires the Department of Public Health (DPH), during
its periodic inspections of hospitals, to review compliance with
existing nurse staffing ratios and patient classifications
systems. Eliminates the requirement that DPH promulgate
regulations further defining criteria for assessing
administrative penalties for non-immediate jeopardy violations.
Specifically, this bill :
1)Requires that periodic DPH inspections of hospitals include a
review of compliance with nurse staffing ratios and patient
classification systems.
2)Codifies existing regulations requiring hospitals to develop,
maintain, and annually update patient classification systems.
3)Codifies existing regulations requiring an annual review of
the reliability of the patient classification system by a
committee appointed by a hospital nursing administrator to
determine whether or not the patient classification system
accurately measures patient care needs.
4)Requires registered nurses appointed to the hospital's patient
classification review committee referenced in 3) above to be
selected by the collective bargaining agent, if the registered
nurses are represented.
5)Eliminates the requirement that DPH promulgate regulations
further defining criteria for assessing administrative
penalties up to $25,000 for non-immediate jeopardy violations.
6)Eliminates the requirement that DPH promulgate regulations
which allow higher immediate jeopardy violation penalty levels
to go into effect.
7)Adds compliance with staffing requirements, including, but not
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limited to, 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.
EXISTING LAW :
1)Establishes that DPH licenses and regulates health facilities.
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;
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
their 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)Defines "immediate jeopardy" as a situation in which a DPH
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licensee's noncompliance with one or more requirements of
licensure has caused, or is likely to cause, serious injury or
death to the patient.
6)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.
7)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.
8)Prohibits DPH from assessing an administrative penalty for
minor violations.
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.
FISCAL EFFECT : According to the Senate Appropriations Committee
analysis of a previous version of this bill, the fiscal impact
will result in absorbable costs to review compliance with
staffing ratios and patient classification systems as part of
ongoing inspection activities.
COMMENTS :
1)PURPOSE OF THIS BILL. 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
for failure to comply with these laws and regulations. The
author maintains that this bill will strengthen the existing
nurse-to-patient staffing ratio requirements in California
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hospitals by requiring DPH to check for compliance during
regular periodic inspections, and by putting into effect
existing statutory penalty authority for DPH by removing the
requirement that DPH issue regulations. Additionally, the
author asserts that this bill codifies existing regulations
relating to patient classification systems, which has been a
requirement for hospitals for more than 15 years.
2)NURSE STAFFING 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
members of this committee are required to be registered nurses
who provide direct patient care.
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3)ADMINISTRATIVE PENALTY . Administrative penalties are civil
monetary penalties assessed against hospitals after an
investigation of a facility's non-compliance with licensure
that results in the finding of an immediate jeopardy
violation. Immediate jeopardy incidents are investigated and
penalties are assessed by DPH's Licensing and Certification
Division. All penalties collected are deposited in DPH's
Licensing and Certification Program Fund. Facilities can
appeal administrative penalties by requesting a hearing within
10 calendar days of notification of the deficiency. If a
hearing is requested, the penalties are to be paid when all
appeals have been exhausted and DPH's position has been
upheld. In addition to the penalties, the facility is
required to implement a plan of correction to prevent future
incidents.
SB 1312 (Alquist), Chapter 895, Statutes of 2006, gave DPH
(formerly Department of Health Services �DHS]) the authority
to assess 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.
4)DPH TIMELINE FOR REGULATIONS . 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
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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. However, according to DPH, regulations
are currently under development to provide this authority and
will be released for public comment in October 2012. DPH
indicates that it expects that regulations will be filed with
the Secretary of State in May of 2013 with an effective date
in June of 2013. The proposed regulations will provide
specific, clarifying guidelines to assess all administrative
penalty amounts.
5)SUPPORT . The United Nurses Associations of California/Union
of Health Care Professionals (UNAC/UHCP), an affiliate of the
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO and the sponsors of this bill, writes in
support that this bill would protect patients by enforcing
existing laws and regulations regarding nurse staffing in
hospitals. UNAC/UHCP argues that most of the requirements in
this bill have been in place for decades, yet DPH does not
survey for compliance with the requirements and cannot fine a
hospital that violates such requirements. UNAC/UHCP asserts
that research indicates that staffing in compliance with the
nurse ratios required under California law improves patient
outcomes, yet DPH fails to assure patients of the protections
of law. UNAC/UHCP argues that patients and nurses can no
longer wait for DPH to promulgate regulations and that the law
should be enforced and hospitals that fail to obey the law
should risk fines.
6)OPPOSITION . The California Hospital Association (CHA) and 53
hospitals across the state write in opposition 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 outlined in this bill is
unreasonable. Finally, CHA is opposed to the requirement that
direct care nurses who are appointed to the patient
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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.
The California Nurses Association (CNA) writes in opposition
that this bill is ineffective because maintaining, reviewing,
and staffing according to the patient classification systems
as it reflects patient care needs for hospitals is already
current law. CNA argues that the administrative penalties in
this bill are permissive and not mandatory watering down the
power of enforcement. CNA asserts that they sponsored SB 554
(Yee) in 2011 that would have mandated administrative
penalties for multiple deficiency notices violating staffing
standards and mandated additional penalties for a facility's
failure to fulfill obligation under the Plan of Correction for
Notices of Deficiencies. CNA argues that they held SB 554 in
abeyance in response to the Administration's request to allow
newly appointed administrative leadership to address concerns
through its administrative and regulatory authority.
7)RELATED LEGISLATION . SB 554 (Yee) of 2011 would have required
DPH to inspect for compliance with nurse-to-patient staffing
ratios during periodic inspections of hospitals, similar to
this bill. SB 554 also would have required 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
approved plan of correction. These provisions were later
amended out of the bill.
8)PREVIOUS LEGISLATION :
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a) 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.
b) 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.
c) SB 360 (Yee) of 2009 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. Would have prohibited nurses
who have not completed this orientation from being assigned
to direct patient care or be counted as staff in computing
nurse-to-patient ratios. SB 360 was held under submission
in the Senate Appropriations Committee.
d) SB 1721 (Yee) of 2008 contained provisions that were
similar to the provisions of SB 360. SB 1721 was held in
the Assembly Appropriations Committee.
e) SB 1760 (Kuehl), Chapter 148, Statutes of 2000, provides
a one-year extension for the adoption of regulations
establishing specified nurse-to-patient staff ratios in
health facilities.
f) AB 394 (Kuehl), Chapter 945, Statutes of 1999, requires
DPH to adopt regulations specifying nurse-to-patient
ratios, by unit, for general acute care hospitals, acute
psychiatric hospitals, and special hospitals. Requires
hospitals to adopt written policies and procedures for
nursing staff training. Provides that the ratios shall
constitute the minimum number of registered and licensed
nurses that must be provided; and, requires hospitals to
assign additional staff in accordance with a documented
patient classification system.
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9)POLICY COMMENTS .
a) Administrative regulations serve the important purpose
of assisting state agencies to implement and interpret the
law. This bill eliminates the requirement in existing law
that DPH promulgate regulations for assessing hospital
administrative penalties up to $25,000 for non-immediate
jeopardy violations. Absent this regulatory requirement,
clarifying information that further defines criteria for
assessing hospital administrative penalties for
non-immediate jeopardy violations will not be available.
The Committee may wish to suggest an amendment authorizing
a range of up to $25,000, with a minimum requirement of
$2,500, in order to signal to DPH that the intent of this
penalty is to be applied across the range and not to be
applied at the maximum amount for every violation.
b) The definition for "patient classification system"
currently in this bill is a partial reference to the
definition currently in regulations. The author may wish
to either delete the reference to the definition in this
bill or amend this bill to codify the regulatory definition
in its entirety to avoid confusion.
10)TECHNICAL AMENDMENTS .
a) On page 4, line 31 delete (3) and insert: (c).
b) On page 6, line 5 and 6 delete reference to Article 3 of
Part 2 of Division 107 and instead insert: Article 1 of
Chapter 2.5 of Part 2 of Division 107.
c) Reconcile the conflict between Health and Safety Code
Section 1280.3 currently in this bill and existing law
Health and Safety Code Section 1280.1.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees,
AFL-CIO (co-sponsor)
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United Nurses Association of California/Union of Health Care
Professionals (co-sponsor)
Opposition
Adventist Health Central Valley Network
Alhambra Hospital Medical Center
Arroyo Grande Community Hospital
Bakersfield Memorial Hospital
Brotman Medical Center
California Hospital Association
California Nurses Association
Centinela Hospital Medical Center
Children's Hospital Central California
Chinese Hospital
Citrus Valley Health Partners
Coalinga Regional Medical Center
Coast Plaza Hospital
College Hospital
Colusa Regional Medical Center
Community Hospital of Huntington Park
Community Hospital of the Monterey Peninsula
Community Medical Centers
Cottage Health System
Dominican Hospital
Eastern Plumas Health Care
El Centro Regional Medical Center
Feather River Hospital
Fremont-Rideout Health Group
French Hospital Medical Center
Glendale Adventist Medical Center
Glendale Memorial Hospital
Health Services Los Angeles County
Henry Mayo Newhall Memorial Hospital
Hollywood Presbyterian Medical Center
Hospital Corporation of America
Kaweah Delta Health Care District
La Palma Intercommunity Hospital
Long Beach Memorial/Miller Children's Hospital
Los Alamitos Medical Center
Madera Community Hospital
Marian Regional Medical Center
Mee Memorial Hospital
MemorialCare Health System
Mercy Hospital of Folsom
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Mercy Hospitals of Bakersfield
Mills-Peninsula Health Services
Mission Hospital Mission Viejo
Montclair Hospital Medical Center
Nursing Leadership Council
Olympia Medical Center
Orange Coast Memorial
Petaluma Valley Hospital
Pomona Valley Hospital
Providence Health & Services Southern California
Providence Little Company of Mary Medical Center San Pedro
Queen of the Valley Medical Center
Redwood Memorial Hospital
Rideout Memorial Hospital
Riverside Community Hospital
Saddleback Memorial
Saint Agnes Medical Center
Saint Francis Memorial Hospital
San Gabriel Valley Medical Center
San Gorgonio Memorial Hospital
San Joaquin Community Hospital
San Joaquin County Board of Supervisors
Santa Rosa Memorial Hospital
Seneca Healthcare District
Sequoia Hospital
Sharp HealthCare
Sharp Memorial Hospital
Shasta Regional Medical Center
Sierra Nevada Memorial Hospital
Simi Valley Hospital
Sonora Regional Medical Center
St. Bernardine Medical Center
St. Elizabeth Community Hospital
St. Helena Hospital Clear Lake
St. Helena Hospital Napa Valley
St. Joseph Hospital Eureka
St. Joseph Hospital Orange
St. Joseph's Behavioral Health Center
St. Jude Medical Center Fullerton
St. Mary Medical Center Long Beach
St. Mary's Medical Center Antelope Valley
St. Rose Hospital Hayward
Stanford Hospital & Clinics
Sutter Amador Hospital
Sutter Delta Medical Center
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Sutter Medical Center of Santa Rosa
Torrance Memorial Medical Center
Tulare Regional Medical Center
Ukiah Valley Medical Center
United Hospital Association
West Anaheim Medical Center
Western Medical Center Anaheim
White Memorial Medical Center
One Individual
Analysis Prepared by : Tanya Robinson-Taylor / HEALTH / (916)
319-2097