BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1246|
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UNFINISHED BUSINESS
Bill No: SB 1246
Author: Hernandez (D)
Amended: 7/5/12
Vote: 21
SENATE HEALTH COMMITTEE : 5-2, 4/18/12
AYES: Hernandez, Alquist, De Le�n, DeSaulnier, Wolk
NOES: Harman, Anderson
NO VOTE RECORDED: Blakeslee, Rubio
SENATE APPROPRIATIONS COMMITTEE : 5-2, 5/24/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
SENATE FLOOR : 21-15, 5/29/12
AYES: Alquist, Anderson, Corbett, De Le�n, DeSaulnier,
Hancock, Hernandez, Kehoe, Leno, Lieu, Liu, Lowenthal,
Negrete McLeod, Padilla, Pavley, Price, Simitian,
Steinberg, Vargas, Wolk, Wright, Yee
NOES: Berryhill, Blakeslee, Calderon, Cannella, Correa,
Dutton, Emmerson, Fuller, Gaines, Harman, Huff, La Malfa,
Strickland, Walters, Wyland
NO VOTE RECORDED: Evans, Rubio, Runner
ASSEMBLY FLOOR : 48-23, 8/21/12 - See last page for vote
SUBJECT : Health facilities: staffing
SOURCE : American Federation of State, County and
Municipal
Employees
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United Nurses Associations of California/Union
of Health
Care Professionals
DIGEST : This bill requires periodic inspections by the
Department of Public Health (DPH) to include a review of
compliance with nurse staffing ratios and patient
classification systems, 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.
Assembly Amendments delete language that states this bill
would provide that a failure to maintain and to comply with
the requirements of a patient classification system may be
subject to an administrative penalty and add requiring
general acute care hospitals to maintain a patient
classification system. The amendments repeal Section
1280.1 of the Health and Safety code and make other
technical changes.
ANALYSIS :
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.
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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 the facility's ability to comply with
state law.
G. The demonstrated willfulness of the violation.
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
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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.
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.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.
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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 not less than $2,500 and not to
exceed $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 limited to, nurse-to-patient ratios, to the
existing criteria by which DPH is required to consider to
determine the amount of an administrative penalty.
Background
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
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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.
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
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Assembly Appropriations Committee:
Increased staff costs for DPH's Licensing and
Certification division to check compliance with staffing
standards would likely cost $50,000 to $100,000 annually.
Costs could be higher if more complicated methods are
necessary to check compliance with staffing standards.
These costs would be fully offset by increased licensure
fees, which are updated annually to reflect actual
workload.
Unknown, potentially significant fee-supported special
fund costs associated with appeals for non-immediate
jeopardy penalties. If 100 non-immediate jeopardy
deficiencies resulted in fines that resulted in appeals,
increased costs to the Licensing and Certification Fund
of $1.8 million annually.
The actual number of appeals depends on the number of
deficiencies, the number of fines, and the likelihood of
hospitals appealing the fines. These variables are
unknown given a lack of history of assessing fines for
this type of violations. Hospitals indicate they would be
more likely to appeal if this bill were enacted, than if
the protocols for assessing non-immediate jeopardy fine
levels were developed through regulation.
Potential increased penalty revenue in the millions, or
potentially tens of millions of dollars. Penalty revenue
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may be increased for two reasons: immediate jeopardy
violations will have higher maximum penalty levels under
this bill as compared to the status quo, and DPH may
begin assessing penalties for other (non-immediate
jeopardy) violations under this bill sooner than they
would otherwise.
The issuance of regulations by DPH as required by current
law would also lead to similar increases in penalty
revenue. By removing the requirement for regulations,
this bill may accelerate enforcement and assessment of
penalties by six months to several years, depending on
when regulations would otherwise be finalized.
Penalty revenues collected for violations of state law
are deposited into the Internal Departmental Quality
Improvement Account, and may be expended for internal
quality improvement activities in the Licensing and
Certification Program.
SUPPORT : (Verified 5/25/12) (unable to reverify at time
of writing)
American Federation of State, County and Municipal
Employees (co-source)
United Nurses Associations of California/Union of Health
Care Professionals (co-source)
OPPOSITION : (Verified 5/25/12) (unable to reverify at
time of writing)
California Hospital Association
ARGUMENTS IN 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
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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.
ARGUMENTS IN 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.
ASSEMBLY FLOOR : 48-23, 08/21/12
AYES: Alejo, Allen, Atkins, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Buchanan, Butler, Charles
Calderon, Campos, Carter, Cedillo, Davis, Dickinson, Eng,
Feuer, Fletcher, Fong, Fuentes, Furutani, Gatto, Gordon,
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Hall, Hayashi, Hill, Huber, Hueso, Huffman, Lara, Bonnie
Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan, Perea,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Donnelly, Beth
Gaines, Garrick, Gorell, Grove, Halderman, Harkey,
Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell,
Nielsen, Norby, Olsen, Silva, Smyth, Wagner
NO VOTE RECORDED: Ammiano, Chesbro, Cook, Galgiani, Hagman,
Roger Hern�ndez, Nestande, V. Manuel P�rez, Valadao
CTW:RM:dn 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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