Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect those facilities for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, for a deficiency constituting an immediate jeopardy violation, as specified.

Existing law requires certain penalties collected by the department to be deposited into the Internal Departmental Quality Improvement Account, to be expended, upon appropriation, for internal quality improvement activities in the Licensing and Certification Program.

This bill would require the department to assess specified penalties for a violation of the nurse-to-patient ratios and staff assignment regulations described above. The bill would require those penalty moneys to be deposited into the State Department of Public Health Licensing and Certification Program Fund, to be expended, upon appropriation, for the purpose of enforcing those regulations.

Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect those facilities for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, for a deficiency constituting an immediate jeopardy violation, as specified.

Existing law requires certain penalties collected by the department to be deposited into the Internal Departmental Quality Improvement Account, to be expended, upon appropriation, for internal quality improvement activities in the Licensing and Certification Program.

This bill would require the department to assess specified penalties not to exceed $125,000 for a violation of the nurse-to-patient ratios and staff assignment regulations described above. The bill would require those penalty moneys to be deposited into the State Department of Public Health Licensing and Certification Program Fund, to be expended, upon appropriation, for the purpose of enforcing those regulations. The bill would specify that a violation of these regulations is not a crime. The bill would also make technical and conforming changes.

Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect those facilities for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, for a deficiency constituting an immediate jeopardy violation, as specified.

Existing law requires certain penalties collected by the department to be deposited into the Internal Departmental Quality Improvement Account, to be expended, upon appropriation, for internal quality improvement activities in the Licensing and Certification Program.

This bill would repeal the obsolete provisions that authorize the assessment of administrative penalties not to exceed $100,000 until specified regulations are adopted. The bill, notwithstanding the latter administrative penalty provisions described above, would instead require the department to assess specified penalties not to exceed $125,000 for violations a violation of the nurse-to-patient ratios and staff assignment regulations described above. The bill would require those penalty moneys to be deposited into the State Department of Public Health Licensing and Certification Program Fund, to be expended, upon appropriation, for the purpose of enforcing those regulations. The bill would specify that a violation of these regulations is not a crime. The bill would also make technical and conforming changes.

Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect those facilities for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, as specified.

This bill would repeal the obsolete provisions that authorize the assessment of administrative penalties not to exceed $100,000 until specified regulations are adopted. The bill, notwithstanding the latter administrative penalty provisions described above, would instead require the department to assess specified penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations described above and above. The bill would require those penalty moneys to be deposited into the State Department of Public Health Licensing and Certification Program Fund, to be expended, upon appropriation, for the purpose of enforcing those regulations. The bill would specify that a violation of these regulations is not a crime. The bill would also make technical and conforming changes.

Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect those facilities for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, as specified.

This bill would repeal the obsolete provisions that authorize the assessment of administrative penalties not to exceed $100,000 until specified regulations are adopted. The bill, notwithstanding the latter administrative penalty provisions described above, would instead require the department to assess specified penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations described above and would specify that a violation of these regulations is not a crime. This The bill would also make technical and conforming changes.

Existing law establishes the State Department of Public Health and sets forth its powers and duties, including, but not limited to, the licensing and regulation of health facilities, as defined. Existing law requires that every health facility for which a license or special permit has been issued be periodically inspected by the State Department of Public Health, or by another governmental entity under contract with the department. Existing law requires the department to inspect for compliance with provisions of state law and regulations during a state periodic inspection, or at the same time as a federal periodic inspection.

Existing law requires the department to adopt regulations governing the operation of a health facility, including, but not limited to, regulations that require prescribed health facilities to meet minimum nurse-to-patient ratios, and to assign additional staff according to a documented patient classification system for determining nursing care requirements. Violation of these provisions, or willful or repeated violation of the rules or regulations, is a crime.

This bill would require state periodic inspections of health facilities to include reviews of compliance with the nurse-to-patient ratios and staff assignment regulations described above. The bill would require the department to ensure that these inspections are not announced in advance of the date of inspection.

Existing law requires the department to promulgate regulations establishing criteria to assess an administrative penalty against a general acute care hospital, acute psychiatric hospital, or special hospital. Until the effective date of specified regulations, existing law authorizes the department to assess the licensee an administrative penalty not to exceed $100,000, as specified, when a licensee of a hospital receives a notice of deficiency constituting an immediate jeopardy to the health or safety of a patient and is required to submit a plan of correction. After the effective date of these specified regulations, existing law authorizes the department to assess administrative penalties not to exceed $125,000, as specified.

This bill would repeal the obsolete provisions that authorize the assessment of administrative penalties not to exceed $100,000 until specified regulations are adopted. The bill, notwithstanding the latter administrative penalty provisions described above, would require the department to assess specified penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations described above and would specify that a violation of these regulations is not a crime. This bill would also make technical and conforming changes.

 VETO  

Bill No: SB 1288

Author: , et al.

:

Vote:

SENATE HEALTH COMMITTEE: 7-2, 4/18/18

AYES: Hernandez, Leyva, Mitchell, Monning, Newman, Pan, Roth

NOES: Nguyen, Nielsen

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/22/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SENATE FLOOR: 22-13, 5/29/18

AYES: Allen, Atkins, Beall, Bradford, De León, Dodd, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Newman, Pan, Portantino, Skinner, Wieckowski, Wiener

NOES: Anderson, Bates, Cannella, Fuller, Gaines, Glazer, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak, Wilk

NO VOTE RECORDED: Berryhill, Galgiani, Roth, Stern

SENATE FLOOR: 25-14, 8/29/18

AYES: Allen, Atkins, Beall, Bradford, De León, Delgado, Dodd, Galgiani, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Skinner, Stern, Wieckowski, Wiener

NOES: Anderson, Bates, Cannella, Chang, Fuller, Gaines, Glazer, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak, Wilk

NO VOTE RECORDED: Berryhill

ASSEMBLY FLOOR: 49-26, 8/28/18 - See last page for vote

SUBJECT:

SOURCE: SEIU California

United Nurses Association of California/Union of Health Care

Professionals

DIGEST:

This bill requires periodic inspections of hospitals by the Department of Public Health (DPH) to include reviews of compliance with nurse staffing ratios, and establishes administrative penalties for nurse staffing ratio violations of $15,000 for a first violation, and $30,000 for subsequent violations.

ANALYSIS:

Existing law:

1. Licenses and regulates health facilities by DPH, including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [HSC §1250 et seq.]
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; and requires the inspection for hospitals to be conducted no less than once every three years. [HSC §1279 (g)]
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. [HSC §1276.4]
4. Establishes a structure under which DPH is permitted to assess administrative fines to 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 probability and severity of the risk that the violation presents to the patient, the facility’s history of compliance with related state and federal statutes and regulations, the demonstrated willfulness of the violation, and the extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring. [HSC §1280.3]
5. Permits DPH to assess an administrative penalty against a 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. [HSC §1280.3 (a)]
6. Permits DPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Prohibits DPH from assessing an administrative penalty for minor violations. [HSC §1280.3 (b) and (c)]
7. 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. [HSC §1280.3 (h)]
8. Requires DPH to have full discretion to consider all factors when determining the amount of an administrative penalty. [HSC §1280.3 (a)]

This bill:

1. Requires that periodic DPH inspections of hospitals to ensure compliance with state laws and regulations include reviews of compliance with nurse staffing ratios. Prohibits a periodic inspection conducted to inspect compliance with nurse staffing ratios from being announced in advance, consistent with existing law that prohibits periodic inspections of health facilities from being announced in advance.
2. Requires DPH to assess a fine of $15,000 for a hospital that violates a nurse staffing ratio regulation for the first time, and $30,000 for the second and each subsequent violation. Specifies that multiple violations found on the same inspection survey constitutes a single violation, and that a violation occurring more than three years after the date of the last violation is required to be treated as a first violation.
3. Prohibits a hospital from being assessed a penalty for nurse staffing violations in instances where a registered nurse is unexpectedly sick or injured at work and leaves the facility, and the health facility documents and demonstrates that prompt efforts were made to maintain required staffing levels.
4. Permits DPH, without taking any regulatory actions, to implement, interpret, or make specific this bill by means of an All Facilities Letter or similar instruction.
5. Requires all penalties collected by DPH under this bill to be deposited into DPH’s Licensing and Certification Program Fund, as specified, and requires penalty revenues to be expended solely for the purpose of enforcing nurse staffing regulations.
6. Includes this new nurse staffing ratio penalty provision in a provision of existing law that requires DPH to take into consideration the special circumstances of small and rural hospitals when taking enforcement action in order to protect access to quality care in those hospitals.

Comments

1. Author’s statement. According to the author, it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. SB 1288 helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything the state can to make sure that it fully enforces existing law, since the stakes are simply too high for patients. It is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. Moreover, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.
2. 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 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.

1. DPH enforcement of nurse-to-patient staffing requirements. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In the most recently completed fiscal year (2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written and along with a request for a plan of correction. According to DPH, if there are negative patient outcomes and serious consequences due to staffing issues, then DPH will conduct a complaint validation survey. In October of 2010, at a hearing of the Senate Health Committee on DPH’s implementation of the nurse staffing ratio law, DPH reported that it had issued 465 deficiencies since January 2004 related to nurse staffing ratio. Because this was prior to the adoption of regulations governing administrative fines, the only monetary penalty available to DPH at the time were “immediate jeopardy” penalties of $25,000, $50,000, and $75,0000 for first, second, and subsequent violations (these penalty amounts have since been increased). DPH reported that during this time period it had issued two penalties of $25,000 each for staffing violations that it determined constituted immediate jeopardy to patients.
2. Administrative penalties for hospitals. SB 1312 (Alquist, Chapter 895, Statutes of 2006) gave DPH the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. Prior to SB 1312, DPH had very limited authority to levy fines on hospitals that violated state licensing laws. SB 1312 created two levels of penalties: violations that constituted immediate jeopardy to the health and safety of a patient, and violations that do not constitute immediate jeopardy. SB 541 (Alquist, Chapter 605, Statutes of 2008) modified the administrative penalty provisions, and increased the fine amounts. Immediate jeopardy violations are now subject to a fine of up to up to $75,000 for the first penalty, $100,000 for the second penalty, and $125,000 for the third and subsequent penalties. All other violations (except minor violations, for which DPH is prohibited from assessing a violation) are subject to a fine of up to $25,000.

SB 1312 required DPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. DPH adopted these regulations in late 2013, and they went into effect on April 1, 2014. These regulations established a penalty matrix which can be modified upward or downward according to certain specified factors.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, administrative staff costs of up to $120,000 per year to DPH for three years to issue regulations (Licensing and Certification Program Fund).

SUPPORT: (Verified 10/4/18)

SEIU California (co-source)

United Nurses Association of California/Union of Health Care Professionals (co-source)

California Commission on Aging

California Labor Federation

California Nurses Association

California Professional Firefighters

California School Nurse Organization

California Teamster Public Affairs Council

CAN Support

Congress of California Seniors

Consumers Attorneys of California

Engineers and Scientists of California

International Longshore and Warehouse Union, ILWU Local 13, 63, and 94

National Nurses United

Planned Parenthood Affiliates of California

San Francisco Aids Foundation

United Hospital Association

OPPOSITION: (Verified 10/4/18)

Adventist Health

Alliance of Catholic Health Care

Aurora Behavioral Healthcare- Santa Rosa

Association of California Healthcare Districts

Banner Lassen Medical Center

Beverly Hospital

California Children’s Hospital Association

California Hospital Association

Cedars-Sinai

Centinela Hospital

Clovis Community Medical Center

Community Hospital of the Monterey Peninsula

Corona Regional Medical Center

Delano Regional Medical Center

Department of Public Health

Dignity Health

Eastern Plumas Health Care

Eisenhower Health

Enloe Medical Center

Good Samaritan Hospital

Healdsburg District Hospital

HealthSouth Bakersfield Rehabilitation Hospital

Henry Mayo Newhall Hospital

John Muir Health

Kern Medical

Kern Valley Healthcare District

Kindred Hospital San Francisco Bay Area

Los Angeles County Business Federation

Lompoc Valley Medical Center

Mayers Memorial Hospital District

Mad River Community

Madera Community Hospital

MemorialCare

Methodist Hospital of Southern California

Modoc Medical Center

Monterey Park Hospital

Orchard Hospital

Palmdale Regional

PIH Health

Plumas District Hospital

Providence St Joseph Health

Ridgecrest Reginal Hospital

Riverside Community Hospital

San Gabriel Valley Economic Partnership

Scripps Health

Sharp HealthCare

Shasta Regional Medical Center

Sierra View Medical Center

Sonoma Valley Hospital

Southwest HealthCare System

Stanford Health Care

Surprise Valley Health Care District

Sutter Health Amador

Sutter Lakeside Hospital

Temecula Valley Hospital

Trinity Hospital

United Hospital Association

Valley Children’s Healthcare

Vista del Mar Behavioral Healthcare Hospital

West Hills Hospital & Medical Center

ARGUMENTS IN SUPPORT: This bill is sponsored by SEIU California, which states that despite the mandated nursing ratios, hospitals repeatedly violate nurse staffing requirements. According to SEIU California, when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no administrative or criminal penalties attached to it. SEIU California states that DPH rarely circles back with facilities to ensure compliance, and violations continue. According to SEIU California, hospitals that routinely violate minimum staffing requirements jeopardize patient safety and quality of care. Moreover, SEIU California states that when nurses are coerced into unsafe staffing assignments, over their objections about patient safety, a nurse runs the risk of Board of Registered Nursing disciplinary action, and in many cases, losing their license. According to SEIU, in 2017 alone, one of the SEIU locals that represents nurses at 26 private hospitals compiled 217 nurse-generated Assignment Despite Objection forms, which detail the objections of nurses who have been given staffing assignments despite the nurses’ concerns that the assignment would violate staffing requirements and put patients at risk. According to SEIU California, nurses reported that in 45% of the reported Assignment Despite Objection forms, hospitals required them to violate the ratios or risk discipline. SEIU California states that under the penalty structure in this bill, the State of California can improve healthcare quality by ensuring improved compliance with existing law.

The California Nurses Association/National Nurses United (CNA) states in support that the nurse-to-patient ratios save lives. According to CNA, with the ratios, nurses are able to spend more time delivering care at the bedside and are more likely to identify and report changes in a patient’s condition early on, thereby avoiding many preventable complications. According to CNA, the regulations were adopted as the minimum staffing requirement, meant for the leanest staffing for the slowest shift when the patients were least acute. CNA states hospitals short-staff to save money, and this bill is a common sense proposal to put into statute the requirement to inspect for these patient protections and to penalize hospitals using a penalty that fits the violation. The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) points out in support that a peer reviewed study found that each additional patient per nurse increases the risk of patient mortality by seven percent. UNAC/UHCP states that compliance with nurse staffing ratios has been demonstrated to improve patient outcomes, but many hospitals have refused to consistently adhere to the ratios.

ARGUMENTS IN OPPOSITION: The Association of California Healthcare Districts (ACHD) states in opposition that DPH has established a robust process for determining fine amounts that considers the scope and severity of any hospital noncompliance with licensing requirements, including staffing ratios. ACHD states that the current process was adopted after a lengthy public input process and mandates a progression of fine amounts for each administrative penalty of up to $125,000 per violation. ACHD states that this bill would eliminate DPH’s ability to link the penalty amount to the actual risk of harm to patients, and undermines DPH’s current process without good reason. The California Hospital Association also opposes this bill, making similar arguments to ACHD.

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 1288 without my signature.

This bill requires the Department of Public Health to issue a specific penalty for violating nurse-to-patient ratio requirements.

California hospitals are regularly inspected to assure patient safety and quality of care. When violations are found, penalties are imposed based on an overall assessment of the severity and duration of the violations, including for any failure to meet the required staffing ratio.

Nurse-to-patient ratios are a vital part of the state's regulatory scheme. Hospitals, however, are best evaluated in a comprehensive manner and I am reluctant to start singling out specific violations for a separate penalty.

ASSEMBLY FLOOR: 49-26, 8/28/18

AYES: Aguiar-Curry, Arambula, Berman, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Reyes, Rivas, Rodriguez, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Chávez, Chen, Choi, Cunningham, Dahle, Fong, Gallagher, Gray, Harper, Kiley, Lackey, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Bloom, Cooper, Daly, Flora, Frazier

Prepared by:

10/9/18 10:57:34

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 1288

Author: Leyva

:

Vote:

SENATE HEALTH COMMITTEE: 7-2, 4/18/18

AYES: Hernandez, Leyva, Mitchell, Monning, Newman, Pan, Roth

NOES: Nguyen, Nielsen

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/22/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SENATE FLOOR: 22-13, 5/29/18

AYES: Allen, Atkins, Beall, Bradford, De León, Dodd, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Newman, Pan, Portantino, Skinner, Wieckowski, Wiener

NOES: Anderson, Bates, Cannella, Fuller, Gaines, Glazer, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak, Wilk

NO VOTE RECORDED: Berryhill, Galgiani, Roth, Stern

ASSEMBLY FLOOR: 49-26, 8/28/18 - See last page for vote

SUBJECT:

SOURCE: SEIU California

United Nurses Association of California/Union of Health Care

Professionals

DIGEST:

This bill requires periodic inspections of hospitals by the Department of Public Health (DPH) to include reviews of compliance with nurse staffing ratios, and establishes administrative penalties for nurse staffing ratio violations of $15,000 for a first violation, and $30,000 for subsequent violations.

Assembly Amendments

(1) reduce the maximum penalty amounts, previously up to $25,000 for a first violation and maxing out at $125,000 for multiple violations, to instead be $15,000 for a first violation, and $30,000 for each subsequent violation; (2) add a provision prohibiting fines from being assess in instances where a nurse is unexpectedly sick or injured at work and has to leave the facility; and (3) require penalty amounts collected under this bill to be used to enforce nurse staffing regulations.

ANALYSIS:

Existing law:

1. Licenses and regulates health facilities by DPH, including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [HSC §1250 et seq.]
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; and requires the inspection for hospitals to be conducted no less than once every three years. [HSC §1279 (g)]
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. [HSC §1276.4]
4. Establishes a structure under which DPH is permitted to assess administrative fines to 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 probability and severity of the risk that the violation presents to the patient, the facility’s history of compliance with related state and federal statutes and regulations, the demonstrated willfulness of the violation, and the extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring. [HSC §1280.3]
5. Permits DPH to assess an administrative penalty against a 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. [HSC §1280.3 (a)]
6. Permits DPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Prohibits DPH from assessing an administrative penalty for minor violations. [HSC §1280.3 (b) and (c)]
7. 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. [HSC §1280.3 (h)]
8. Requires DPH to have full discretion to consider all factors when determining the amount of an administrative penalty. [HSC §1280.3 (a)]

This bill:

1. Requires that periodic DPH inspections of hospitals to ensure compliance with state laws and regulations include reviews of compliance with nurse staffing ratios. Prohibits a periodic inspection conducted to inspect compliance with nurse staffing ratios from being announced in advance, consistent with existing law that prohibits periodic inspections of health facilities from being announced in advance.
2. Requires DPH to assess a fine of $15,000 for a hospital that violates a nurse staffing ratio regulation for the first time, and $30,000 for the second and each subsequent violation. Specifies that multiple violations found on the same inspection survey constitutes a single violation, and that a violation occurring more than three years after the date of the last violation is required to be treated as a first violation.
3. Prohibits a hospital from being assessed a penalty for nurse staffing violations in instances where a registered nurse is unexpectedly sick or injured at work and leaves the facility, and the health facility documents and demonstrates that prompt efforts were made to maintain required staffing levels.
4. Permits DPH, without taking any regulatory actions, to implement, interpret, or make specific this bill by means of an All Facilities Letter or similar instruction.
5. Requires all penalties collected by DPH under this bill to be deposited into DPH’s Licensing and Certification Program Fund, as specified, and requires penalty revenues to be expended solely for the purpose of enforcing nurse staffing regulations.
6. Includes this new nurse staffing ratio penalty provision in a provision of existing law that requires DPH to take into consideration the special circumstances of small and rural hospitals when taking enforcement action in order to protect access to quality care in those hospitals.

Comments

1. Author’s statement. According to the author, it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. SB 1288 helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything the state can to make sure that it fully enforces existing law, since the stakes are simply too high for patients. It is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. Moreover, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.
2. 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 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.

1. DPH enforcement of nurse-to-patient staffing requirements. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In the most recently completed fiscal year (2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written and along with a request for a plan of correction. According to DPH, if there are negative patient outcomes and serious consequences due to staffing issues, then DPH will conduct a complaint validation survey. In October of 2010, at a hearing of the Senate Health Committee on DPH’s implementation of the nurse staffing ratio law, DPH reported that it had issued 465 deficiencies since January 2004 related to nurse staffing ratio. Because this was prior to the adoption of regulations governing administrative fines, the only monetary penalty available to DPH at the time were “immediate jeopardy” penalties of $25,000, $50,000, and $75,0000 for first, second, and subsequent violations (these penalty amounts have since been increased). DPH reported that during this time period it had issued two penalties of $25,000 each for staffing violations that it determined constituted immediate jeopardy to patients.
2. Administrative penalties for hospitals. SB 1312 (Alquist, Chapter 895, Statutes of 2006) gave DPH the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. Prior to SB 1312, DPH had very limited authority to levy fines on hospitals that violated state licensing laws. SB 1312 created two levels of penalties: violations that constituted immediate jeopardy to the health and safety of a patient, and violations that do not constitute immediate jeopardy. SB 541 (Alquist, Chapter 605, Statutes of 2008) modified the administrative penalty provisions, and increased the fine amounts. Immediate jeopardy violations are now subject to a fine of up to up to $75,000 for the first penalty, $100,000 for the second penalty, and $125,000 for the third and subsequent penalties. All other violations (except minor violations, for which DPH is prohibited from assessing a violation) are subject to a fine of up to $25,000.

SB 1312 required DPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. DPH adopted these regulations in late 2013, and they went into effect on April 1, 2014. These regulations established a penalty matrix which can be modified upward or downward according to certain specified factors.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee, administrative staff costs of up to $120,000 per year to DPH for three years to issue regulations (Licensing and Certification Program Fund).

SUPPORT: (Verified 8/28/18)

SEIU California (co-source)

United Nurses Association of California/Union of Health Care Professionals (co-source)

California Commission on Aging

California Labor Federation

California Nurses Association

California Professional Firefighters

California School Nurse Organization

California Teamster Public Affairs Council

CAN Support

Congress of California Seniors

Consumers Attorneys of California

Engineers and Scientists of California

International Longshore and Warehouse Union, ILWU Local 13, 63, and 94

National Nurses United

Planned Parenthood Affiliates of California

San Francisco Aids Foundation

United Hospital Association

OPPOSITION: (Verified 8/28/18)

Adventist Health

Alliance of Catholic Health Care

Association of California Healthcare Districts

Beverly Hospital

California Children’s Hospital Association

California Hospital Association

Cedars-Sinai

Centinela Hospital

Clovis Community Medical Center

Community Hospital of the Monterey Peninsula

Corona Regional Medical Center

Delano Regional Medical Center

Department of Public Health

Dignity Health

Eastern Plumas Health Care

Eisenhower Health

Enloe Medical Center

Good Samaritan Hospital

Healdsburg District Hospital

HealthSouth Bakersfield Rehabilitation Hospital

Henry Mayo Newhall Hospital

John Muir Health

Kern Medical

Kern Valley Healthcare District

Kindred Hospital San Francisco Bay Area

Los Angeles County Business Federation

Mad River Community

Madera Community Hospital

MemorialCare

Methodist Hospital of Southern California

Modoc Medical Center

Orchard Hospital

Palmdale Regional

PIH Health

Plumas District Hospital

Providence St Joseph Health

Ridgecrest Reginal Hospital

Riverside Community Hospital

San Gabriel Valley Economic Partnership

Scripps Health

Sharp HealthCare

Shasta Regional Medical Center

Sierra View Medical Center

Sonoma Valley Hospital

Southwest HealthCare System

Stanford Health Care

Sutter Health Amador

Sutter Lakeside Hospital

Temecula Valley Hospital

Trinity Hospital

United Hospital Association

Valley Children’s Healthcare

West Hills Hospital & Medical Center

ARGUMENTS IN SUPPORT: This bill is sponsored by SEIU California, which states that despite the mandated nursing ratios, hospitals repeatedly violate nurse staffing requirements. According to SEIU California, when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no administrative or criminal penalties attached to it. SEIU California states that DPH rarely circles back with facilities to ensure compliance, and violations continue. According to SEIU California, hospitals that routinely violate minimum staffing requirements jeopardize patient safety and quality of care. Moreover, SEIU California states that when nurses are coerced into unsafe staffing assignments, over their objections about patient safety, a nurse runs the risk of Board of Registered Nursing disciplinary action, and in many cases, losing their license. According to SEIU, in 2017 alone, one of the SEIU locals that represents nurses at 26 private hospitals compiled 217 nurse-generated Assignment Despite Objection forms, which detail the objections of nurses who have been given staffing assignments despite the nurses’ concerns that the assignment would violate staffing requirements and put patients at risk. According to SEIU California, nurses reported that in 45% of the reported Assignment Despite Objection forms, hospitals required them to violate the ratios or risk discipline. SEIU California states that under the penalty structure in this bill, the State of California can improve healthcare quality by ensuring improved compliance with existing law.

The California Nurses Association/National Nurses United (CNA) states in support that the nurse-to-patient ratios save lives. According to CNA, with the ratios, nurses are able to spend more time delivering care at the bedside and are more likely to identify and report changes in a patient’s condition early on, thereby avoiding many preventable complications. According to CNA, the regulations were adopted as the minimum staffing requirement, meant for the leanest staffing for the slowest shift when the patients were least acute. CNA states hospitals short-staff to save money, and this bill is a common sense proposal to put into statute the requirement to inspect for these patient protections and to penalize hospitals using a penalty that fits the violation. The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) points out in support that a peer reviewed study found that each additional patient per nurse increases the risk of patient mortality by seven percent. UNAC/UHCP states that compliance with nurse staffing ratios has been demonstrated to improve patient outcomes, but many hospitals have refused to consistently adhere to the ratios.

ARGUMENTS IN OPPOSITION: The Association of California Healthcare Districts (ACHD) states in opposition that DPH has established a robust process for determining fine amounts that considers the scope and severity of any hospital noncompliance with licensing requirements, including staffing ratios. ACHD states that the current process was adopted after a lengthy public input process and mandates a progression of fine amounts for each administrative penalty of up to $125,000 per violation. ACHD states that this bill would eliminate DPH’s ability to link the penalty amount to the actual risk of harm to patients, and undermines DPH’s current process without good reason. The California Hospital Association also opposes this bill, making similar arguments to ACHD.

ASSEMBLY FLOOR: 49-26, 8/28/18

AYES: Aguiar-Curry, Arambula, Berman, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Reyes, Rivas, Rodriguez, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Chávez, Chen, Choi, Cunningham, Dahle, Fong, Gallagher, Gray, Harper, Kiley, Lackey, Mathis, Mayes, Melendez, Obernolte, Patterson, Quirk-Silva, Salas, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Bloom, Cooper, Daly, Flora, Frazier

Prepared by:

8/28/18 21:28:00

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1288

Author:(Leyva)

As Amended Ver:August 24, 2018

Majority vote

SENATE VOTE: 22-13

SUMMARY: Requires the Department of Public Health (DPH) to include reviews of compliance with nurse-to-patient-ratios and staff assignment regulations during state hospital inspections. Requires DPH to assess specific penalties for violations of the nurse-to-patient ratios and staff assignment regulations. Specifically, this bill:

1. Requires DPH, when conducting periodic state hospital inspections, to include reviews of compliance with nurse-to-patient staffing ratios and prohibits the inspections from being announced in advance.
2. Requires, if DPH, determines that a hospital has violated the nurse-to-patient ratios, DPH to assess an administrative penalty of $15,000 for the first violation and $30,000 for each subsequent violation. Specifies for purposes of this bill, multiple violations found on the same inspection survey constitute a single violation for purposes of determining whether the violation was a first, second, or subsequent violation.
3. Require a violation occurring more than three years after the date of the last violation to be treated as a first violation.
4. Prohibits a hospital from being given an administrative penalty for a violation of the nurse-to-patient ratios if a registered nurse is unexpectedly sick or injured at work, and a hospital documents and demonstrates that prompt efforts were made to maintain required staffing levels.
5. Authorizes DPH to take into consideration the special circumstances of small and rural hospitals when enforcing the provisions of this bill.
6. Authorizes DPH to implement the provisions of this bill by means of an All Facilities Letter or similar instruction.

FISCAL EFFECT: According to the Assembly Appropriations Committee, administrative costs of up to $120,000 per year to the DPH for three years to issue regulations (Licensing and Certification (L & C) Program Fund).

COMMENTS: According to the author, this bill helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The author states that it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. The author contends that the state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything possible to make sure that it fully enforces existing law, since the stakes are simply too high for patients. The author states that it is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. The author concludes that, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.

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 set the minimum ratio of nurses to patient by unit, including 1:1 in operating rooms, 1:2 in intensive care units, and 1:5 in general medical-surgical units. These regulations also incorporated the patient classification system requirement. The nurse-to-patient ratio regulations require that minimum ratios be met at all times.

According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In 2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written, along with a request for a plan of correction.

According to DPH between July1, 2014, and February 28, 2017, it received 680 allegations, 644 of which were complaints and 36 were entity reported incidents, meaning they were reported by the facility, associated with quality of care/treatment regarding facility staffing. During the same timeframe, DPH cited 254 deficiencies associated with staffing regulations, all of which required a plan of correction. DPH did not issue any administrative penalties. According to DPH nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. Prior to inclusion in the survey tool, verification with staffing requirements was conducted in response to complaints.

The California State Council of the Service Employees International Union (SEIU California) and United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) are the sponsors of this bill. SEIU California states, that when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no penalties attached to it. SEIU California contends that DPH does not conduct routine follow up to ensure compliance, and violations continue because the existing enforcement scheme leaves DPH with inadequate tools for enforcement. UNAC/UHCP notes that according to a peer reviewed study in the Journal of American Medicine, each additional patient per nurse increases the risk of patient mortality by 7%, and increases the risk of a failure to rescue by 7%. UNAC/UHCP concludes that this bill will contribute directly to a higher quality of care, and improve patient outcomes.

The California Nurses Association (CNA) points out that the Final Statement of Reasons in the nurse-to-patient ratios regulation clearly stated that the ratios are the minimum staffing requirement consisted with safe care. CNA states that hospitals short-staff patient care in order to save money and that this bill is a common sense proposal to put into statute the requirement to inspect for compliance and to penalize hospitals using a penalty that fits the violation.

The California Hospital Association (CHA) is opposed to this bill, and notes that it singles out one type of licensing violation for administrative penalties, separate from the DPH regulation adopted for that purpose. CHA states that this bill requires DPH to impose specified administrative penalties for violations of nurse-to-patient staffing ratios and eliminates DPHs ability to link the penalty amount to the actual risk of harm to patients. The United Hospital Association states that existing law requires DPH to conduct hospital relicensing surveys, which, since 2016 have included evaluation of the nurse-to-patient staff ratios and that it is unnecessary to enact legislation that would require DPH to do something it already does.

The Association of California Healthcare Districts (ACHD) opposes this bill stating that DPH has established a process for determining fine amounts that considers the scope and severity of any hospital noncompliance with licensing requirements, including staffing ratios. ACHD also notes that the current process was adopted after a lengthy public input process and mandates a progression of fine amounts for each administrative penalty of up to $125,000 per violation.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 FN: 0004801

SENATE THIRD READING

STR Bill Id:SB 1288

Author:(Leyva)

As Amended Ver:August 6, 2018

Majority vote

SENATE VOTE: 22-13

SUMMARY: Requires the Department of Public Health (DPH) to include reviews of compliance with nurse-to-patient-ratios and staff assignment regulations during state hospital inspections. Requires DPH to assess specific penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations. Specifically, this bill:

1. Requires DPH, when conducting periodic state hospital inspections, to include reviews of compliance with nurse-to-patient staffing ratios and prohibits the inspections from being announced in advance.
2. Requires DPH to assess the following administrative penalties for hospitals issued a citation for violating the nurse-to-patient ratios:
   1. For the first and second violation, DPH to assess an administrative fine of not less than $2,500, and not to exceed $25,000;
   2. For a third violation, DPH to assess an administrative penalty of not less than $25,000, and not to exceed $75,000;
   3. For a fourth violation, DPH to assess an administrative penalty of not less than $75,000, and not to exceed $100,000; and,
   4. For each subsequent violation, DPH to assess an administrative penalty of $125,000.
3. Requires multiple violations found on the same inspection survey to constitute a single violation for purposes of determining whether the violation was a first, second, third, fourth, or subsequent violation.
4. Prohibits the penalties in 2) above from being construed to abrogate the immediate jeopardy penalties in existing law which allow DPH to assess an administrative penalty against a 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.
5. Specifies that a violation of nurse staffing regulations does not constitute a crime.

FISCAL EFFECT: According to the Assembly Appropriations Committee, administrative costs of up to $120,000 per year to the DPH for three years to issue regulations (Licensing and Certification (L & C) Program Fund).

COMMENTS: According to the author, this bill helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The author states that it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. The author contends that the state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything possible to make sure that it fully enforces existing law, since the stakes are simply too high for patients. The author states that it is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. The author concludes that, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.

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 set the minimum ratio of nurses to patient by unit, including 1:1 in operating rooms, 1:2 in intensive care units, and 1:5 in general medical-surgical units. These regulations also incorporated the patient classification system requirement. The nurse-to-patient ratio regulations require that minimum ratios be met at all times.

According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In 2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written, along with a request for a plan of correction.

According to DPH between July1, 2014 and February 28, 2017, it received 680 allegations, 644 of which were complaints and 36 were entity reported incidents, meaning they were reported by the facility, associated with quality of care/treatment regarding facility staffing. During the same timeframe, DPH cited 254 deficiencies associated with staffing regulations, all of which required a plan of correction. DPH did not issue any administrative penalties. According to DPH nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. Prior to inclusion in the survey tool, verification with staffing requirements was conducted in response to complaints.

The California State Council of the Service Employees International Union (SEIU California) and United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) are the sponsors of this bill. SEIU California states, that when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no penalties attached to it. SEIU California contends that DPH does not conduct routine follow up to ensure compliance, and violations continue because the existing enforcement scheme leaves DPH with inadequate tools for enforcement. UNAC/UHCP notes that according to a peer reviewed study in the Journal of American Medicine, each additional patient per nurse increases the risk of patient mortality by 7%, and increases the risk of a failure to rescue by 7%. UNAC/UHCP concludes that this bill will contribute directly to a higher quality of care, and improve patient outcomes.

The California Nurses Association (CNA) points out that the Final Statement of Reasons in the nurse-to-patient ratios regulation clearly stated that the ratios are the minimum staffing requirement consisted with safe care. CNA states that hospitals short-staff patient care in order to save money and that this bill is a common sense proposal to put into statute the requirement to inspect for compliance and to penalize hospitals using a penalty that fits the violation.

The California Hospital Association (CHA) is opposed to this bill, and notes that it singles out one type of licensing violation for administrative penalties, separate from the DPH regulation adopted for that purpose. CHA states that this bill requires DPH to impose specified administrative penalties for violations of nurse-to-patient staffing ratios and eliminates DPHs ability to link the penalty amount to the actual risk of harm to patients. The United Hospital Association states that existing law requires DPH to conduct hospital relicensing surveys, which, since 2016 have included evaluation of the nurse-to-patient staff ratios and that it is unnecessary to enact legislation that would require DPH to do something it already does.

The Association of California Healthcare Districts (ACHD) opposes this bill stating that DPH has established a process for determining fine amounts that considers the scope and severity of any hospital noncompliance with licensing requirements, including staffing ratios. ACHD also notes that the current process was adopted after a lengthy public input process and mandates a progression of fine amounts for each administrative penalty of up to $125,000 per violation.

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097 FN: 0004020

Date of Hearing: August 15, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1288

Author:(Leyva) – As Amended Ver:August 6, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the California Department of Public Health (CDPH) to include reviews of compliance with nurse-to-patient ratios and staff assignment regulations during state hospital inspections.

It also requires CDPH to assess specific penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations, and requires these funds to be used to enforce the above regulations.

FISCAL EFFECT:

Administrative staff costs of up to $120,000 per year to the California Department of Public Health (CDPH) for three years to issue regulations (Licensing and Certification Program Fund).

COMMENTS:

1. Purpose. This bill seeks to increase penalties for violations of nurse staffing requirements.
2. 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, hospitals were already 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 set the minimum ratio of nurses to patient by unit, including 1:1 in operating rooms, 1:2 in intensive care units, and 1:5 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 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 minimum ratios be met at all times.

1. Enforcement. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In 2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). CDPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, CDPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written, along with a request for a plan of correction.

CDPH did not issue any administrative penalties for staffing violations during this time. According to CDPH, nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. Prior to inclusion in the survey tool, verification with staffing requirements was conducted in response to complaints.

1. Support. California State Council of the Service Employees International Union (SEIU California) and United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) are cosponsors of this bill, arguing hospitals incur no monetary penalties for staffing violations and are instead given correction plans when a violation is found. The California Labor Federation, California Nurses Association, and other labor groups also support this bill.
2. Opposition. Hospitals oppose this bill, noting it singles out one type of violation for higher penalties, regardless of the potential for patient harm. It is inconsistent with regulatory penalty levels adopted with significant stakeholder input. CDPH also seeks amendments to this bill that align penalties with those adopted through regulation.
3. Staff Comment. Requiring penalty funds to be used only for enforcement of staffing ratios has intuitive appeal from a policy perspective but it may be difficult to implement, given the potential mismatch between resources needed for enforcement and the unpredictable level of penalty revenue. The author may wish to consider modifying this requirement to ensure the program can be effectively implemented and resourced.

Analysis Prepared by: Lisa Murawski / APPR. / (916) 319-2081

Date of Hearing: June 19, 2018

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

SBPCA Bill Id:SB 1288

Author:(Leyva) – As Amended Ver:April 25, 2018

SENATE VOTE: 22-13

SUBJECT: Health and care facilities: inspections.

SUMMARY: Requires the Department of Public Health (DPH) to include reviews of compliance with nurse-to-patient-ratios and staff assignment regulations during state hospital inspections. Deletes obsolete provisions of law regarding administrative penalties, and instead requires DPH to assess specific penalties not to exceed $125,000 for violations of the nurse-to-patient ratios and staff assignment regulations. Specifically, this bill:

1. Requires DPH, when conducting periodic state hospital inspections, to include reviews of compliance with nurse-to-patient staffing ratios and prohibits the inspections from being announced in advance.
2. Requires DPH to assess the following administrative penalties for hospitals issued a citation for violating the nurse-to-patient ratios:
   1. For the first and second violation, DPH to assess an administrative fine of not less than $2,500, and not to exceed $25,000;
      
   2. For a third violation, DPH to assess an administrative penalty of $75,000;
      
   3. For a fourth violation, DPH to assess an administrative penalty of not less than $75,000, and not to exceed $100,000; and,
      
   4. For each subsequent violation, DPH to assess an administrative penalty of $125,000.
3. Requires multiple violations found on the same inspection survey to constitute a single violation for purposes of determining whether the violation was a first, second, third, fourth, or subsequent violation.
4. Prohibits the penalties in 2) above from being construed to abrogate the immediate jeopardy penalties described in 5) in existing law, below.
5. Specifies that a violation of nurse staffing regulations does not constitute a crime.
6. Repeals an obsolete penalty statute that became inoperative upon the adoption of administrative penalty regulations in 2014.

EXISTING LAW:

1. Licenses and regulates health facilities by DPH, including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals).
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 the inspection for hospitals 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.
4. Establishes a structure under which DPH is permitted to assess administrative fines to 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 probability and severity of the risk that the violation presents to the patient, the facility’s history of compliance with related state and federal statutes and regulations, the demonstrated willfulness of the violation, and 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 to assess an administrative penalty against a 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 to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Prohibits DPH from assessing an administrative penalty for minor violations.
7. 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.
8. Requires DPH to have full discretion to consider all factors when determining the amount of an administrative penalty.

FISCAL EFFECT: According to the Senate Appropriations Committee, DPH identifies a need for a limited-term associate governmental program analyst (AGPA) to develop the regulations needed to implement the bill. The estimated fiscal cost from the Special Licensing Fund (Fund 3098) of the one personnel is below:

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, this bill helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The author states that it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. The author contends that the state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything possible to make sure that it fully enforces existing law, since the stakes are simply too high for patients. The author states that it is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. The author concludes that, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.
2. BACKGROUND.
   1. 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 set the minimum ratio of nurses to patient by unit, including 1:1 in operating rooms, 1:2 in intensive care units, and 1:5 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 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 minimum ratios be met at all times.

• 1. Effectiveness of nurse-to-patient ratios. According to a 2010 study by researchers at the University of Pennsylvania, "Implications of the California Nurse Staffing Mandate for Other States," 29% of nurses in California experienced high burnout, compared with 34% of nurses in New Jersey and 36% of nurses in Pennsylvania, states without minimum staffing ratios during the period of research. The study also found that 20% of nurses in California reported dissatisfaction with their jobs, compared with 26% and 29% in New Jersey and Pennsylvania. California nurse staffing ratios also accompanied a lower likelihood of in-patient death within 30 days of hospital admission than in New Jersey or Pennsylvania; there was also a lower likelihood of death from failing to properly respond to symptoms. A 2013 study from the University of California, Davis, "California's nurse-to-patient ratio law and occupational injury," found that the ratios reduced occupational injury and illness rates for both registered nurses (RNs) and licensed practical nurses by up to 33% compared to the expected rate without the law.
  2. DPH Licensing and Certification Program (L&C). The DPH L&C is responsible for regulatory oversight of licensed health facilities and health care professionals to ensure safe, effective, and quality healthcare for Californians. L&C fulfills this role by conducting periodic inspections and complaint investigation of health facilities to ensure compliance with federal and state laws and regulations. However, there have been long-standing concerns about the L&C program. A 2014 California State Auditor report highlighted gaps in state oversight of health facilities and certain professionals that work in these facilities. While the focus of the audit was on nursing homes, DPH acknowledged that they also faced a backlog of complaint investigations that are hospital-based. The 2015-16 Budget provided DPH L&C with an additional $19.8 million for 237 positions over two years to address workload and to do licensing surveys of hospitals every three years, as is statutorily required.

At present, L&C is not caught up on the backlog and is unable to inspect each hospital every three years. According to DPH, it is prioritizing inspections at hospitals that have higher rates of infection compared to other facilities and this prioritization will occur until all hospitals are inspected every three years.

• 1. Administrative penalties for hospitals. SB 1312 (Alquist), Chapter 895, Statutes of 2006, gave DPH the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. Prior to SB 1312, DPH had very limited authority to levy fines on hospitals that violated state licensing laws. SB 1312 created two levels of penalties: violations that constituted immediate jeopardy to the health and safety of a patient; and, violations that do not constitute immediate jeopardy. SB 541 (Alquist), Chapter 605, Statutes of 2008, modified the administrative penalty provisions, and increased the fine amounts. Immediate jeopardy violations are now subject to a fine of up to up to $75,000 for the first penalty, $100,000 for the second penalty, and $125,000 for the third and subsequent penalties. All other violations (except minor violations, for which DPH is prohibited from assessing a violation) are subject to a fine of up to $25,000.
     
     SB 1312 required DPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. DPH adopted these regulations in late 2013, and they went into effect on April 1, 2014. These regulations established the penalty matrix in the table below, which can be modified upward or downward according to certain specified factors. The percentages in the table below are to be applied to the statutory maximum penalty amounts as described in 5) and 6) of existing law above:
     
     
     

• 1. Nurse-to-Patient Ratio enforcement. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In 2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written, along with a request for a plan of correction.
     
     According to DPH between July1, 2014 and February 28, 2017, it received 680 allegations, 644 of which were complaints and 36 were entity reported incidents, meaning they were reported by the facility, associated with quality of care/treatment regarding facility staffing. During the same timeframe, DPH cited 254 deficiencies associated with staffing regulations, all of which required a plan of correction. DPH did not issue any administrative penalties. According to DPH nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. Prior to inclusion in the survey tool, verification with staffing requirements was conducted in response to complaints.

1. SUPPORT. The California State Council of the Service Employees International Union (SEIU California) and United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) are the sponsors of this bill. SEIU California states, that when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no penalties attached to it. SEIU California contends that DPH does not conduct routine follow up to ensure compliance, and violations continue because the existing enforcement scheme leaves DPH with inadequate tools for enforcement. UNAC/UHCP notes that according to a peer reviewed study in the Journal of American Medicine, each additional patient per nurse increases the risk of patient mortality by 7%, and increases the risk of a failure to rescue by 7%. UNAC/UHCP concludes that this bill will contribute directly to a higher quality of care, and improve patient outcomes.
   
   The California Nurses Association (CNA) points out that the Final Statement of Reasons in the nurse-to-patient ratios regulation clearly stated that the ratios are the minimum staffing requirement consisted with safe care. CNA states that hospitals short-staff patient care in order to save money and that this bill is a common sense proposal to put into statute the requirement to inspect for compliance and to penalize hospitals using a penalty that fits the violation.
2. OPPOSITION. The California Hospital Association (CHA) is opposed to this bill, and notes that it singles out one type of licensing violation for administrative penalties, separate from the DPH regulation adopted for that purpose. CHA states that this bill requires DPH to impose specified administrative penalties for violations of nurse-to-patient staffing ratios and eliminates DPHs ability to link the penalty amount to the actual risk of harm to patients. The United Hospital Association states that existing law requires DPH to conduct hospital relicensing surveys, which, since 2016 have included evaluation of the nurse-to-patient staff ratios and that it is unnecessary to enact legislation that would require DPH to do something it already does.
   
   The Association of California Healthcare Districts (ACHD) opposes this bill stating that DPH has established a process for determining fine amounts that considers the scope and severity of any hospital noncompliance with licensing requirements, including staffing ratios. ACHD also notes that the current process was adopted after a lengthy public input process and mandates a progression of fine amounts for each administrative penalty of up to $125,000 per violation.
3. PREVIOUS LEGISLATION.
   1. SB 455 (Hernandez) of 2013 would have codified existing regulations requiring hospitals to have a committee annually review the reliability of its patient classification system, including regulations requiring at least one-half of this committee be composed of RNs who provide direct patient care. This bill required the RNs appointed to this committee to be selected by the collective bargaining agent, if any. SB 455 would have required DPH, during every periodic state inspection of a hospital, to inspect for compliance with nurse-to-patient ratios, as specified. SB 455 was vetoed by the Governor, who wrote, "This bill restates current law, which requires the Department of Public Health to inspect hospital compliance with nurse-to-patient ratios, and specifies that each individual hospital committee that reviews a patient classification system shall be comprised of registered nurses appointed by the bargaining agent, unless none exists. This bill directs decisions that are best left at the local level."
   2. SB 1246 (Hernandez) of 2012 contained similar provisions to SB 455. SB 1246 was vetoed by the Governor, who wrote, "This bill seeks to grant the Department of Public Health greater authority to enforce hospital nurse staffing ratios and patient classification system requirements. Everything is already on track to get this job done. The department will soon release proposed regulations on administrative penalties that will apply to a broad range of violations. The rulemaking process should be completed next year."
   3. SB 554 (Yee) of 2011 would have required DPH to inspect for compliance with nurse-to-patient staffing ratios during periodic inspections of hospitals, similar to this bill. SB 554 also proposed to require DPH to inspect hospitals that have been cited for deficiencies related to nurse-to-patient staffing ratios for their compliance with the plan of correction. SB 554 also would have required DPH to assess administrative penalties for violations of nurse-to-patient staffing ratios and for failure to comply with an approved plan of correction related to nurse-to-patient ratios. The penalties included a $10,000 penalty for the fourth and each subsequent violation of the nurse-to-patient ratio requirements within a six-month period, and $10,000 for the failure of the hospital to comply with an approved plan of correction. These provisions were later amended out of SB 455.
   4. SB 360 (Yee) of 2009 would have required each new direct care registered nursing hire to receive and complete an orientation to the hospital and patient care unit in which he or she will be working. Nurses who have not completed this orientation would not be allowed to be assigned to direct patient care or be counted as staff in computing nurse-to-patient ratios. SB 360 was held on the Senate Appropriations suspense file.
   5. SB 541 increased the level of administrative penalties DPH may assess against hospitals, including for deficiencies that constitute immediate jeopardy to the health or safety of patients. Required health care facilities to prevent unlawful or unauthorized access to use, or disclosure of, patients' medical information, and to established safeguards protecting the privacy of patients' medical information.
   6. SB 1312 authorizes DPH to assess administrative penalties on hospitals for deficiencies constituting immediate jeopardy to the health and safety of a patient and those that do not constitute immediate jeopardy to patients.
   7. AB 394 required DPH to adopt regulations specifying nurse-to-patient ratios, by unit, for general acute care hospitals, acute psychiatric hospitals and special hospitals. Required hospitals to adopt written policies and procedures for nursing staff training. Provided that the ratios shall constitute the minimum number of registered and licensed nurses that must be provided; requires hospitals to assign additional staff in accordance with a documented patient classification system.
      
4. SUGGESTED AMENDMENT. As currently drafted, this bill allows DPH to assess a range of fine amounts for the first, second violation, and fourth violation, however for the third violation this bill requires a flat $75,000 fine. The Committee may wish to amend the bill to instead authorize DPH to assess an administrative penalty of not less than $25,000 and not to exceed $75,000.
5. TECHNICAL AMENDMENT. As currently drafted this bill does not specify the fund where the penalties collected would be deposited. The author may wish to amend this bill to clarify penalties collected by DPH pursuant to these provisions will be deposited into the DPH Licensing and Certification Program Fund, to be expended for the purposed of enforcing the nurse-to-patient ratio regulations.

REGISTERED SUPPORT / OPPOSITION:

Support

California State Council of the Service Employees International Union (cosponsor)
United Nurses Associations of California/Union of Health Care Professionals (cosponsor)

California Labor Federation

California Nurses Association

California School Nurses Organization

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientists of California

International Longshore and Warehouse Union

International Longshore and Warehouse Union, Local 13, 63, and 94

Planned Parenthood Affiliates of California

San Francisco AIDS Foundation

Opposition

Association of California Healthcare Districts
California Hospital Association

District Hospital Leadership Forum

United Hospital Association

Analysis Prepared by: Lara Flynn / HEALTH / (916) 319-2097

 THIRD READING  

Bill No: SB 1288

Author:

:

Vote:

SENATE HEALTH COMMITTEE: 7-2, 4/18/18

AYES: Hernandez, Leyva, Mitchell, Monning, Newman, Pan, Roth

NOES: Nguyen, Nielsen

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/22/18

AYES: Lara, Beall, Bradford, Hill, Wiener

NOES: Bates, Nielsen

SUBJECT:

SOURCE: SEIU California

United Nurses Association of California/Union of Health Care Professionals

DIGEST:

This bill requires periodic inspections of hospitals by the Department of Public Health (DPH) to include reviews of compliance with nurse staffing ratios, and establishes administrative penalties for nurse staffing ratio violations of between $2,500 and $25,000 for a first or second violation, $75,000 for a third violation, up to $100,000 for a fourth violation, and $125,000 for each subsequent violation.

ANALYSIS:

Existing law:

1. Licenses and regulates health facilities by DPH, including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [HSC §1250 et seq.]
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; and requires the inspection for hospitals to be conducted no less than once every three years. [HSC §1279 (g)]
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. [HSC §1276.4]
4. Establishes a structure under which DPH is permitted to assess administrative fines to 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 probability and severity of the risk that the violation presents to the patient, the facility’s history of compliance with related state and federal statutes and regulations, the demonstrated willfulness of the violation, and the extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring. [HSC §1280.3]
5. Permits DPH to assess an administrative penalty against a 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. [HSC §1280.3 (a)]
6. Permits DPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Prohibits DPH from assessing an administrative penalty for minor violations. [HSC §1280.3 (b) and (c)]
7. 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. [HSC §1280.3 (h)]
8. Requires DPH to have full discretion to consider all factors when determining the amount of an administrative penalty. [HSC §1280.3 (a)]

This bill:

1. Requires that periodic DPH inspections of hospitals to ensure compliance with state laws and regulations include reviews of compliance with nurse staffing ratios. Prohibits a periodic inspection conducted to inspect compliance with nurse staffing ratios from being announced in advance, consistent with existing law that prohibits periodic inspections of health facilities from being announced in advance.
2. Establishes penalties for hospitals that are issued a citation for violating a nurse staffing ratio regulation, as follows:
   1. For the first and second violation, requires DPH to assess an administrative fine of not less than $2,500, and not to exceed $25,000;
   2. For a third violation, requires DPH to assess an administrative penalty of $75,000;
   3. For a fourth violation, requires DPH to assess an administrative penalty of not less than $75,000, and not to exceed $100,000; and,
   4. For each subsequent violation, requires DPH to assess an administrative penalty of $125,000.
3. Requires multiple violations found on the same inspection survey to constitute a single violation for purposes of determining whether the violation was a first, second, third, fourth, or subsequent violation.
4. Prohibits the penalties specified in 2) above from being construed to abrograte the immediate jeopardy penalties specified in existing law.
5. Specifies that a violation of a nurse staffing regulations does not constitute a crime.
6. Repeals an obsolete penalty statute that become inoperative upon the adoption of administrative penalty regulations in 2014.

Comments

1. Author’s statement. According to the author, it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. SB 1288 helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything the state can to make sure that it fully enforces existing law, since the stakes are simply too high for patients. It is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. Moreover, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.
2. 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 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.

1. DPH enforcement of nurse-to-patient staffing requirements. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In the most recently completed fiscal year (2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written and along with a request for a plan of correction. According to DPH, if there are negative patient outcomes and serious consequences due to staffing issues, then DPH will conduct a complaint validation survey.

In October of 2010, at a hearing of the Senate Health Committee on DPH’s implementation of the nurse staffing ratio law, DPH reported that it had issued 465 deficiencies since January 2004 related to nurse staffing ratio. Because this was prior to the adoption of regulations governing administrative fines, the only monetary penalty available to DPH at the time were “immediate jeopardy” penalties of $25,000, $50,000, and $75,0000 for first, second, and subsequent violations (these penalty amounts have since been increased). DPH reported that during this time period it had issued two penalties of $25,000 each for staffing violations that it determined constituted immediate jeopardy to patients.

1. Administrative penalties for hospitals. SB 1312 (Alquist, Chapter 895, Statutes of 2006) gave DPH the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. Prior to SB 1312, DPH had very limited authority to levy fines on hospitals that violated state licensing laws. SB 1312 created two levels of penalties: violations that constituted immediate jeopardy to the health and safety of a patient, and violations that do not constitute immediate jeopardy. SB 541 (Alquist, Chapter 605, Statutes of 2008) modified the administrative penalty provisions, and increased the fine amounts. Immediate jeopardy violations are now subject to a fine of up to up to $75,000 for the first penalty, $100,000 for the second penalty, and $125,000 for the third and subsequent penalties. All other violations (except minor violations, for which DPH is prohibited from assessing a violation) are subject to a fine of up to $25,000.

SB 1312 required DPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. DPH adopted these regulations in late 2013, and they went into effect on April 1, 2014. These regulations established a penalty matrix which can be modified upward or downward according to certain specified factors.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee, DPH identifies a need for a limited-term associate governmental program analyst to develop the regulations needed to implement the bill. The estimated fiscal cost from the Special Licensing Fund (Fund 3098) of the one personnel is below:

SUPPORT: (Verified 5/23/18)

SEIU California (co-source)

United Nurses Association of California/Union of Health Care Professionals (co-source)

California Labor Federation

California Nurse Association/National Nurses United

California School Nurse Organization

Congress of California Seniors

Planned Parenthood Affiliates of California

San Francisco AIDS Foundation

OPPOSITION: (Verified 5/23/18)

Association of California Healthcare Districts

California Hospital Association

ARGUMENTS IN SUPPORT: This bill is sponsored by SEIU California, which states that despite the mandated nursing ratios, hospitals repeatedly violate nurse staffing requirements. According to SEIU California, when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no administrative or criminal penalties attached to it. SEIU California states that DPH rarely circles back with facilities to ensure compliance, and violations continue. According to SEIU California, hospitals that routinely violate minimum staffing requirements jeopardize patient safety and quality of care. Moreover, SEIU California states that when nurses are coerced into unsafe staffing assignments, over their objections about patient safety, a nurse runs the risk of Board of Registered Nursing disciplinary action, and in many cases, losing their license. According to SEIU, in 2017 alone, one of the SEIU locals that represents nurses at 26 private hospitals compiled 217 nurse-generated Assignment Despite Objection forms, which detail the objections of nurses who have been given staffing assignments despite the nurses’ concerns that the assignment would violate staffing requirements and put patients at risk. According to SEIU California, nurses reported that in 45% of the reported Assignment Despite Objection forms, hospitals required them to violate the ratios or risk discipline. SEIU California states that under the penalty structure in this bill, the State of California can improve healthcare quality by ensuring improved compliance with existing law.

The California Nurses Association/National Nurses United (CNA) states in support that the nurse-to-patient ratios save lives. According to CNA, with the ratios, nurses are able to spend more time delivering care at the bedside and are more likely to identify and report changes in a patient’s condition early on, thereby avoiding many preventable complications. According to CNA, the regulations were adopted as the minimum staffing requirement, meant for the leanest staffing for the slowest shift when the patients were least acute. CNA states hospitals short-staff to save money, and this bill is a common sense proposal to put into statute the requirement to inspect for these patient protections and to penalize hospitals using a penalty that fits the violation. The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) points out in support that a peer reviewed study found that each additional patient per nurse increases the risk of patient mortality by seven percent. UNAC/UHCP states that compliance with nurse staffing ratios has been demonstrated to improve patient outcomes, but many hospitals have refused to consistently adhere to the ratios.

ARGUMENTS IN OPPOSITION: The California Hospital Association (CHA) states in opposition that this bill singles out one type of licensing violation for administrative penalties, separate from the DPH regulation adopted for that purpose. CHA states that the Legislature has expanded DPH’s enforcement authority over the past 10 years, and that DPH adopted robust regulations for determining fine amounts after receiving lengthy input. Contrary to these thoughtful and comprehensive regulations, CHA states that this bill establishes arbitrary penalty amounts for staffing ratio penalties, thus eliminating DPH’s ability to consider all relevant information when making this determination. Instead, CHA states that this bill mandates progressive fines of up to $125,000 for each staffing ratio-related deficiency. CHA states that this bill undermines DPH’s current process without good reason. The Association of California Healthcare Districts also opposes this bill, making similar arguments to CHA.

Prepared by:

5/24/18 13:42:01

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1288 (Leyva) - Health and care facilities: inspections

This bill does not meet the criteria for referral to the Suspense File.

Bill Summary:

Senate Bill 1288 requires the Department of Public Health (CDPH) to conduct periodic, unannounced inspections pertaining to nurse staffing ratios. The bill eliminates the administrative penalty schedule for incidents related to immediate jeopardy, as defined, and establishes the following administrative penalties for nurse staffing ratio violations:

• For the first and second violation, no less than $2,500 and not to exceed $25,000;
• For the third violation, $75,000.
• For the fourth violation, not less than $75,000 and not to exceed $100,000; and
• For each subsequent violation, $125,000.

Fiscal Impact:

The Department of Public Health identifies a need for a limited-term associate governmental program analyst to develop the regulations needed to implement the bill. The estimated fiscal cost from the Special Licensing Fund (Fund 3098) of the one personnel is below:

Background:

The CDPH’s Center for Health Care Quality has a Licensing and Certification Program, which regulates more than 10,000 facilities, including general acute care hospitals, home health agencies, skilled nursing facilities, and more than thirty other facility types. Currently, CDPH must conduct an unannounced inspection for a hospital no less than once every three years, and as often as necessary to ensure the quality of care being provided. In addition, the department can inspect for compliance at the same time as a federal periodic inspection, and that inspection must be done consistent with the guidance of the federal Centers for Medicare and Medicaid Services for the federal portion of the inspection.

Existing law sets the following penalty schedule against a hospital for a deficiency constituting an immediate jeopardy violation, defined 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:

• For the first, up to a maximum of $75,000.
• For the second violation, up to $100,000.
• For the third and every subsequent violation, up to $125,000.

Existing law also authorizes CDPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Current law prohibits CDPH from assessing an administrative penalty for minor violations.

SB 1312 (Alquist, Chapter 895, Statutes of 2006) required CDPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. CDPH adopted these regulations in late 2013, which became effective April 1, 2014. These regulations established the penalty matrix in the table below, which can be modified upward or downward according to certain specified factors. The percentages in the table below are to be applied to the statutory maximum penalty amounts as described in existing law.

Proposed Law:

Senate Bill 1288 requires the Department of Public Health (CDPH) to conduct periodic, unannounced inspections pertaining to nurse staffing ratios. The bill eliminates the administrative penalty schedule for incidents related to immediate jeopardy, as defined, and establishes the following administrative penalties for nurse staffing ratio violations:

• For the first and second violation, no less than $2,500 and not to exceed $25,000;
• For the third violation, $75,000.
• For the fourth violation, not less than $75,000 and not to exceed $100,000; and
• For each subsequent violation, $125,000.

The bill prohibits the specified proposed penalties from being construed to abrogate immediate jeopardy penalties as specified in existing law.

The bill specifies that a violation o f a nurse staffing regulation does not constitute a crime.

The bill also repeals a penalty schedule that become inoperative when the administrative penalty regulations were adopted in 2014.

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SENATE COMMITTEE ON HEALTH

Senator Ed Hernandez, O.D., Chair

BILL NO: SB 1288

SUBJECT: Health and care facilities: inspections

SUMMARY:

Requires periodic inspections of hospitals by the Department of Public Health to include reviews of compliance with nurse staffing ratios, and establishes administrative penalties for nurse staffing ratio violations of between $2,500 and $25,000 for a first or second violation, $75,000 for a third violation, up to $100,000 for a fourth violation, and $125,000 for each subsequent violation.

Existing law:

1. Licenses and regulates health facilities by the Department of Public Health (DPH), including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [HSC §1250 et seq.]
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 the inspection for hospitals to be conducted no less than once every three years. [HSC §1279 (g)]
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. [HSC §1276.4]
4. Establishes a structure under which DPH is permitted to assess administrative fines to 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 probability and severity of the risk that the violation presents to the patient, the facility’s history of compliance with related state and federal statutes and regulations, the demonstrated willfulness of the violation, and the extent to which the facility detected the violation and took steps to immediately correct the violation and prevent the violation from recurring. [HSC §1280.3]

1. Permits DPH to assess an administrative penalty against a 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. [HSC §1280.3 (a)]
2. Permits DPH to assess an administrative penalty of up to $25,000 per violation for those not deemed to constitute immediate jeopardy. Prohibits DPH from assessing an administrative penalty for minor violations. [HSC §1280.3 (b) and (c)]
3. 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. [HSC §1280.3 (h)]
4. Requires DPH to have full discretion to consider all factors when determining the amount of an administrative penalty. [HSC §1280.3 (a)]

This bill:

1. Requires that periodic DPH inspections of hospitals to ensure compliance with state laws and regulations include reviews of compliance with nurse staffing ratios. Prohibits a periodic inspection conducted to inspect compliance with nurse staffing ratios from being announced in advance, consistent with existing law that prohibits periodic inspections of health facilities from being announced in advance.
2. Establishes penalties for hospitals that are issued a citation for violating a nurse staffing ratio regulation, as follows:
   1. For the first and second violation, requires DPH to assess an administrative fine of not less than $2,500, and not to exceed $25,000;
   2. For a third violation, requires DPH to assess an administrative penalty of $75,000;
   3. For a fourth violation, requires DPH to assess an administrative penalty of not less than $75,000, and not to exceed $100,000; and,
   4. For each subsequent violation, requires DPH to assess an administrative penalty of $125,000.
3. Prohibits the penalties specified in 2) above from being construed to abrograte the immediate jeopardy penalties specified in existing law.
4. Specifies that a violation of a nurse staffing regulations does not constitute a crime.
5. Repeals an obsolete penalty statute that become inoperative upon the adoption of administrative penalty regulations in 2014.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, it has been reported that too many California hospitals disregard the current nurse-to-patient ratio requirements as prescribed by Title 22 regulations. SB 1288 helps to improve patient health and safety by ensuring that hospitals comply with legally mandated nurse-to-patient staffing ratios. The state must take a more proactive role by conducting unannounced visits at hospitals across California and do everything the state can to make sure that it fully enforces existing law, since the stakes are simply too high for patients. It is also important that penalties assessed are increased against repeat offender hospitals that do not comply with existing law, particularly since the lives of patients can be at stake. Moreover, beyond the clear safety implications of hospitals not observing ratio requirements, nurses can also be putting their professional livelihoods and licenses at risk due to being required to fulfill job duties outside of legally prescribed ratios.
2. 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 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.
3. DPH enforcement of nurse-to-patient staffing requirements. According to DPH, from 2008 to 2017, there have been a total of 634 nursing staff violations cited by DPH. In the most recently completed fiscal year (2016-17, there were 88 nursing staff violations. The most common units where DPH found staffing violations were the telemetry units (which is required to be at 1:5 nurse to patient ratio), medical/surgical units (1:5 ratio), and critical care units (1:2 ratio). DPH states that compliance with nurse staffing ratios is reviewed during the relicensing survey that is conducted every three years. Additionally, if a complaint is submitted, DPH will assign this to a nurse surveyor for investigation, and if patient care was affected due to the staffing ratio, a statement of deficiencies will be written and along with a request for a plan of correction. According to DPH, if there are negative patient outcomes and serious consequences due to staffing issues, then DPH will conduct a complaint validation survey.
   
   In October of 2010, at a hearing of the Senate Health Committee on DPHs implementation of the nurse staffing ratio law, DPH reported that it had issued 465 deficiencies since January 2004 related to nurse staffing ratio. Because this was prior to the adoption of regulations governing administrative fines, the only monetary penalty available to DPH at the time were “immediate jeopardy” penalties of $25,000, $50,000, and $75,0000 for first, second, and subsequent violations (these penalty amounts have since been increased). DPH reported that during this time period it had issued two penalties of $25,000 each for staffing violations that it determined constituted immediate jeopardy to patients.
4. Administrative penalties for hospitals. SB 1312 (Alquist, Chapter 895, Statutes of 2006) gave DPH the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. Prior to SB 1312, DPH had very limited authority to levy fines on hospitals that violated state licensing laws. SB 1312 created two levels of penalties: violations that constituted immediate jeopardy to the health and safety of a patient, and violations that do not constitute immediate jeopardy. SB 541 (Alquist, Chapter 605, Statutes of 2008), modified the administrative penalty provisions, and increased the fine amounts. Immediate jeopardy violations are now subject to a fine of up to up to $75,000 for the first penalty, $100,000 for the second penalty, and $125,000 for the third and subsequent penalties. All other violations (except minor violations, for which DPH is prohibited from assessing a violation) are subject to a fine of up to $25,000.
   
   SB 1312 required DPH to promulgate regulations establishing the criteria to assess administrative penalties, and listed eight factors on which to base the criteria, including the patient’s physical and mental condition, the nature, scope and severity of the violation, and the demonstrated willfulness of the violation. DPH adopted these regulations in late 2013, and they went into effect on April 1, 2014. These regulations established the penalty matrix in the table below, which can be modified upward or downward according to certain specified factors. The percentages in the table below are to be applied to the statutory maximum penalty amounts as described in 5) and 6) of existing law above:

1. Prior legislation. SB 455 (Hernandez of 2013) would have codified existing regulations requiring hospitals to have a committee annually review the reliability of its patient classification system, including regulations requiring at least one-half of this committee be composed of registered nurses (RNs) who provide direct patient care. This bill required the RNs appointed to this committee to be selected by the collective bargaining agent, if any. SB 455 would have required DPH, during every periodic state inspection of a hospital, to inspect for compliance with nurse-to-patient ratios, as specified. SB 455 was vetoed by the Governor.

SB 1246 (Hernandez of 2012) contained similar provisions to SB 455. SB 1246 was vetoed by the Governor.

SB 554 (Yee of 2011) would have required DPH to inspect for compliance with nurse-to-patient staffing ratios during periodic inspections of hospitals, similar to this bill. SB 554 also proposed to require DPH to inspect hospitals that have been cited for deficiencies related to nurse-to-patient staffing ratios for their compliance with the plan of correction. SB 554 also would have required DPH to assess administrative penalties for violations of nurse-to-patient staffing ratios and for failure to comply with an approved plan of correction related to nurse-to-patient ratios. The penalties included a $10,000 penalty for the fourth and each subsequent violation of the nurse-to-patient ratio requirements within a six-month period, and $10,000 for the failure of the hospital to comply with an approved plan of correction. These provisions were later amended out of SB 455.

SB 360 (Yee of 2009) would have required each new direct care registered nursing hire to receive and complete an orientation to the hospital and patient care unit in which he or she will be working. Nurses who have not completed this orientation would not be allowed to be assigned to direct patient care or be counted as staff in computing nurse-to-patient ratios. SB 360 was held on the Senate Appropriations suspense file.

SB 541 increased the level of administrative penalties DPH may assess against hospitals, including for deficiencies that constitute immediate jeopardy to the health or safety of patients. Required health care facilities to prevent unlawful or unauthorized access to use, or disclosure of, patients' medical information, and to established safeguards protecting the privacy of patients' medical information.

SB 1312 authorizes DPH to assess administrative penalties on hospitals for deficiencies constituting immediate jeopardy to the health and safety of a patient and those that do not constitute immediate jeopardy to patients.

AB 394 required DPH to adopt regulations specifying nurse-to-patient ratios, by unit, for general acute care hospitals, acute psychiatric hospitals and special hospitals. Required hospitals to adopt written policies and procedures for nursing staff training. Provided that the ratios shall constitute the minimum number of registered and licensed nurses that must be provided; requires hospitals to assign additional staff in accordance with a documented patient classification system.

1. Support. This bill is sponsored by SEIU California, which states that despite the mandated nursing ratios, hospitals repeatedly violate nurse staffing requirements. According to SEIU California, when DPH discovers staffing requirement violations at a hospital, DPH administers a plan of correction, which has no administrative or criminal penalties attached to it. SEIU California states that DPH rarely circles back with facilities to ensure compliance, and violations continue. According to SEIU California, hospitals that routinely violate minimum staffing requirements jeopardize patient safety and quality of care. Moreover, SEIU California states that when nurses are coerced into unsafe staffing assignments, over their objections about patient safety, a nurse runs the risk of Board of Registered Nursing disciplinary action, and in many cases, losing their license. According to SEIU, in 2017 alone, one of the SEIU locals that represents nurses at 26 private hospitals compiled 217 nurse-generated Assignment Despite Objection forms, which detail the objections of nurses who have been given staffing assignments despite the nurses’ concerns that the assignment would violate staffing requirements and put patients at risk. According to SEIU California, nurses reported that in 45% of the reported Assignment Despite Objection forms, hospitals required them to violate the ratios or risk discipline. SEIU California states that under the penalty structure in this bill, the State of California can improve healthcare quality by ensuring improved compliance with existing law.
   
   The California Nurses Association/National Nurses United (CNA) states in support that the nurse-to-patient ratios save lives. According to CNA, with the ratios nurses are able to spend more time delivering care at the bedside, and are more likely to identify and report changes in a patient’s condition early on, thereby avoiding many preventable complications. According to CNA, the regulations were adopted as the minimum staffing requirement, meant for the leanest staffing for the slowest shift when the patients were least acute. CNA states hospitals short-staff to save money, and this bill is a common sense proposal to put into statute the requirement to inspect for these patient protections and to penalize hospitals using a penalty that fits the violation. The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) points out in support that a peer reviewed study found that each additional patient per nurse increases the risk of patient mortality by seven percent. UNAC/UHCP states that compliance with nurse staffing ratios has been demonstrated to improve patient outcomes, but many hospitals have refused to consistently adhere to the ratios.
   
2. Opposition. The California Hospital Association (CHA) states in opposition that this bill would single out one type of licensing violation for administrative penalties, separate from the DPH regulation adopted for that purpose. CHA states that the Legislature has expanded DPH’s enforcement authority over the past 10 years, and that DPH adopted robust regulations for determining fine amounts after receiving lengthy input. Contrary to these thoughtful and comprehensive regulations, CHA states that this bill would establish arbitrary penalty amounts for staffing ratio penalties, thus eliminating DPH’s ability to consider all relevant information when making this determination. Instead, CHA states that this bill would mandate progressive fines of up to $125,000 for each staffing ratio-related deficiency. CHA states that this bill undermines DPH’s current process without good reason. The Association of California Healthcare Districts (ACHD) also opposes this bill, making similar arguments to CHA.
3. Policy comment. As described above, the current penalty structure for any violation of a hospital law or regulation provides for a maximum penalty of $25,000, unless the violation constituted “immediate jeopardy,” which means the violation caused or is likely to cause serious injury or death to the patient. For immediate jeopardy penalties, the maximum penalty amounts are $75,000, $100,000, and $125,000 for the first, second, or subsequent violations, respectively. However these are maximum amounts, and the statute permits DPH to fine hospitals in an amount “up to” these maximums. Further, the statute provides that after three years have passed from the date of the last issued immediate jeopardy violation, the next immediate jeopardy violation is considered a first administrative penalty and drops back down to the $75,000 maximum.
   
   In contrast, the penalty provisions in this bill for violations of the nurse staffing ratios do not provide a mechanism to “reset the clock,” and so a second or third violation, even 15 or 20 years after the first, is still a second or third violation. Additionally, the penalty amounts in this bill do not provide comparable flexibility to DPH. For example, for a third violation, it is a flat $75,000 fine, not “up to” $75,000, while a fourth violation is a minimum of $75,000 and up to $100,000, and each subsequent violation is a flat $125,000. Finally, it is not clear in this bill whether multiple violations on the same inspection visit would count as second, third and fourth violations for purposes of ratcheting up the fine amounts. For example, if during an unannounced inspection, DPH found that three patient units were out of staffing compliance, it is unclear under this bill if that means that on the same day, a hospital could have a first, second and third violation, triggering the $75,000 fine on one day.

SUPPORT AND OPPOSITION:

Support: SEIU California (co-sponsor)

United Nurses Association of California/Union of Health Care Professionals (co-sponsor)
California Labor Federation

California Nurse Association/National Nurses United

Congress of California Seniors

Planned Parenthood Affiliates of California

Oppose: Association of California Healthcare Districts

California Hospital Association

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