SECOND REGULAR SESSION
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES BURNETT (Sponsor), SCHAAF, LeVOTA AND PAGE (Co-sponsors).
Read 1st time March 8, 2006 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To amend chapter 197, RSMo, by adding thereto one new section relating to the safe patient care act, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Chapter 197, RSMo, is amended by adding thereto one new section, to be known as section 197.290, to read as follows:
197.290. 1. This section shall be known and may be cited as the "Safe Patient Care Act".
2. The general assembly finds that:
(1) The state of Missouri is experiencing a critical shortage of qualified, competent health care workers. As a result, registered nurses are increasingly required to work back-to-back eight-hour shifts, or four hours in addition to a twelve-hour shift due to understaffed hospitals using mandatory overtime as a routine way to staff their facilities;
(2) The use of mandatory overtime has led many nurses to leave hospital jobs because they are unable to give patients high quality care, contributing to a growing shortage of nurses;
(3) The widespread practice of requiring health care workers to work extended shifts and forego days off causes health care workers to frequently provide care in a state of fatigue, contributing to medical errors and other consequences that compromise patient safety;
(4) The use of mandatory overtime puts severe pressure on families, as many nurses who care for children or aging parents at home are unexpectedly required to work additional hours beyond their scheduled shift;
(5) To safeguard the health of patients as well as the health, efficiency, and general well-being of health care workers, as a matter of public policy, mandatory overtime should be prohibited except in the case of unforeseeable emergency to ensure that the public will continue to receive safe, quality care; and
(6) Limitations on mandatory overtime will ensure that health care facilities throughout the state operate in a manner that safeguards public safety, guarantees the delivery of quality health care services, and facilitates the retention and recruitment of health care workers.
3. As used in this section, the following terms shall mean:
(1) "Employee", an individual employed by a health care facility who is involved in direct patient care activities or clinical services, but shall not include physicians;
(2) "Employer", an individual, partnership, association, corporation, or person or group of persons acting directly or indirectly in the interest of the health care facility;
(3) "Health care facility", a health care facility licensed in this state, a developmental disability or rehabilitation center, blood bank, assisted living facility, or any agency licensed or registered with the state or local government to provide health or mental health care;
(4) "On-call time", time spent by an employee who is not currently working on the premises of the place of employment but who is compensated for availability, or as a condition of employment has agreed to be available, to return to the premises of the place of employment on short notice if the need arises;
(5) "Overtime", the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift or hours worked in excess of twelve hours in a twenty-four-hour period or eighty hours in a consecutive fourteen-day period;
(6) "Qualified", employees with requisite credentials in the same job classification;
(7) "Reasonable efforts", the employer shall:
(a) Seek persons who volunteer to work extra time from all available qualified staff who are working at the time of the unforeseeable emergency circumstance;
(b) Contact all qualified employees who have made themselves available to work extra time; and
(c) Seek the use of qualified per diem or agency staff;
(8) "Unforeseeable emergency circumstance", any unforeseen declared nations, state, or municipal emergency or disaster, or other catastrophic event which substantially affects or increases the need for health care services.
4. (1) The requirement or attempt to compel, coerce, or force an employee of a health care facility to work overtime, except in the case of an unforeseeable emergency circumstance, is contrary to public policy and any such requirement contained in a contract, agreement, or understanding is void.
(2) The acceptance by any employee of overtime is strictly voluntary.
(3) No employer shall retaliate; discriminate; discharge; dismiss; threaten; report to any regulatory agency, licensing authority, or accrediting body; or engage in any other adverse employment action against an employee who:
(a) Refuses to accept overtime work, and reporting by the employer of a health care worker to a state regulatory board after the employee refuses to accept overtime work shall be considered prima facie evidence of retaliatory conduct; or
(b) a. Reports a violation or suspected violation of this section;
b. Initiates, cooperates, or otherwise participates in an investigation or proceeding brought by a regulatory agency, licensing authority, or accrediting body concerning matters covered by this section; or
c. Informs or discusses with other employees, with representatives of such employees, or with representatives of associations of health care professionals, violations or suspected violations of this subsection.
(4) The provisions of this section shall not apply in the case of unforeseeable emergency circumstances where:
(a) The employer has exhausted all reasonable efforts to obtain staffing; and
(b) Overtime is not required to fill vacancies resulting from chronic staff shortages.
The requirement that the employer shall exhaust reasonable efforts to obtain staffing shall not apply in the event of any declared national, state, or municipal disaster, or other catastrophic event which substantially affects or increases the need for health care services. In the event of such unforeseeable circumstances, the employer shall provide the employee with such necessary time of not less than one hour prior to the commencement of overtime work to arrange for the care of the employee's minor children, or sick, elderly, or disabled family members.
(5) If an employer requires an employee to work overtime under subdivision (4) of this subsection, the employer shall document in writing the reasonable efforts the employer has used to obtain staffing. Such documentation shall be made available for review by the department of health and senior services.
(6) The provisions of this section shall not be construed to impair or negate any employer-employee collective bargaining agreement or any other employer-employee contract in effect on August 28, 2006.
(7) Nothing in this section shall be construed to permit an employer to use on-call time as a substitute for mandatory overtime.
5. (1) The department of health and senior services may investigate complaints of violations of subsection 4 of this section and may issue notices and citations as provided in this section. An employee may file a complaint with the department of health and senior services against a health care facility that violations the provisions of this section.
(2) Upon investigation, the department shall notify the health care facility of all deficiencies in its compliance with this section and the rules adopted thereunder. Such notice may include an order to take corrective action within a specific time, including but not limited to:
(a) Revising the facility staffing plan;
(b) Reducing the number of patients within a health care facility;
(c) Temporarily closing a health care facility, department, or unit; or
(d) Temporarily transferring patients to another health care facility, department, or unit within the facility until corrections are made.
(3) An employer that violates the provisions of subsection 4 of this section shall be subject to citation and a civil penalty not to exceed ten thousand dollars per violation. An employer that violates any provision of subsection 4 of this section on four or more occasions shall be subject to a citation and a civil penalty not to exceed fifteen thousand dollars per violation.
(4) In addition to the penalties set forth in subdivision (3) of this subsection:
(a) An employer that violates subdivision (4) of subsection 4 of this section shall be liable for providing the employee with reinstatement, promotion, payment of lost wages and benefits, and such other equitable relief as may be appropriate; and
(b) The department of health and senior services is authorized, after notice and opportunity for a hearing, to suspend or revoke the license of a health care facility that repeatedly violates the provisions of subsection 4 of this section.
6. (1) Each health care facility shall post, and maintain posted, a notice of the definitions, prohibitions, investigatory actions, sanctions, and remedies required in this section in a public place. The department of health and senior services shall prescribe the format of the notice within six months of the effective date of this section. The notice shall include, but is not limited to, the following language: "This facility is prohibited from taking any action against any employee involved in direct patient care activities or clinical services who declines to work additional hours at the facility in excess of the normal work period.". The notice shall also include a statement that an employee may file a complaint with the department of health and senior services against a health care facility that violates the provisions of this section, as well as information about how to file such a complaint.
(2) A health care facility that fails to post the notice required under subdivision (1) of this subsection within ten days of the publication of the regulations contained in subdivision (1) of this subsection shall be subject to a fine of one thousand dollars per day for each day that the required notice is not posted.
7. The department of health and senior services, in consultation with the attorney general, shall adopt rules within six months of the effective date of this section to implement the provisions of this section. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after August 28, 2006, shall be invalid and void.
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