HOUSE BILL 68
54th legislature - STATE OF NEW MEXICO - second session, 2020
Joanne J. Ferrary and Linda M. Lopez and
Elizabeth "Liz" Thomson
RELATING TO HEALTH CARE; ENACTING THE PATIENT SAFE STAFFING ACT; REQUIRING HOSPITALS TO ESTABLISH NURSING STAFFING COMMITTEES AND FURTHER REQUIRING HOSPITALS TO IMPLEMENT THE STAFFING PLANS AND LEVELS DEVELOPED BY THE NURSING STAFFING COMMITTEES FOR ALL HOSPITAL NURSING UNITS; GIVING A NURSE THE RIGHT TO REFUSE AN ASSIGNMENT UNDER CERTAIN CIRCUMSTANCES; REQUIRING HOSPITALS TO POST AND REPORT THEIR DAILY HOSPITAL NURSING UNIT PATIENT CENSUS AND STAFFING LEVELS; REQUIRING HOSPITALS TO KEEP ALL RECORDS RELATED TO STAFFING AND NURSING STAFFING COMMITTEES' RECORDS FOR NO LESS THAN TEN YEARS; PROVIDING THE DEPARTMENT OF HEALTH WITH THE RESPONSIBILITY OF POSTING HOSPITAL REPORTS ON THE DEPARTMENT OF HEALTH'S WEBSITE FOR CONSUMERS; AUTHORIZING THE DEPARTMENT OF HEALTH TO ENFORCE COMPLIANCE WITH THE PATIENT SAFE STAFFING ACT THROUGH PENALTIES AND CORRECTIVE ACTION; AUTHORIZING THE DEPARTMENT OF HEALTH TO PROMULGATE RULES TO IMPLEMENT THE PATIENT SAFE STAFFING ACT; REQUIRING THAT ALL RECORDS HELD BY THE DEPARTMENT OF HEALTH RELATED TO HOSPITALS' NURSING STAFFING COMMITTEES AND PLANS DEVELOPED BY NURSING STAFFING COMMITTEES BE CONSIDERED PUBLIC RECORDS UNDER THE LAWS OF NEW MEXICO RELATIVE TO THE INSPECTION OF PUBLIC RECORDS ACT; PROVIDING WHISTLEBLOWER PROTECTION TO EMPLOYEES WHO FILE A GRIEVANCE OR COMPLAINT UNDER THE PATIENT SAFE STAFFING ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Patient Safe Staffing Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Patient Safe Staffing Act:
A. "committee" means a nursing staffing committee;
B. "department" means the department of health;
C. "hospital" means any general or special hospital licensed by the department, whether publicly or privately owned;
D. "nurse" means a registered nurse or a licensed practical nurse;
E. "patient abandonment" means a nurse's unilateral severance of an established nurse-patient relationship without giving reasonable notice in accordance with hospital policy so that arrangements can be made for continuation of nursing care by others;
F. "patient census" means the actual number of patients that occupy beds in a nursing unit and require nursing care, including patients awaiting discharge;
G. "scope of practice" means the parameters within which nurses practice, based upon education, experience, licensure, certification and expertise;
H. "staffing plan" means the staffing plan developed by the committee;
I. "unit" means a hospital nursing unit; and
J. "unlicensed assistive personnel" means a certified nursing assistant, a technician, an aide, a unit secretary, an orderly or any other unlicensed personnel who assist in the provision of direct patient care.
SECTION 3. [NEW MATERIAL] COMMITTEE REQUIRED.--
A. A hospital shall:
(1) have a committee, chaired by the director of nursing, with members of the committee appointed as follows:
(a) sixty percent of the committee members shall be nurses who provide direct patient care during at least fifty percent of their work time and who are not hospital nurse managers or hospital administrators and at least one of whom provides direct care in a nurse specialty unit. This sixty percent of the committee members shall be appointed by the employee organization legally representing the nurses at the hospital or, if the nurses are not represented by an employee organization, then the hospital shall provide for a secret ballot process by which nurses who are not deemed to be managers shall elect these committees; and
(b) the hospital shall appoint other persons whom it deems qualified to fill the remaining forty percent of the committee slots;
(2) charge its committee with developing staffing plans for each of the hospital's units;
(3) cause the staffing plans that the committee develops to be implemented;
(4) report electronically on an annual basis to the department the staffing plan and supporting documentation and records; and
(5) keep and maintain all documents and records related to the staffing and the committee's deliberations and actions for no less than ten years.
B. A hospital shall implement any changes to the staffing plan no later than six months after the committee has developed and submitted the changes to the plan to the hospital in accordance with the provisions of Section 4 of the Patient Safe Staffing Act.
C. A hospital's director of nursing shall use the staffing plan as the basis for all staffing decisions.
SECTION 4. [NEW MATERIAL] DUTIES OF COMMITTEE.--A committee shall:
A. develop, vote upon and submit a staffing plan for each of the hospital units to the hospital within six months after the appointment of the hospital's first appointed committee;
B. develop, vote upon and submit to the hospital within six months from the commencement of duties of the committee any subsequent plan or amendment to the current staffing plan;
C. select outcome indicators for each unit from among a national database of nursing quality indicators, a federal hospital comparison database, patient satisfaction surveys required under federal law and such other appropriate standards as determined by the committee;
D. conduct an annual or more frequent review of the staffing plan for each unit to update or modify the staffing plan as determined by the committee; and
E. conduct an annual or more frequent review of outcome indicators for each unit to update or modify the outcome indicators as determined by the committee.
SECTION 5. [NEW MATERIAL] NURSING STAFFING PLAN REQUIREMENTS.--
A. Each unit's staffing plan shall:
(1) establish staffing levels in accordance with the provisions of Section 6 of the Patient Safe Staffing Act;
(2) specify the minimum number of nurses and unlicensed assistive personnel required for each shift on the unit based upon the patient census, the level of intensity of care required by patients and the variability in the number of admissions, discharges and transfers under existing conditions;
(3) ensure that a nurse receives adequate orientation before being assigned to a unit; and
(4) specify circumstances, such as a declared state of emergency, under which compliance with the staffing plan may be temporarily waived.
B. A committee may take into account the size of the hospital and require the hospital to coordinate cross training for nurses and nursing support staff to be able to cross from one unit to another as the populations of units change.
SECTION 6. [NEW MATERIAL] NURSING STAFFING LEVELS.--
A. Nursing staffing levels shall take into consideration:
(1) recommendations from the hospital's chief nursing officer, direct patient care nurses, unlicensed assistive personnel, professional nursing organizations and other appropriate resources as determined by the committee;
(2) the characteristics of patients in each unit, including patient acuity as well as variability in the number of discharges, admissions and transfers per shift;
(3) available medical and health information technology and systems resources;
(4) the education, training and experience of nurses who provide direct patient care for the purpose of staffing a unit with an appropriate mix of more experienced and less experienced nurses based on patients' needs;
(5) the ability to meet the needs of the community being served; and
(6) such other appropriate factors as determined by the committee.
B. Nursing staffing levels for each unit shall be determined by majority vote of the committee.
C. A hospital shall formulate and adopt procedures for flexibility in nursing staffing levels determined by the committee during surges and declines in patient census.
D. A hospital shall not achieve nursing staffing levels by requiring its staff to work overtime.
SECTION 7. [NEW MATERIAL] RIGHT TO REFUSE ASSIGNMENT.--
A. A nurse may refuse an assignment exclusively under the following circumstances:
(1) the nurse lacks the requisite education, training and experience to ensure patient safety; or
(2) the assignment is outside the nurse's scope of practice.
B. Nothing in this section shall be construed to equate a nurse's refusal of an assignment with patient abandonment.
SECTION 8. [NEW MATERIAL] HOSPITAL POSTING AND REPORTING OF NURSING STAFFING LEVELS.--
A. Within one hour of the start of each shift, a hospital shall conspicuously post a daily report next to posted patient rights in each of its units that contains the:
(1) actual patient census for each shift in that unit;
(2) staffing level for each shift, according to the staffing plan for that unit; and
(3) actual staffing level for each shift in that unit.
B. The daily report shall include nurses and unlicensed assistive personnel working in the unit.
C. On a quarterly basis, a hospital shall electronically submit to the department for public disclosure on the department's website, on a date and in a format and form prescribed by the department, an accurate report containing the:
(1) information required in Subsection A of this section for each day of the previous quarter; and
(2) number of daily admissions, discharges and transfers for each shift of each unit.
SECTION 9. [NEW MATERIAL] DUTIES OF DEPARTMENT.--The department shall:
A. prescribe the format, form and due date for a hospital's quarterly submission of the report required of a hospital pursuant to Section 8 of the Patient Safe Staffing Act. The department shall require information contained in each hospital's quarterly reports to be reported in a uniform and clearly understandable format that permits consumers of hospital services to make meaningful comparisons of nursing staffing levels;
B. promptly publish each quarterly report required of a hospital pursuant to Section 8 of the Patient Safe Staffing Act on its internet website for public inspection;
C. perform an audit if the information contained in a quarterly report required of a hospital pursuant to Section 8 of the Patient Safe Staffing Act gives rise to a reasonable suspicion that there is a discrepancy in the report or that an inappropriate staffing level has occurred;
D. enforce a hospital's compliance with the provisions of the Patient Safe Staffing Act and with any related rules promulgated by the department to implement the provisions of that act through the imposition of penalties and corrective action, which information shall also be published on the department's website proximate to the quarterly reports required pursuant to Section 8 of the Patient Safe Staffing Act;
E. create a process pursuant to which:
(1) aggrieved persons may file complaints for violations of the provisions of the Patient Safe Staffing Act;
(2) the department investigates the facts alleged in these complaints; and
(3) the department issues a report and takes appropriate action to ensure that a hospital is in compliance with the provisions of the Patient Safe Staffing Act, department rules and any related orders;
F. promulgate such rules as are necessary to implement and enforce the provisions of the Patient Safe Staffing Act;
G. keep all records submitted to the department by hospitals pursuant to Section 3 of the Patient Safe Staffing Act for no less than ten years; and
H. maintain all records received pursuant to Section 3 of the Patient Safe Staffing Act for review by the public as provided in the Inspection of Public Records Act.
SECTION 10. [NEW MATERIAL] WHISTLEBLOWER PROTECTION.--A
hospital shall not discriminate or retaliate in any manner against an employee as a result of a grievance or complaint initiated by the employee relating to:
A. a committee or staffing plan;
B. the posting or reporting of, or the failure to post or report, daily nursing staffing level information required by the Patient Safe Staffing Act; and
C. the exercise of the right to refuse an assignment pursuant to the Patient Safe Staffing Act.
SECTION 11. [NEW MATERIAL] ACTIONS FOR VIOLATIONS--INJUNCTIVE RELIEF.--The attorney general or a party aggrieved or potentially aggrieved by a violation of the Patient Safe Staffing Act may file suit in the district court of any county for injunctive relief to enforce the provisions of the Patient Safe Staffing Act or department rules if it appears that the department is not enforcing the provisions of the Patient Safe Staffing Act or any department rule promulgated pursuant to that act.
SECTION 12. [NEW MATERIAL] NON-EXCLUSIVITY OF OTHER RIGHTS AND REMEDIES.--The rights and remedies provided for in the Patient Safe Staffing Act are not exclusive and shall be in addition to any other rights or remedies provided for in any
other law or available under common law.
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