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Feb 21, 2014

By Melissa L. McDonagh

For several years, nurses’ unions have lobbied, with varying success, for legislation implementing nurse-patient ratios.

The nurses’ unions contend that lower patient-to-nurse ratios improve quality patient care and decrease the mortality rate. While Medicare regulations require hospitals to maintain “an adequate number of licensed registered nurses, licensed practical nurses (LPN), and other personnel to provide nursing care to all patients as needed,” the ambiguous language regarding what is considered “adequate” has essentially left it to the states to regulate staffing.

Many bills, but no Congressional action to date

In 2013, it appeared this might change as several bills, including legislation to implement nurse — patient staffing requirements, were introduced in the U.S. House and Senate, including: the Registered Nurse Safe Staffing Act of 2013 (H.R. 1821); Nurse Staffing Standards for Patient Safety and Quality Care Act of 2013 (H.R. 1907); and the National Nursing Shortage Reform and Patient Advocacy Act (S. 739).

However, aside from referring them to committees in April and July of 2013, Congress has not taken any action on these bills. Therefore, it is unlikely that a federal bill mandating nurse-to-patient ratios will be enacted any time soon.

However, over the years legislation seeking to regulate nurse staffing has been introduced in a number of states. Connecticut, Illinois, Nevada, Ohio, Oregon, Texas and Washington all have implemented laws requiring hospitals to have staffing committees responsible for plans and staffing policy. Illinois, New Jersey, New York, Rhode Island and Vermont require certain disclosure/public reporting.

To date, California is the only state that has enacted legislation setting a nurse-to-patient ratio per unit in a health care facility. That could change in 2014 as bills filed in Florida and Massachusetts both include set nurse-to-patient ratios depending on the hospital unit.

More states pushing  to increase nurse staffing levels

On Feb. 12, 2014, the Florida Hospital Patient Protection Act was filed in the both houses of the Florida Legislature. Under the terms of this bill, the patient-to-nurse ratio would vary from five (5) patients to one (1) registered nurse in rehabilitation and skilled nursing units, to one patient per each registered nurse for patients in active labor, receiving conscious sedation, or in a trauma emergency unit or operating room unit.

The ratios would specifically require that the nurse be a registered nurse, not an LPN. The legislation would further forbid mandatory overtime; prohibit hospitals from laying off any LPNs, certified nursing assistants or other ancillary support staff in order to meet the registered nurse staffing levels; and provide whistleblower protection for any individual reporting a violation of the act.

Notably, this is the fifth attempt to introduce such legislation in the state of Florida. The prior attempts, dating back to 2010, have all died in committee.

Seeking to avoid this fate, the Massachusetts Nurses Association (MNA) took a different route to introduce its proposed law, the Patient Safety Act.

On Dec. 4, 2013, the MNA delivered 114,000 signatures, on a hospital gurney, to Commonwealth Secretary William Galvin’s office in support of a ballot initiative. Ballot initiatives must be accompanied by 68,911 certified signatures (equal to 3 percent of all the votes cast for governor in the most recent election).

A move for a Massachusetts ballot initiative

Secretary Galvin’s staff certified 90,826 signatures and forwarded the ballot initiative to the state legislature. If the Legislature rejects the initiative or fails to act, the MNA will have to collect 11,485 additional signatures and submit them to Secretary Galvin’s office on or before July 2. If successful, the initiative will be placed on the November 2014 ballot.

To become law, the initiative must receive 30 percent of the votes cast.

If successful, the additional nursing costs to hospitals would be substantial. The Massachusetts Health Policy Forum reported that while the MNA estimates the cost to be $268 million, the Massachusetts Hospital Association (MHA) projects it could reach $450 million.

In support of their ballot initiative, the Nurses Association contends that workload limits are critical as hospitals face increasing pressure to control the cost of care, while the state Hospital Association believes that required patient-nurse ratios undermine hospitals’ efforts to develop new staffing models to improve care, and that staffing decisions should be made by the entire health care team.

The American Nurses Association (ANA) is also against mandated nurse-patient ratios, instead supporting legislation that requires hospitals to create staffing plans specific to each hospital unit. The ANA believes this flexible approach allows hospital staff to take into account the intensity of a patient’s needs, level of experience of the nursing staff, availability of resources, and the number of admissions, discharges and transfer during a shift.

The Massachusetts Nursing Association ballot initiative will likely be closely watched by nurse unions across the country as they look to see whether this tactic proves more successful than the years of lobbying for bills that ultimately die in committee.

This was originally published on Littler Mendelson’s Healthcare Employment Counsel blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.