Under existing law, the State Department of Public Health adopted regulations that establish minimum, specific, and numerical licensed nurse-to-patient ratios by licensed nurse classification and by hospital unit within a general acute care hospital, among other health facilities. Existing regulations require licensed nurse-to-patient ratios to represent the maximum number of patients assigned to one licensed nurse at any one time, and define assigned to mean the licensed nurse has responsibility for the provision of care to a particular patient within their scope of practice.

This bill would require the department, when transmitting to a general acute care hospital the action to be taken on a substantiated violation of the regulation establishing licensed nurse-to-patient ratios, to simultaneously transmit the same information to the person who filed the claim of the violation and their collective bargaining agent or representative, if any.

The bill would further require the department, if the action to be taken does not include a fine, to simultaneously transmit a statement of the reasoning for not imposing a fine to the person who filed the claim of the violation and their collective bargaining agent or representative, if any. The bill would require the statement to discuss, among other things, the investigatory steps taken by the department to investigate the claim of the violation and any mitigating evidence relied upon by the department to justify the decision not to impose a fine.

Under existing law, the State Department of Public Health adopted regulations that establish minimum, specific, and numerical licensed nurse-to-patient ratios by licensed nurse classification and by hospital unit within a general acute care hospital, among other health facilities. Existing regulations require licensed nurse-to-patient ratios to represent the maximum number of patients assigned to one licensed nurse at any one time, and define assigned to mean the licensed nurse has responsibility for the provision of care to a particular patient within their scope of practice.

This bill would require the department, when transmitting to a general acute care hospital the action to be taken on a substantiated violation of the regulation establishing licensed nurse-to-patient ratios, to simultaneously transmit the same information to the person who filed the claim of the violation and their collective bargaining agent or representative, if any.

The bill would further require the department, if the action to be taken does not include a fine, to simultaneously transmit a statement of the reasoning for not imposing a fine to the person who filed the claim of the violation and their collective bargaining agent or representative, if any. The bill would require the statement to discuss, among other things, the investigatory steps taken by the department to investigate the claim of the violation, violation and any mitigating evidence relied upon by the department to justify the decision not to impose a fine, and an analysis of the potential danger to patients posed by the violation. fine.

Under existing law, the State Department of Public Health adopted regulations that establish minimum, specific, and numerical licensed nurse-to-patient ratios by licensed nurse classification and by hospital unit within a general acute care hospital, among other health facilities. Existing regulations require licensed nurse-to-patient ratios to represent the maximum number of patients assigned to one licensed nurse at any one time, and define assigned to mean the licensed nurse has responsibility for the provision of care to a particular patient within their scope of practice.

This bill would require the department, when transmitting to a general acute care hospital the action to be taken on a substantiated violation of the regulation establishing licensed nurse-to-patient ratios, to simultaneously transmit the same information to the person who filed the claim of the violation and their collective bargaining agent or representative, if any. The

The bill would further require the department, if the action to be taken does not include a fine, to simultaneously transmit a statement of the reasoning for not imposing a fine to the person who filed the claim of the violation and their collective bargaining agent or representative, if any. The bill would require the statement to discuss, among other things, the investigatory steps taken by the department to investigate the claim of the violation, any mitigating evidence relied upon by the department to justify the decision not to impose a fine, and an analysis of the potential danger to patients posed by the violation.

Existing law, the Zenovich-Moscone-Chacon Housing and Home Finance Act, states that the Legislature finds and declares that the subject of housing is of vital statewide importance to the health, safety, and welfare of the residents of the state for specified reasons.

This bill would make a nonsubstantive change to those provisions.

GOVERNOR'S VETO

GV Bill Id:AB 2899

Author:(Gabriel)

As Enrolled Ver:August 23, 2024

2/3 vote

SUMMARY

Requires the Department of Public Health (DPH), when transmitting the action to be taken on a substantiated violation of Nurse-to-Patient Ratios to a general acute care hospital, to simultaneously transmit the same information to the person who filed the claim of violation and their collective bargaining agent or representative if any.

Governor's Veto Message

This bill would require the California Department of Public Health (CDPH) to notify a hospital, complainant, and their collective bargaining agent of any actions taken on substantiated violations of nurse-to-patient ratios. Further, if no fine is imposed, CDPH must prepare and submit a statement of reasoning to the complainant and their representative.

Currently, CDPH publicly posts detailed findings of its investigations of nurse-to-patient ratios on its Cal Health Find Database website and informs the complainant of the action. The publicly posted information includes a description of the investigation, CDPH's determinations, and the evidence considered. The database also includes the number of penalties assessed against a facility for nurse-to-patient ratio violations.

Nurse-to-patient ratios are important and CDPH takes reports of potential violations seriously. However, the requirements of AB 2899 are duplicative.

COMMENTS

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. 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. The nurse-to-patient ratio regulations require that minimum ratios be met at all times.

Effectiveness of nurse-to-patient ratios. According to a 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 RNs and licensed practical nurses by up to 33% compared to the expected rate without the law.

Administrative penalties for hospitals. DPH has the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. There are two levels of penalties: violations that constitute immediate jeopardy to the health and safety of a patient; and, violations that do not constitute immediate jeopardy. Immediate jeopardy violations are 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.

Nurse-to-Patient Ratio violations and enforcement. AB 1063 (Gabriel) of 2023 would have required DPH to conduct an annual review of its enforcement of the nurse-to-patient ratio regulations and submit a report to the Legislature on its findings. AB 1063 was vetoed by Governor Newsome, who in his veto message instructed DPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the DPH Center for Health Care Quality's State Enforcement Tracking Dashboard (Dashboard). DPH updated the existing Electronic Licensing Management System (ELMS) on March 4, 2024 to include a category specific to nurse-to-patient ratio violations. ELMS is an internal database that tracks all facility licensure information including applications, licensure history, administration, program flexibility, penalties, etc. As new nurse-to-patient ratio deficiencies are finalized they will begin showing on the Dashboard. DPH states that finalization of any administrative penalties involves an internal management and legal review process. Any nurse-to-patient ratio violation from March 4, 2024 going forward would follow the same process as all other administrative penalties but would be keyed in the system differently for tracking purposes. The Dashboard contains a search tool that provides online access to all state enforcement actions. Users may search the database by enforcement action attributes such as penalty type, facility, or issue date, or with a key word search against the investigation narratives.

In the last three years DPH has received a total of 1,328 nurse-to-patient ratio violation complaints and facility reported incidents (FRIs). DPH may receive multiple complaints for the same violation (e.g., three nurses at the same facility report the same understaffed shift to DPH). Each complaint received represents a single entry in ELMS. However, DPH district level investigators will identify multiple complaints for the same violation and will consolidate their investigation activities as appropriate. Subsequently, the publicly accessible State Enforcement Actions Dashboard will reflect a single deficiency that was substantiated.

Of the 1,328 complaints and FRIs received in the last three years, 1,071 complaints were substantiated with deficiencies and 28 FRIs were substantiated with deficiencies. All 1,099 complaints and FRIs substantiated with deficiencies required a Plan of Correction. DPH imposed a fine for 25 of these violations; five of those were issued in conjunction with a finding of harm to the patient and there were five adverse events that involved a nurse-patient ratio violation.

This bill requires DPH to notify an individual making a complaint regarding ratio violations and their collective bargaining agents of the action to be taken on substantiated violations, and if the action to be taken does not include a fine, to include a statement of the reasoning for not imposing a fine. This bill requires the statement of reasoning to discuss the manner in which the violation came to the attention of DPH, the investigatory steps taken by DPH to investigate the claim of the violation, the determinations made by DPH regarding the claimed violation, and any mitigating evidence relied upon by DPH to justify the decision not to impose a fine.

According to the Author

The nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. The author states that this bill will ensure that DPH is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring DPH to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require DPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.

Arguments in Support

The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) is the sponsor of this bill and states that when DPH finds a substantiated violation of nurse staffing ratios, it is required to send information to the hospital regarding the action to be taken on that violation. However, the party filing a report of a staffing violation, typically an overworked nurse in the hospital, is not alerted as to any action taken by DPH. UNAC/UHCP notes that this bill will require DPH to provide a statement of reasons for not imposing a fine despite finding a substantiated violation. UNAC/UHCP concludes that this bill brings sunlight to a complaint investigation process that currently creates suspicion and distrust among the nursing staff at hospitals, and that providing the information will help the nursing community better understand the regulator landscape surround the enforcement of nurse staffing ratios.

Arguments in Opposition

There is no known opposition to this bill.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, DPH stated total implementation costs would depend on the complexity of the required information technology (IT) infrastructure, which DPH was unable to determine at the time. If the current data collection system can be modified, DPH projects one-time costs in fiscal year (FY) 2025-26 of approximately $150,000 to $300,000 to fund IT expenditures for modifying complaint intake to include fields to capture basic information about a complainant's collective bargaining agent or representative, if any (Licensing and Certification Fund). If DPH must develop a supplementary complaint database, DPH projects total IT costs of approximately $4.5 million beginning in FY 2025-26 through FY 2028-29 for engagement in a Project Approval Lifecycle planning process, and development, implementation, and maintenance of the database (Licensing and Certification Fund). DPH also anticipates additional workload requiring a 0.25 full-time equivalent permanent facilities evaluator nurse at a cost of approximately $72,000 annually, beginning in FY 2025-26 and ongoing, to develop an estimated 100 statements of reasoning per year to the person who filed the complaint. (Licensing and Certification Fund).

VOTES

ASM HEALTH: 15-0-1

YES: Bonta, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Schiavo, Weber

ABS, ABST OR NV: Waldron

ASM APPROPRIATIONS: 14-1-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

NO: Dixon

ASSEMBLY FLOOR: 67-0-13

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

ABS, ABST OR NV: Calderon, Cervantes, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Mathis, Luz Rivas, Sanchez

SENATE FLOOR: 27-1-12

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Blakespear, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Min, Newman, Padilla, Portantino, Roth, Rubio, Stern, Umberg, Wiener

NO: Dahle

ABS, ABST OR NV: Atkins, Becker, Bradford, Menjivar, Nguyen, Niello, Ochoa Bogh, Seyarto, Skinner, Smallwood-Cuevas, Wahab, Wilk

UPDATED

VERSION: August 23, 2024

CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0005115

 THIRD READING  

Bill No: AB 2899

Author: Gabriel (D)

Amended: 4/11/24 in Assembly

Vote: 21

SENATE HEALTH COMMITTEE: 9-0, 6/26/24

AYES: Roth, Glazer, Gonzalez, Hurtado, Limón, Menjivar, Rubio, Smallwood-Cuevas, Wiener

NO VOTE RECORDED: Nguyen, Grove

SENATE APPROPRIATIONS COMMITTEE: 6-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Wahab

NO VOTE RECORDED: Seyarto

ASSEMBLY FLOOR: 67-0, 5/22/24 - See last page for vote

SUBJECT: General acute care hospitals: licensed nurse-to-patient ratios

SOURCE: United Nurses Associations of California

Union of Health Care Professionals

DIGEST:

This bill requires the California Department of Public Health, when it transmits to a hospital the action to be taken on a substantiated violation of nurse-to-patient staffing ratios, to simultaneously transmit the same information to the person who filed the claim of violation, and if the action taken does not include a fine, to include a statement of reasoning for not imposing a fine.

ANALYSIS:

Existing law:

1. Licenses and regulates health facilities by the California Department of Public Health (CDPH), including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [Health & Safety Code (HSC) §1250, et seq.]
2. Requires CDPH 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]
3. Establishes, in regulations, required nurse-to-patient ratios by unit or clinical area. Requires, the nurse-to-patient ratio in critical care units to be 1:2 or fewer at all times, and defines “critical care unit” as a nursing unit of a general acute care hospital that provides one of the following services: an intensive care service; a burn center; a coronary care service; an acute respiratory service; or, an intensive care newborn nursery service. [CCR Title 22, §70217]
4. Permits CDPH 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)]
5. Permits CDPH 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)]
6. Requires CDPH, notwithstanding the penalty provisions for other violations as described in 4) and 5) above, to assess hospitals a $15,000 penalty for a first violation of nurse-to-patient staffing ratios, and $30,000 for the second and each subsequent violation. However, specifies that a general acute care hospital is not subject to an administrative penalty if the hospital can demonstrate to the satisfaction of CDPH all of the following:
   1. That any fluctuation in required staffing levels was unpredictable and uncontrollable;
   2. Prompt efforts were made to made to maintain required staffing levels; and,
   3. In making these efforts, the hospital immediately used and subsequently exhausted the hospital’s on-call list of nurses and the charge nurse. [HSC §1280.3(f)]

This bill:

1. Requires CDPH, when it transmits to a general acute care hospital the action to be taken on a substantiated violation of nurse-to-patient staffing ratios, to simultaneously transmit the same information, including a corrective action plan, to the person who filed the claim of violation and their collective bargaining representative, if any.
2. Requires CDPH, if the action to be taken on a substantiated violation of nurse-to-patient staffing ratios does not include a fine, to also simultaneously transmit a statement of reasoning for not imposing a fine to the person who filed the claim of the violation and their collective bargaining representative, if any.
3. Requires the state of reasoning required in 2) above to discuss the manner in which the violation came to the attention of CDPH, the investigatory steps taken to investigate the claim of the violation, the determinations made regarding the claimed violation, and any mitigating evidence relied upon to justify the decision not to impose a fine.

Comments

1. Author’s statement. According to the author, the nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. This bill will ensure that CDPH is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring CDPH to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require CDPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.
2. Nurse staffing 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 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 or other “critical care units,” one-to-three in a step down unit, one-to-four in a telemetry unit, and one-to-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. However, if a health care emergency causes a change in the number of patients on a unit, a hospital is required to demonstrate that prompt efforts were made to maintain required staffing levels.
3. Data on nurse-to-patient ratio enforcement. According to CDPH, within the past three years, there were 1,328 complaints and facility-initiated incidents related to nurse-to-patient ratio violations. CDPH notes that it can receive multiple complains for the same violation, for example if three nurses at the same facility report the same understaffed shift. Each complaint is entered in the Electronic Licensing Management System, but district-level investigators may identify multiple complaints for the same violation and consolidate their investigation activities as appropriate. In this example, the system for tracking deficiencies will only reflect a single deficiency that was substantiated. Of the 1,328 complaints and facility-initiated incidents received in the past three years, 1,071 complaints and 28 facility-initiated incidents were substantiated with deficiencies, and all of these required a Plan of Correction. CDPH imposed a fine for 25 of these violations, and five of those were issued in conjunction with a finding of harm to the patient. According to CDPH, the most common units where staffing violations were found 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. According to CDPH, nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. SB 227 (Leyva, Chapter 843, Statutes of 2019), took effect on January 1, 2020 to provide fine authority specific to nurse-to-patient ratios, which is $15,000 for a first violation, and $30,000 for subsequent violations, with specified limitations.
   
   Last year, AB 1063 (Gabriel), among other provisions, would have required CDPH to conduct an annual review of its enforcement of the nurse-to-patient ratios, and to submit a report to the Legislature on its findings, including the number of reports received alleging violations and the outcome of any investigations. The Governor vetoed this bill, and in his veto message, indicated that he was directing CDPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the Center for Health Care Quality’s State Enforcement Tracking Dashboard (Dashboard). On March 4, 2024, CDPH updated the Electronic Licensing Management System to include a category specific to nurse-to-patient ratio violations, and that moving forward, this information (which is specific to when an administrative penalty has been assessed against a facility, and does not include all substantiated violations) will be available on the Dashboard. As of June 18, 2024, the Dashboard shows that there have been 13 enforcement actions related to nurse-to-patient ratios which resulted in an administrative penalty (fine), totaling $345,000. The earliest citation that appears on the Dashboard was assessed in October of 2023, and the most recent was in May of this year. All assessments were either $15,000 for a first violation, or $30,000 for a repeat violation, pursuant to SB 227 (Leyva, Chapter 843, Statutes of 2019).

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee, CDPH estimates the following costs (Licensing and Certification Fund):

• Ongoing costs of approximately $665,000 beginning in 2026-27, and additional costs of $430,000 in 2026-27 and $515,000 in 2027-28, for state administration.
• One-time information technology (IT) costs for Project Approval Lifecycle (PAL) review and approval. Costs to begin this process are estimated to be approximately $1.6 million over 17 months. The process would include an initial analysis to develop comprehensive planning that ensures the appropriate IT solution is selected and managed. This cost would be further refined and updated after all the required PAL planning stages are completed.

SUPPORT: (Verified 8/8/24)

United Nurses Associations of California (co-source)

Union of Health Care Professionals (co-source)

American Federation of State, County and Municipal Employees

California Labor Federation

California State Council of Service Employees International Union

National Union of Healthcare Workers

OPPOSITION: (Verified 8/8/24)

None received

ARGUMENTS IN SUPPORT: This bill is sponsored by the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP) to ensure transparency in the investigations into complaints about nurse staffing ratios. UNAC/UHCP states that currently, when CDPH finds a substantiated violation of the ratios, it is required to send information to the hospital regarding the action to be taken based on that violation, but the party filing a report of a violation – typically an overworked nurse – is not alerted as to any action taken by CDPH. By requiring CDPH to provide the same information that was provided to the hospital, the nurses that feel the brunt of staffing ratio violations will be apprised of the results of their complaints. UNAC/UHCP states that this bill further requires CDHP to shed light on its determinations as to whether or not to fine a hospital for nurse staffing ratio violations. In short, UNAC/UHCP states this bill brings sunlight to a complaint investigation process that currently creates a lot of suspicion and distrust among the nursing staff at hospitals. SEIU California, the California Labor Federation, the National Union of Healthcare Workers, and the American Federation of State, County, and Municipal Employees also support this bill for similar reasons.

ASSEMBLY FLOOR: 67-0, 5/22/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Calderon, Cervantes, Megan Dahle, Dixon, Essayli, Flora, Vince Fong, Friedman, Gallagher, Holden, Mathis, Luz Rivas, Sanchez

Prepared by: Vincent D. Marchand / HEALTH / (916) 651-4111

8/18/24 17:50:16

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2899 (Gabriel) - General acute care hospitals: licensed nurse-to-patient ratios

Bill Summary:

AB 2899 would require the California Department of Public Health (CDPH), when it transmits to a hospital the action to be taken on a substantiated violation of nurse-to-patient staffing ratios, to simultaneously transmit the same information to the person who filed the claim of violation.

Fiscal Impact:

The CDPH estimates the following costs (Licensing and Certification Fund):

• Ongoing costs of approximately $665,000 beginning in 2026-27, and additional costs of $430,000 in 2026-27 and $515,000 in 2027-28, for state administration.
• One-time information technology (IT) costs for Project Approval Lifecycle (PAL) review and approval. Costs to begin this process are estimated to be approximately $1.6 million over 17 months. The process would include an initial analysis to develop comprehensive planning that ensures the appropriate IT solution is selected and managed. This cost would be further refined and updated after all the required PAL planning stages are completed.

Background:

Current law requires CDPH 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. The regulations implementing the nurse-to-patient ratios law set the minimum ratio of nurse-to-patient by unit. 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. However, if a health care emergency causes a change in the number of patients on a unit, a hospital is required to demonstrate that prompt efforts were made to maintain required staffing levels. Existing law authorizes CDPH to assess administrative penalties for violations.

Proposed Law:

Specific provisions of the bill would:

• Require that when the CDPH transmits to a general acute care hospital the action to be taken on a substantiated violation of nurse-to-patient ratio regulations, the department must simultaneously transmit the same information regarding the action to be taken, including, but not limited to, a corrective action plan, to the person who filed the claim of the violation and their collective bargaining agent or representative, if any.
• Require that if the action to be taken on a violation does not include a fine, the CDPH must also simultaneously transmit a statement of the reasoning, as specified, for not imposing a fine to the person who filed the claim of the violation and their collective bargaining agent or representative, if any.

-- END --

SENATE COMMITTEE ON HEALTH

Senator Richard Roth, Chair

BILL NO: AB 2899

SUBJECT: General acute care hospitals: licensed nurse-to-patient ratios

SUMMARY:

Requires the California Department of Public Health, when it transmits to a hospital the action to be taken on a substantiated violation of nurse-to-patient staffing ratios, to simultaneously transmit the same information to the person who filed the claim of violation, and if the action taken does not include a fine, to include a statement of reasoning for not imposing a fine.

Existing law:

1. Licenses and regulates health facilities by the California Department of Public Health (CDPH), including general acute care hospitals, acute psychiatric hospitals, and special hospitals (hospitals). [HSC §1250, et seq.]
2. Requires CDPH 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]
3. Establishes, in regulations, required nurse-to-patient ratios by unit or clinical area. Requires, the nurse-to-patient ratio in critical care units to be 1:2 or fewer at all times, and defines “critical care unit” as a nursing unit of a general acute care hospital that provides one of the following services: an intensive care service; a burn center; a coronary care service; an acute respiratory service; or, an intensive care newborn nursery service. [CCR Title 22, §70217]
4. Permits CDPH 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)]
5. Permits CDPH 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)]
6. Requires CDPH, notwithstanding the penalty provisions for other violations as described in 4) and 5) above, to assess hospitals a $15,000 penalty for a first violation of nurse-to-patient staffing ratios, and $30,000 for the second and each subsequent violation. However, specifies that a general acute care hospital is not subject to an administrative penalty if the hospital can demonstrate to the satisfaction of CDPH all of the following:
   1. That any fluctuation in required staffing levels was unpredictable and uncontrollable;
   2. Prompt efforts were made to made to maintain required staffing levels; and,
   3. In making these efforts, the hospital immediately used and subsequently exhausted the hospital’s on-call list of nurses and the charge nurse. [HSC §1280.3(f)]

This bill:

1. Requires CDPH, when it transmits to a general acute care hospital the action to be taken on a substantiated violation of nurse-to-patient staffing ratios, to simultaneously transmit the same information, including a corrective action plan, to the person who filed the claim of violation and their collective bargaining representative, if any.
2. Requires CDPH, if the action to be taken on a substantiated violation of nurse-to-patient staffing ratios does not include a fine, to also simultaneously transmit a statement of reasoning for not imposing a fine to the person who filed the claim of the violation and their collective bargaining representative, if any.
3. Requires the state of reasoning required in 2) above to discuss the manner in which the violation came to the attention of CDPH, the investigatory steps taken to investigate the claim of the violation, the determinations made regarding the claimed violation, and any mitigating evidence relied upon to justify the decision not to impose a fine.

FISCAL EFFECT:

According to the Assembly Appropriations Committee, CDPH stated total implementation costs would depend on the complexity of the required information technology (IT) infrastructure, which CDPH was unable to determine at the time. If the current data collection system can be modified, CDPH projects one-time costs in fiscal year (FY) 2025-26 of approximately $150,000 to $300,000 to fund IT expenditures for modifying complaint intake to include fields to capture basic information about a complainant’s collective bargaining agent or representative, if any (Licensing and Certification Fund). If CDPH must develop a supplementary complaint database, CDPH projects total IT costs of approximately $4.5 million beginning in FY 2025-26 through FY 2028-29 for engagement in a Project Approval Lifecycle planning process, and development, implementation, and maintenance of the database (Licensing and Certification Fund). CDPH also anticipates additional workload requiring a 0.25 full-time equivalent permanent facilities evaluator nurse at a cost of approximately $72,000 annually, beginning in FY 2025-26 and ongoing, to develop an estimated 100 statements of reasoning per year to the person who filed the complaint. (Licensing and Certification Fund).

PRIOR VOTES:

COMMENTS:

1. Author’s statement. According to the author, the nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. This bill will ensure that CDPH is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring CDPH to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require CDPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.
2. Nurse staffing 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 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 or other “critical care units,” one-to-three in a step down unit, one-to-four in a telemetry unit, and one-to-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. However, if a health care emergency causes a change in the number of patients on a unit, a hospital is required to demonstrate that prompt efforts were made to maintain required staffing levels.
3. Data on nurse-to-patient ratio enforcement. According to CDPH, within the past three years, there were 1,328 complaints and facility-initiated incidents related to nurse-to-patient ratio violations. CDPH notes that it can receive multiple complains for the same violation, for example if three nurses at the same facility report the same understaffed shift. Each complaint is entered in the Electronic Licensing Management System, but district-level investigators may identify multiple complaints for the same violation and consolidate their investigation activities as appropriate. In this example, the system for tracking deficiencies will only reflect a single deficiency that was substantiated. Of the 1,328 complaints and facility-initiated incidents received in the past three years, 1,071 complaints and 28 facility-initiated incidents were substantiated with deficiencies, and all of these required a Plan of Correction. CDPH imposed a fine for 25 of these violations, and five of those were issued in conjunction with a finding of harm to the patient. According to CDPH, the most common units where staffing violations were found 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. According to CDPH, nurse staffing was added to the statewide survey tool used during hospital inspections beginning in 2016. SB 227 (Leyva, Chapter 843, Statutes of 2019), took effect on January 1, 2020 to provide fine authority specific to nurse-to-patient ratios, which is $15,000 for a first violation, and $30,000 for subsequent violations, with specified limitations.
   
   Last year, AB 1063 (Gabriel), among other provisions, would have required CDPH to conduct an annual review of its enforcement of the nurse-to-patient ratios, and to submit a report to the Legislature on its findings, including the number of reports received alleging violations and the outcome of any investigations. The Governor vetoed this bill, and in his veto message, indicated that he was directing CDPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the Center for Health Care Quality’s State Enforcement Tracking Dashboard (Dashboard). On March 4, 2024, CDPH updated the Electronic Licensing Management System to include a category specific to nurse-to-patient ratio violations, and that moving forward, this information (which is specific to when an administrative penalty has been assessed against a facility, and does not include all substantiated violations) will be available on the Dashboard. As of June 18, 2024, the Dashboard shows that there have been 13 enforcement actions related to nurse-to-patient ratios which resulted in an administrative penalty (fine), totaling $345,000. The earliest citation that appears on the Dashboard was assessed in October of 2023, and the most recent was in May of this year. All assessments were either $15,000 for a first violation, or $30,000 for a repeat violation, pursuant to SB 227 (Leyva, Chapter 843, Statutes of 2019).
   
4. Prior legislation. AB 1063 (Gabriel of 2023) would have required CDPH to conduct an annual review of its enforcement of the nurse-to-patient ratios, and to submit a report to the Legislature on its findings, including the number of reports received alleging violations and the outcome of any investigations. AB 1063 would have additionally required CDPH, at least once every two years, to hold a public hearing to receive input from direct care nurses and other stakeholders, and requires the input to be summarized in the report along with a plan to implement the suggestions received, or an explanation as to why those suggestions were rejected. AB 1063 was vetoed by Governor Newsom, who stated: “I agree it is important to ensure nurse-to-patient staffing ratios are enforced properly for patient safety and maintaining the nursing workforce. However, much of the information this bill seeks to document is already publicly available. Further, this Administration prioritizes ongoing and open engagement with stakeholders. A biennial, public hearing is unnecessary for the state to receive input and make changes. I am directing CDPH to continue actively consulting with nurses and their representative labor groups to identify additional opportunities to increase transparency and communication. Further, I have asked CDPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the Center for Health Care Quality's State Enforcement Tracking Dashboard.”
   
   AB 1422 (Gabriel, Chapter 716, Statutes of 2021) requires applications by health facilities for program flexibility to designate a bed in a critical care unit as requiring a lower level of care to be posted on CDPH’s website, and requires CDPH to solicit public comment on the application for at least 30 days.
   
   SB 637 (Newman of 2021), as passed by the Senate Health Committee, would have required hospitals to report weekly during a health-related state of emergency, and monthly at all other times, information on whether the hospital is experiencing a staffing shortage of nurses, or has experienced any layoffs, furloughs, or repeated shift cancellations of nurses. SB 637 would have required hospitals to report weekly during a health-related state of emergency, and monthly at all other times, until January 1, 2025, information regarding COVID-19-positive staff, including number of staff and facility personnel who have tested positive, or are suspected positive, and total number of deaths of staff who are positive or suspected positive for COVID-19. Additionally, SB 637 would have required a licensed health facility to post any approval granted by CDPH for program flexibility immediately adjacent to the health facility’s license. These provisions were amended out of SB 637.
   
   SB 227 (Leyva, Chapter 843, Statutes of 2019) requires periodic inspections of hospitals by CDPH 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 each subsequent violation.
   
   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. SB 455 would have required the RNs appointed to this committee to be selected by the collective bargaining agent, if any. SB 455 would have required CDPH, during every periodic state inspection of a hospital, to inspect for compliance with nurse-to-patient ratios, as specified. SB 455 was vetoed by Governor Brown, who stated that it restated existing law, which requires CDPH to inspect hospital compliance with nurse-to-patient rations, and that the bill directs decisions that are best left at the local level.
   
   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.
   
   AB 394 (Kuehl, Chapter 945, Statutes of 1999) requires CDPH to adopt regulations specifying nurse-to-patient ratios, by unit, for general acute care hospitals, acute psychiatric hospitals and special hospitals. AB 394 requires hospitals to adopt written policies and procedures for nursing staff training. AB 394 provides 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.
5. Support. This bill is sponsored by the United Nurses Association of California/Union of Health Care Professionals (UNAC/UHCP) to ensure transparency in the investigations into complaints about nurse staffing ratios. UNAC/UHCP states that currently, when CDPH finds a substantiated violation of the ratios, it is required to send information to the hospital regarding the action to be taken based on that violation, but the party filing a report of a violation – typically an overworked nurse – is not alerted as to any action taken by CDPH. By requiring CDPH to provide the same information that was provided to the hospital, the nurses that feel the brunt of staffing ratio violations will be apprised of the results of their complaints. UNAC/UHCP states that this bill further requires CDHP to shed light on its determinations as to whether or not to fine a hospital for nurse staffing ratio violations. In short, UNAC/UHCP states this bill brings sunlight to a complaint investigation process that currently creates a lot of suspicion and distrust among the nursing staff at hospitals. SEIU California, the California Labor Federation, the National Union of Healthcare Workers, and the American Federation of State, County, and Municipal Employees also support this bill for similar reasons.

SUPPORT AND OPPOSITION:

Support: United Nurses Associations of California/Union of Health Care Professionals (sponsor)

American Federation of State, County and Municipal Employees
California Labor Federation
California State Council of Service Employees International Union
National Union of Healthcare Workers

Oppose: None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2899

Author:(Gabriel)

As Amended Ver:April 11, 2024

Majority vote

SUMMARY

Requires the Department of Public Health (DPH), when transmitting the action to be taken on a substantiated violation of Nurse-to-Patient Ratios to a general acute care hospital, to simultaneously transmit the same information to the person who filed the claim of violation and their collective bargaining agent or representative if any.

Major Provisions

COMMENTS

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. 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. The nurse-to-patient ratio regulations require that minimum ratios be met at all times.

Effectiveness of nurse-to-patient ratios. According to a 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 RNs and licensed practical nurses by up to 33% compared to the expected rate without the law.

Administrative penalties for hospitals. DPH has the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. There are two levels of penalties: violations that constitute immediate jeopardy to the health and safety of a patient; and, violations that do not constitute immediate jeopardy. Immediate jeopardy violations are 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.

Nurse-to-Patient Ratio violations and enforcement. AB 1063 (Gabriel) of 2023 would have required DPH to conduct an annual review of its enforcement of the nurse-to-patient ratio regulations and submit a report to the Legislature on its findings. AB 1063 was vetoed by Governor Newsome, who in his veto message instructed DPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the DPH Center for Health Care Quality's State Enforcement Tracking Dashboard (Dashboard). DPH updated the existing Electronic Licensing Management System (ELMS) on March 4, 2024 to include a category specific to nurse-to-patient ratio violations. ELMS is an internal database that tracks all facility licensure information including applications, licensure history, administration, program flexibility, penalties, etc. As new nurse-to-patient ratio deficiencies are finalized they will begin showing on the Dashboard. DPH states that finalization of any administrative penalties involves an internal management and legal review process. Any nurse-to-patient ratio violation from March 4, 2024 going forward would follow the same process as all other administrative penalties but would be keyed in the system differently for tracking purposes. The Dashboard contains a search tool that provides online access to all state enforcement actions. Users may search the database by enforcement action attributes such as penalty type, facility, or issue date, or with a key word search against the investigation narratives.

In the last three years DPH has received a total of 1,328 nurse-to-patient ratio violation complaints and facility reported incidents (FRIs). DPH may receive multiple complaints for the same violation (e.g., three nurses at the same facility report the same understaffed shift to DPH). Each complaint received represents a single entry in ELMS. However, DPH district level investigators will identify multiple complaints for the same violation and will consolidate their investigation activities as appropriate. Subsequently, the publicly accessible State Enforcement Actions Dashboard will reflect a single deficiency that was substantiated.

Of the 1,328 complaints and FRIs received in the last three years, 1,071 complaints were substantiated with deficiencies and 28 FRIs were substantiated with deficiencies. All 1,099 complaints and FRIs substantiated with deficiencies required a Plan of Correction. DPH imposed a fine for 25 of these violations; five of those were issued in conjunction with a finding of harm to the patient and there were five adverse events that involved a nurse-patient ratio violation.

This bill requires DPH to notify an individual making a complaint regarding ratio violations and their collective bargaining agents of the action to be taken on substantiated violations, and if the action to be taken does not include a fine, to include a statement of the reasoning for not imposing a fine. This bill requires the statement of reasoning to discuss the manner in which the violation came to the attention of DPH, the investigatory steps taken by DPH to investigate the claim of the violation, the determinations made by DPH regarding the claimed violation, and any mitigating evidence relied upon by DPH to justify the decision not to impose a fine.

According to the Author

The nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. The author states that this bill will ensure that DPH is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring DPH to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require DPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.

Arguments in Support

The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) is the sponsor of this bill and states that when DPH finds a substantiated violation of nurse staffing ratios, it is required to send information to the hospital regarding the action to be taken on that violation. However, the party filing a report of a staffing violation, typically an overworked nurse in the hospital, is not alerted as to any action taken by DPH. UNAC/UHCP notes that this bill will require DPH to provide a statement of reasons for not imposing a fine despite finding a substantiated violation. UNAC/UHCP concludes that this bill brings sunlight to a complaint investigation process that currently creates suspicion and distrust among the nursing staff at hospitals, and that providing the information will help the nursing community better understand the regulator landscape surround the enforcement of nurse staffing ratios.

Arguments in Opposition

There is no known opposition to this bill.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, DPH stated total implementation costs would depend on the complexity of the required information technology (IT) infrastructure, which DPH was unable to determine at the time. If the current data collection system can be modified, DPH projects one-time costs in fiscal year (FY) 2025-26 of approximately $150,000 to $300,000 to fund IT expenditures for modifying complaint intake to include fields to capture basic information about a complainant’s collective bargaining agent or representative, if any (Licensing and Certification Fund). If DPH must develop a supplementary complaint database, DPH projects total IT costs of approximately $4.5 million beginning in FY 2025-26 through FY 2028-29 for engagement in a Project Approval Lifecycle planning process, and development, implementation, and maintenance of the database (Licensing and Certification Fund). DPH also anticipates additional workload requiring a 0.25 full-time equivalent permanent facilities evaluator nurse at a cost of approximately $72,000 annually, beginning in FY 2025-26 and ongoing, to develop an estimated 100 statements of reasoning per year to the person who filed the complaint. (Licensing and Certification Fund).

VOTES

ASM HEALTH: 15-0-1

YES: Bonta, Aguiar-Curry, Arambula, Wendy Carrillo, Flora, Haney, Jones-Sawyer, Maienschein, McCarty, Joe Patterson, Rodriguez, Sanchez, Santiago, Schiavo, Weber

ABS, ABST OR NV: Waldron

ASM APPROPRIATIONS: 14-1-0

YES: Wicks, Sanchez, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Jim Patterson, Pellerin, Ta, Villapudua

NO: Dixon

UPDATED

VERSION: April 11, 2024

CONSULTANT: Lara Flynn / HEALTH / (916) 319-2097 FN: 0003136

Date of Hearing: May 1, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2899

Author:(Gabriel) – As Amended Ver:April 11, 2024

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

SUMMARY:

This bill requires the California Department of Public Health (CDPH), when transmitting to a general acute care hospital (hospital) the action to be taken on a violation of nurse-to-patient ratio rules, to simultaneously transmit the same information to the person who filed the claim of violation and their collective bargaining agent or representative, if any.

If the corrective action does not include a fine, CDPH must also provide a statement explaining this decision and specified information about the claimed violation, investigation, determinations regarding the violation, and the decision to not impose a fine.

FISCAL EFFECT:

CDPH stated total implementation costs would depend on the complexity of the required information technology (IT) infrastructure, which CDPH was unable to determine at the time. If the current data collection system can be modified, CDPH projects one-time costs in fiscal year (FY) 2025-26 of approximately $150,000 to $300,000 to fund IT expenditures for modifying complaint intake to include fields to capture basic information about a complainant’s collective bargaining agent or representative, if any (Licensing and Certification Fund).

If CDPH must develop a supplementary complaint database, CDPH projects total IT costs of approximately $4.5 million beginning in FY 2025-26 through FY 2028-29 for engagement in a Project Approval Lifecycle (PAL) planning process, and development, implementation, and maintenance of the database (Licensing and Certification Fund).

CDPH also anticipates additional workload requiring a 0.25 full-time equivalent permanent facilities evaluator nurse at a cost of approximately $72,000 annually, beginning in FY 2025-26 and ongoing, to develop an estimated 100 statements of reasoning per year to the person who filed the complaint. (Licensing and Certification Fund).

COMMENTS:

1. Purpose. This bill is sponsored by United Nurses Associations of California and Union of Health Care Professionals (UNAC/UHCP). According to the author:

The nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. This bill will ensure that the California Department of Health is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring the department to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require CDPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.

1. Background.

Nurse-to-patient 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. Before California had specific nurse-to-patient ratios, regulations required hospitals to establish a patient classification system, a method by which hospitals establish staffing requirements by unit, patient, and shift. The regulations implementing the AB 394 nurse-to-patient ratios set the minimum ratio of nurses to patient by unit, for example, 1:1 in operating rooms, 1:2 in intensive care units (ICUs) and labor and delivery, and 1:5 in general medical-surgical units. These regulations also incorporated the patient classification system requirement.

Nurse-to-Patient Ratio Violations and Enforcement. AB 1063 (Gabriel), of the current legislative session, would have required CDPH to conduct an annual review of its enforcement of the nurse-to-patient ratio regulations and submit a report to the Legislature. AB 1063 was vetoed by Governor Newsom, whose veto message instructed CDPH to update its hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this information on the CDPH Center for Health Care Quality's State Enforcement Tracking Dashboard (Dashboard). CDPH updated the existing Electronic Licensing Management System (ELMS) on March 4, 2024, to include a category specific to nurse-to-patient ratio violations. The Dashboard contains a search tool that provides online access to all state enforcement actions. Users may search the database by enforcement action attributes such as penalty type, facility, or issue date, or with a key word search against the investigation narratives.

In the last three years, CDPH has received 1,328 nurse-to-patient ratio violation complaints and facility-reported incidents (FRIs). CDPH may receive multiple complaints for the same violation. Of the 1,328 complaints and FRIs received in the last three years, 1,071 complaints were substantiated with deficiencies and 28 FRIs were substantiated with deficiencies. All 1,099 complaints and FRIs substantiated with deficiencies required a Plan of Correction. CDPH imposed a fine for 25 of these violations; five of those were issued in conjunction with a finding of harm to the patient and there were five adverse events that involved a nurse-patient ratio violation.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: April 9, 2024

ASSEMBLY COMMITTEE ON HEALTH

Mia Bonta, Chair

ABPCA Bill Id:AB 2899 (

Author:(Gabriel) – As Amended Ver:April 1, 2024

SUBJECT: General acute care hospitals: licensed nurse-to-patient ratios.

SUMMARY: Requires the Department of Public Health (DPH), when transmitting the action to be taken on a substantiated violation of Nurse-to-Patient Ratios to a general acute care hospital (GACH), to simultaneously transmit the same information to the person who filed the claim of violation and their collective bargaining agent or representative if any. Specifically, this bill:

1. Requires DPH, when transmitting the action to be taken on a substantiated violation of Nurse-to-Patient Ratios to a GACH, to simultaneously transmit the same information to the person who filed the claim of violation and their collective bargaining agent or representative if any.
2. Requires DPH, if the action to be taken does not include a fine, to simultaneously transmit a statement of the reasoning for not imposing a fine to the person who filed the claim of violation and their collective bargaining agent or representative, if any.
3. Requires the statement of reasoning described in 2) above, to discuss the manner in which the violation came to the attention of DPH, the investigatory steps taken by DPH to investigate the claim of the violation, the determinations made by DPH regarding the claimed violation, any mitigating evidence relied upon by DPH to justify the decision not to impose a fine, and an analysis of the potential danger to patients posed by the violation.

EXISTING LAW:

1. Licenses and regulates health facilities by DPH, including GACHs, acute psychiatric hospitals, and special hospitals (hospitals). [Health and Safety Code (HSC) §1250, et seq.]
   
2. Requires DPH to periodically inspect hospitals no less that once every three years, and as often as necessary to ensure the quality of care being provided. [HSC §1279]
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, in regulations, required nurse-to-patient ratios by unit or clinical area. Requires, the nurse-to-patient ratio in critical care units to be 1:2 or fewer at all times, and defines “critical care unit” as a nursing unit of a general acute care hospital that provides one of the following services: an intensive care service; a burn center; a coronary care service; an acute respiratory service; or, an intensive care newborn nursery service. [California Code of Regulations Title 22, §70217]
   
5. 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]
   
6. 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)]
   
7. 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)]
8. Requires DPH, notwithstanding the penalty provisions for other violations as described in 5) and 6) above, to assess hospitals a $15,000 penalty for a first violation of nurse-to-patient staffing ratios, and $30,000 for the second and each subsequent violation. However, specifies that a hospital is not subject to an administrative penalty if the hospital can demonstrate to the satisfaction of DPH all of the following:
   1. That any fluctuation in required staffing levels was unpredictable and uncontrollable;
   2. Prompt efforts were made to made to maintain required staffing levels; and,
   3. In making these efforts, the hospital immediately used and subsequently exhausted the hospitals’ on-call list of nurses and the charge nurse. [HSC §1280.3(f)]
      

FISCAL EFFECT: Unknown. This bill has not yet been analyzed by a fiscal committee.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, the nurse staffing ratios in existing law need to be uniformly enforced. More importantly, the nursing workforce and the general public need to understand that they are being enforced. The author states that this bill will ensure that DPH is transparent about its enforcement efforts with regard to nurse staffing ratios. It does so by requiring DPH to notify the complaining nurses or their representative any time it takes action against a hospital for a violation of staffing ratios, and will require DPH to provide a statement of reasons for failing to impose a fine on a hospital in such cases.
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 (ICUs), 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.
      

California registered nurse (RN) to Patient Staffing Ratios

b) Effectiveness of nurse-to-patient ratios. According to a 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 RNs and licensed practical nurses by up to 33% compared to the expected rate without the law.

c) Administrative penalties for hospitals. DPH has the authority to assess administrative penalties for violations of the laws pertaining to the licensing of hospitals. There are two levels of penalties: violations that constitute immediate jeopardy to the health and safety of a patient; and, violations that do not constitute immediate jeopardy. Immediate jeopardy violations are 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.

DPH promulgated 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:

d) Nurse-to-Patient Ratio violations and enforcement. AB 1063 (Gabriel) of 2023 would have required DPH to conduct an annual review of its enforcement of the nurse-to-patient ratio regulations and submit a report to the Legislature on its findings. AB 1063 was vetoed by Governor Newsome, who in his veto message instructed DPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the DPH Center for Health Care Quality's State Enforcement Tracking Dashboard (Dashboard). DPH updated the existing Electronic Licensing Management System (ELMS) on March 4, 2024 to include a category specific to nurse-to-patient ratio violations. ELMS is an internal database that tracks all facility licensure information including applications, licensure history, administration, program flexibility, penalties, etc. As new nurse-to-patient ratio deficiencies are finalized they will begin showing on the Dashboard. DPH states that finalization of any administrative penalties involves an internal management and legal review process. Any nurse-to-patient ratio violation from March 4, 2024 going forward would follow the same process as all other administrative penalties but would be keyed in the system differently for tracking purposes. The Dashboard contains a search tool that provides online access to all state enforcement actions. Users may search the database by enforcement action attributes such as penalty type, facility, or issue date, or with a key word search against the investigation narratives.

In the last three years DPH has received a total of 1,328 nurse-to-patient ratio violation complaints and facility reported incidents (FRIs). DPH may receive multiple complaints for the same violation (e.g., three nurses at the same facility report the same understaffed shift to DPH). Each complaint received represents a single entry in ELMS. However, DPH district level investigators will identify multiple complaints for the same violation and will consolidate their investigation activities as appropriate. Subsequently, the publicly accessible State Enforcement Actions Dashboard will reflect a single deficiency that was substantiated.

Of the 1,328 complaints and FRIs received in the last three years, 1,071 complaints were substantiated with deficiencies and 28 FRIs were substantiated with deficiencies. All 1,099 complaints and FRIs substantiated with deficiencies required a Plan of Correction. DPH imposed a fine for 25 of these violations; five of those were issued in conjunction with a finding of harm to the patient and there were five adverse events that involved a nurse-patient ratio violation.

This bill requires DPH to notify an individual making a complaint regarding ratio violations and their collective bargaining agents of the action to be taken on substantiated violations, and if the action to be taken does not include a fine, to include a statement of the reasoning for not imposing a fine. This bill requires the statement of reasoning to discuss the manner in which the violation came to the attention of DPH, the investigatory steps taken by DPH to investigate the claim of the violation, the determinations made by DPH regarding the claimed violation, any mitigating evidence relied upon by DPH to justify the decision not to impose a fine, and an analysis of the potential danger to patients posed by the violation.

1. SUPPORT. The United Nurses Associations of California/Union of Health Care Professionals (UNAC/UHCP) is the sponsor of this bill and states that when DPH finds a substantiated violation of nurse staffing ratios, it is required to send information to the hospital regarding the action to be taken on that violation. However, the party filing a report of a staffing violation, typically an overworked nurse in the hospital, is not alerted as to any action taken by DPH. UNAC/UHCP notes that this bill will require DPH to provide a statement of reasons for not imposing a fine despite finding a substantiated violation. UNAC/UHCP concludes that this bill brings sunlight to a complaint investigation process that currently creates suspicion and distrust among the nursing staff at hospitals, and that providing the information will help the nursing community better understand the regulator landscape surround the enforcement of nurse staffing ratios.
2. PREVIOUS LEGISLATION.
   1. AB 1063 (Gabriel) of 2023 would have required DPH to conduct an annual review of its enforcement of the nurse-to-patient ratio regulations and submit a report to the Legislature on its findings. AB 1063 was vetoed by Governor Newsom, who stated, in part: “I agree it is important to ensure nurse-to-patient staffing ratios are enforced properly for patient safety and maintaining the nursing workforce. However, much of the information this bill seeks to document is already publicly available. Further, this Administration prioritizes ongoing and open engagement with stakeholders. A biennial, public hearing is unnecessary for the state to receive input and make changes. I am directing DPH to continue actively consulting with nurses and their representative labor groups to identify additional opportunities to increase transparency and communication. Further, I have asked DPH to update their hospital citations tracking system to include a category specific to nurse-to-patient ratio violations, and to publish this on the Center for Health Care Quality's State Enforcement Tracking Dashboard.”
   2. AB 1422 (Gabriel), Chapter 716, Statutes of 2021, requires applications by health facilities for program flexibility to designate a bed in a critical care unit as requiring a lower level of care to be posted on DPH’s website, and requires DPH to solicit public comment on the application for at least 30 days.
   3. SB 637 (Newman) of 2021, as passed by the Senate Health Committee, would have required hospitals to report weekly during a health-related state of emergency, and monthly at all other times, information on whether the hospital is experiencing a staffing shortage of nurses, or has experienced any layoffs, furloughs, or repeated shift cancellations of nurses. SB 637 would have required hospitals to report weekly during a health-related state of emergency, and monthly at all other times, until January 1, 2025, information regarding COVID-19-positive staff, including number of staff and facility personnel who have tested positive, or are suspected positive, and total number of deaths of staff who are positive or suspected positive for COVID-19. Additionally, SB 637 would have required a licensed health facility to post any approval granted by DPH for program flexibility immediately adjacent to the health facility’s license. These provisions were amended out of SB 637.
   4. SB 227 (Leyva), Chapter 843, Statutes of 2019, requires periodic inspections of hospitals by 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 each subsequent violation.
3. SUGGESTED AMENDMENT. As currently drafted this bill requires DPH to provide an analysis of the potential danger to patients posed by a violation of the nurse-to-patient ratios, however, it is unclear what metric DPH would use to assess “potential danger.” The Committee may wish to strike that provision from this bill.
   
   
   

REGISTERED SUPPORT / OPPOSITION:

Support

United Nurses Associations of California/Union of Health Care Professionals (sponsor)
American Federation of State, County, and Municipal Employees (AFSCME, AFL-CIO)
California Labor Federation, AFL-CIO

Opposition

None on file

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