SB470: Bill Text

September 29, 2023 - Introduced by Senators Larson, Carpenter, Hesselbein and L. Johnson, cosponsored by Representatives Hong, Ratcliff, Shelton, Cabrera, Joers, J. Anderson, Sinicki, Stubbs, Palmeri, Clancy, C. Anderson, Ortiz-Velez and Subeck. Referred to Committee on Health.

SB470,,2 An Act to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 50.373, 103.035, 106.54 (10) (c) and 146.998 of the statutes; relating to: minimum nurse staffing ratios in hospitals, registered nurses’ right to refuse a work assignment, prohibiting mandatory overtime for registered nurses, and providing a penalty.

SB470,,3 Analysis by the Legislative Reference Bureau

This bill requires hospitals to develop and adhere to a plan for staffing registered nurses. Under the bill, the nurse staffing plan must meet certain standards, including being created and approved by a nurse staffing committee, the majority of which must be registered nurses in nonsupervisory positions; reviewed annually by the hospital; provided to the Department of Health Services annually, by a deadline set by DHS; and posted in every unit of the hospital and on the DHS website. The bill establishes minimum nurse-to-patient ratios that the hospital must maintain for each unit in the hospital. Under the bill, hospitals must keep for at least three years records of its nurse staffing ratios and actual staffing numbers.

Under the bill, a hospital that fails to provide DHS with its nurse staffing plan by the deadline set by DHS is subject to a civil penalty of $25,000. In addition, a hospital that fails to form a nurse staffing committee, annually review its nurse staffing plan, annually submit its nurse staffing plan to DHS, or adhere to required nurse-to-patient staffing ratios must submit a corrective action plan to DHS. Under the bill, a hospital may be subject to a civil penalty of $5,000 for each day the hospital fails to submit or comply with a corrective action plan.

In addition, the bill provides that registered nurses have the right to refuse a work assignment if the nurse, in good faith and in the nurse’s professional judgment, finds that the nurse is unable to fulfill the assignment without compromising patient safety or the nurse’s license. The bill creates a cause of action for a nurse against a hospital that disciplines, discharges, retaliates, discriminates, takes adverse action, or files a complaint with a disciplinary agency against a nurse that refuses to complete an assignment under those circumstances.

Under current law, subject to certain exceptions, an employer must pay an employee who receives an hourly wage one and one-half times the employee’s regular rate of pay for all hours worked in excess of 40 hours per week, but current law, with exceptions under child labor laws, does not prohibit an employer from requiring an employee to work in excess of 40 hours per week.

This bill prohibits a hospital from requiring a registered nurse to work overtime. Under the bill, overtime is work in excess of any of the following: 1) a regularly scheduled predetermined shift immediately following that shift; 2) 12 hours in a 24-hour period; or 3) 40 hours in a scheduled workweek.

The prohibition on mandatory overtime under the bill does not apply in cases in which the registered nurse is involved in an ongoing surgical procedure, the registered nurse’s presence is essential to the health and safety of a patient, the nurse is working in a critical care unit, or a public health emergency has been declared by the president of the United States or the governor, or during periods of adverse weather, catastrophe, or widespread illness within the hospital.

A registered nurse who is discharged or discriminated against for refusing to work overtime or for opposing a practice prohibited under the bill, for filing a complaint or attempting to enforce a right provided under the bill, or for testifying or assisting in any action or proceeding to enforce such a right may file a complaint with the Department of Workforce Development, and DWD must process the complaint in the same manner that employment discrimination complaints are processed under current law.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

SB470,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB470,1 Section 1. 50.373 of the statutes is created to read:

SB470,,6 50.373 Hospital nurse staffing requirements. (1) Definitions. In this section:

SB470,,7 (a) “Direct patient care” means any direct patient contact or treatment, including consultation, diagnostic tests and procedures, therapeutic procedures, pathological analyses and reports, and any other direct medical or health services.

SB470,,8 (b) “Nurse staffing plan” means a plan developed and provided to the department under sub. (2) (a).

SB470,,9 (c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).

SB470,,10 (2) Safe nurse staffing standards; nurse staffing plan. (a) A hospital shall provide to the department, by a date determined by the department, a nurse staffing plan for the upcoming year.

SB470,,11 (b) A hospital shall, in its nurse staffing plan, provide for a collaborative practice in the hospital that enhances patient care and the level of services provided by nurses and other members of the hospital’s patient care team.

SB470,,12 (c) A hospital shall include all of the following in its nurse staffing plan:

SB470,,13 1. A written certification that the nurse staffing plan is sufficient to provide adequate and appropriate delivery of health care services to patients during the year.

SB470,,14 2. The hospital’s employment practices concerning the use of temporary and traveling nurses.

SB470,,15 3. The hospital’s process for internal review of the nurse staffing plan.

SB470,,16 4. The hospital’s mechanism for obtaining input from staff that provide direct patient care, including registered nurses and other members of the hospital’s patient care team, in the development of the nurse staffing plan.

SB470,,17 5. The minimum registered nurse skill mix for each patient care unit in the hospital, including inpatient, critical care, and emergency department staffing.

SB470,,18 6. The method used by the hospital to determine and adjust direct patient care nurse staffing levels.

SB470,,19 7. The supporting personnel assisting on each patient care unit of the hospital.

SB470,,20 8. The number of registered nurses providing direct patient care and the ratio of registered nurses to patients in each care unit of the hospital.

SB470,,21 (d) A hospital shall provide in its nurse staffing plan that, at all times during each shift within a hospital unit, a registered nurse providing direct patient care is assigned to not more than the following number of patients in that hospital unit:

SB470,,22 1. Four patients in an emergency unit.

SB470,,23 2. Two patients in an intensive care emergency unit.

SB470,,24 3. Two trauma patients in a trauma emergency unit.

SB470,,25 4. Two patients in an intensive care unit.

SB470,,26 5. Three patients in a progressive care unit.

SB470,,27 6. Four patients in a telemetry unit.

SB470,,28 7. Five patients in a medical-surgical unit.

SB470,,29 8. Four patients in a pediatric unit.

SB470,,30 9. One patient in an operating room unit.

SB470,,31 10. Two patients in a postanesthesia care unit.

SB470,,32 11. Five patients in an oncology unit.

SB470,,33 12. Five patients in an orthopedic unit.

SB470,,34 13. Six patients in a psychiatry unit.

SB470,,35 14. Four patients in a labor obstetrics unit.

SB470,,36 15. Four patients in a postpartum obstetrics unit.

SB470,,37 16. Four patients in a nursery obstetrics unit.

SB470,,38 17. Two patients in a neonatal intensive care unit.

SB470,,39 (e) A hospital’s nurse staffing plan shall be approved by a majority vote of the members of the hospital’s nurse staffing committee under sub. (3).

SB470,,40 (f) A hospital, in collaboration with its nurse staffing committee, shall implement to the best of its ability the nurse staffing plan.

SB470,,41 (g) If staffing falls below the levels proposed in the nurse staffing plan for the previous reporting period, a hospital shall include, in its nurse staffing plan for the subsequent reporting period, a description of any differences between the staffing levels described in the previous staffing plan and the actual staffing levels for each patient care unit and any actions the hospital intends to take to address the differences or adjust staffing levels in future staffing plans.

SB470,,42 (h) A hospital shall post its nurse staffing plan on each unit of the hospital in a location that is visible, conspicuous, and accessible to staff, patients, and the public.

SB470,,43 (i) The department shall post each hospital’s nurse staffing plan on the department’s website.

SB470,,44 (3) Nurse staffing committee. (a) A hospital shall maintain a nurse staffing committee to assist in the preparation of its nurse staffing plan. The majority of the nurse staffing committee members shall be nonsupervisory registered nurses who are employed by the hospital and whose primary responsibility is to provide direct patient care.

SB470,,45 (b) In a hospital in which registered nurses providing direct patient care are included in a collective bargaining unit established under ch. 111, the representative of the collective bargaining unit shall select the registered nurse members of the nurse staffing committee, subject to the requirements under par. (a).

SB470,,46 (4) Nurse staffing records. (a) A hospital shall maintain accurate records of the actual ratios of registered nurses providing direct patient care to patients in each unit of the hospital during each shift for at least 3 years. The records must include the number of patients in each unit during each shift and the number of registered nurses assigned to provide direct patient care to each patient in each unit during each shift.

SB470,,47 (b) A hospital shall make the records under par. (a) available to the department and, upon request, to hospital staff, to a collective bargaining representative of hospital staff, to patients, and to the public.

SB470,,48 (5) Complaints. A hospital employee, patient, or member of the public may file a complaint with the department to report any suspected violation of subs. (2) to (4).

SB470,,49 (6) Hospital failure to comply with nurse staffing plan and reporting requirements; corrective action; penalties. (a) Nurse staffing plan deadline; penalty. The department shall review each nurse staffing plan provided by a hospital under sub. (2) (a) to ensure it is received by the date determined by the department under sub. (2) (a). A hospital that fails to submit a nurse staffing plan by the date determined by the department under sub. (2) (a) shall forfeit $25,000.

SB470,,50 (b) Corrective plan of action; penalty. 1. The department shall investigate a complaint received under sub. (5) that is accompanied with documented evidence of a hospital’s failure to establish a nurse staffing committee, conduct an annual review of a nurse staffing plan, submit a nurse staffing plan on an annual basis, or meet the nurse staffing levels provided under sub. (2) (d) in violation of sub. (2), (3), or (4).

SB470,,51 2. If, after an investigation, the department determines a violation has occurred, the department shall present its findings to the hospital and require the hospital to submit a corrective plan of action within 45 days from the time the department presented its findings to the hospital.

SB470,,52 3. If a hospital fails to submit or follow a corrective plan of action, the hospital may be required to forfeit $5,000 for each day that the hospital fails to submit or follow the corrective plan of action. The forfeitures under this subdivision shall accrue until the hospital submits and follows for 90 days a corrective plan of action that has been approved by the department. If the hospital follows the corrective plan of action for 90 days, the department may reduce the forfeiture amount accrued under this subdivision.

SB470,,53 (c) Posting violations. The department shall post on its website a report of violations of subs. (2) to (4) and maintain for public inspection records of any civil penalties and administrative actions imposed on hospitals under this subsection.

SB470,2 Section 2. 103.035 of the statutes is created to read:

SB470,,55 103.035 Mandatory overtime for registered nurses in hospitals prohibited; exceptions. (1) Definitions. In this section:

SB470,,56 (a) “Hospital” has the meaning given in s. 50.33 (2).

SB470,,57 (b) “Overtime” means any of the following:

SB470,,58 1. Time worked in excess of a regularly scheduled daily work shift that has been determined and agreed to before the performance of the work, immediately following the regularly scheduled daily work shift.

SB470,,59 2. Time worked in excess of 12 hours in a 24-hour period.

SB470,,60 3. Time worked in excess of 40 hours in a previously determined workweek.

SB470,,61 (c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).

SB470,,62 (2) Mandatory overtime prohibited. (a) Except as provided in par. (b), no hospital may require a registered nurse to work overtime.

SB470,,63 (b) A hospital may require a registered nurse to work overtime only in one of the following instances:

SB470,,64 1. The hospital has determined that the safety of a patient requires that a registered nurse work overtime and the hospital has found that no reasonable alternative exists.

SB470,,65 2. The registered nurse is working in an ongoing surgical procedure at the time the hospital requires the nurse to work overtime.

SB470,,66 3. The registered nurse is working in a critical care unit and is required to work overtime until the nurse is relieved by another scheduled registered nurse.

SB470,,67 4. During any time that the president of the United States declares a public health emergency under 50 USC 1621 that affects the region of this state in which the hospital is located.

SB470,,68 5. During any time that the governor declares a public health emergency under s. 323.10 that affects the region of this state in which the hospital is located.

SB470,,69 6. During any time of adverse weather conditions, catastrophe, or widespread illness within the hospital.

SB470,,70 (3) Voluntary coverage. Before requiring a registered nurse to work overtime under sub. (2) (b), the hospital shall make a good faith effort to have those work hours covered on a voluntary basis.

SB470,,71 (4) Right to refuse mandatory overtime. A registered nurse may refuse to work overtime if the nurse believes in good faith that the hospital has not made a good faith effort to fill the work hours covered by the overtime mandate. A hospital may not discharge, retaliate, or discriminate in promotion, in compensation, or in the terms, conditions, or privileges of employment against the registered nurse for refusing to work the overtime.

SB470,,72 (5) Enforcement. A registered nurse who is discharged, retaliated, or discriminated against in violation of sub. (4) may file a complaint with the department, and the department shall process the complaint in the same manner that employment discrimination complaints are processed under s. 111.39. If the department finds that a hospital has violated sub. (4), the department may order the hospital to take such action under s. 111.39 as will effectuate the purpose of this section. Section 111.322 (2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this subsection.

SB470,3 Section 3. 106.54 (10) (c) of the statutes is created to read:

SB470,,74 106.54 (10) (c) The division shall receive complaints under s. 103.035 (5) and shall process the complaints in the same manner as employment discrimination complaints are processed under s. 111.39.

SB470,4 Section 4. 111.322 (2m) (a) of the statutes is amended to read:

SB470,,76 111.322 (2m) (a) The individual files a complaint or attempts to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.

SB470,5 Section 5. 111.322 (2m) (b) of the statutes is amended to read:

SB470,,78 111.322 (2m) (b) The individual testifies or assists in any action or proceeding held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998, or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.