CSHB 50(FIN): "An Act relating to limitations on mandatory overtime for registered nurses and licensed practical nurses in health care facilities; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 50(FIN) 01 "An Act relating to limitations on mandatory overtime for registered nurses and 02 licensed practical nurses in health care facilities; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 LEGISLATIVE FINDINGS AND INTENT. The legislature finds that 07 (1) it is essential that registered nurses and licensed practical nurses providing 08 direct patient care be available to meet the needs of patients; 09 (2) quality patient care is jeopardized by registered nurses and licensed 10 practical nurses who work unnecessarily long hours in health care facilities; 11 (3) registered nurses and licensed practical nurses are leaving their profession 12 because of workplace stresses, long work hours, and depreciation of their essential role in the 13 delivery of quality and direct patient care; 14 (4) it is necessary to safeguard the efficiency, health, and general well-being
01 of registered nurses and licensed practical nurses, and the health and general well-being of the 02 persons receiving care from registered nurses and licensed practical nurses in health care 03 facilities; 04 (5) it is necessary that registered nurses and licensed practical nurses be made 05 aware of their rights, duties, and remedies concerning hours worked and patient safety; and 06 (6) health care facilities should provide adequate and safe nurse staffing 07 without the need for or use of mandatory overtime. 08 * Sec. 2. AS 18.20 is amended by adding new sections to read: 09 Article 5. Overtime Limitations for Nurses. 10 Sec. 18.20.400. Limitations on nursing overtime. (a) Except as provided in 11 (c) of this section, a nurse in a health care facility may not be required or coerced, 12 directly or indirectly, 13 (1) to work beyond a predetermined and regularly scheduled shift that 14 is agreed to by the nurse and the health care facility; or 15 (2) to accept an assignment of overtime if, in the judgment of the 16 nurse, the overtime would jeopardize patient or employee safety. 17 (b) Except as provided by (c) of this section, after working a predetermined 18 and regularly scheduled shift that is agreed to by the nurse and the health care facility 19 as authorized by (a)(1) of this section, a nurse in a health care facility shall be allowed 20 not less than 10 consecutive hours of off-duty time immediately following the end of 21 that work. 22 (c) Subsection (a) of this section does not apply to 23 (1) a nurse who is employed by a health care facility providing 24 services for a school, school district, or other educational institution, when the nurse is 25 on duty for more than 14 consecutive hours during an occasional special event, such as 26 a field trip, that is sponsored by the employer; 27 (2) a nurse voluntarily working overtime on an aircraft in use for 28 medical transport, so long as the shift worked is allowable under regulations adopted 29 by the Board of Nursing based on accreditation standards adopted by the Commission 30 on Accreditation of Medical Transport Systems; 31 (3) a nurse on duty in overtime status
01 (A) who is participating in the performance of a medical 02 procedure or surgery that has begun but has not been completed; 03 (B) because of an unforeseen emergency situation that could 04 jeopardize patient safety; in this subparagraph, "unforeseen emergency 05 situation" means an unusual, unpredictable, or unforeseen situation caused by 06 an act of terrorism, disease outbreak, natural disaster, major disaster as defined 07 in 42 U.S.C. 5122, or disaster emergency under AS 26.23.020 or 26.23.140, 08 but does not include a situation in which a health care facility has reasonable 09 knowledge of increased patient volume or inadequate staffing because of some 10 other cause, if that cause is foreseeable; 11 (C) because the health care facility has a scheduling problem 12 caused by unforeseen weather conditions that prevent a second nurse from 13 arriving at the facility to relieve the nurse on duty; in this subparagraph, 14 "unforeseen weather conditions" means unusual, unpredictable, or unforeseen 15 weather so extreme as to impair travel to the health care facility, but does not 16 include a situation in which the health care facility has knowledge of the 17 weather conditions far enough in advance to act so that a scheduling problem 18 under this subparagraph can reasonably be avoided; or 19 (D) at a health care facility located in a rural community that 20 declares a temporary nurse staffing emergency under AS 18.20.410; 21 (4) a nurse fulfilling on-call time that is agreed on by the nurse and a 22 health care facility before it is scheduled unless fulfilling the on-call time would, in the 23 nurse's judgment, create an unacceptable risk to the physical safety of the nurse, a 24 patient, or an employee of the facility; 25 (5) a nurse voluntarily working overtime so long as the work is 26 consistent with professional standards and safe patient care and does not exceed 14 27 consecutive hours; 28 (6) a nurse voluntarily working beyond 80 hours in a 14-day period so 29 long as the nurse does not work more than 14 consecutive hours without a 10-hour 30 break and the work is consistent with professional standards and safe patient care; 31 (7) a nurse who
01 (A) is employed 02 (i) at a psychiatric treatment hospital that treats only 03 children or at a residential psychiatric treatment center, as defined 04 under AS 18.07.111, that treats only children; in this sub-subparagraph, 05 "children" means persons under 19 years of age who are receiving 06 psychiatric treatment from a hospital or center or who are residing in a 07 center and who were under 18 years of age on the date that the 08 treatment or period of residence commenced; 09 (ii) at a residential psychiatric treatment center as 10 defined under AS 47.32.900; or 11 (iii) at a secure residential psychiatric treatment center 12 as defined under AS 47.12.990; 13 (B) voluntarily agrees to work a 16-hour shift for the period 14 between 5:00 p.m. on a Friday and 8:00 a.m. on the Monday that immediately 15 follows and receives pay and benefits for that work that are equal to or greater 16 than the pay and benefits the nurse would receive for working 20 regular hours 17 in the same position; and 18 (C) during the period described in (B) of this paragraph does 19 not work a 16-hour shift consecutive with another shift of eight hours or more 20 without an intervening break of at least eight hours; 21 (8) the first two hours on overtime status when the health care facility 22 is obtaining another nurse to work in place of the nurse in overtime status, so long as 23 the nurse in overtime status is not on duty for more than 14 consecutive hours. 24 Sec. 18.20.410. Temporary nurse staffing emergency. (a) If, after making a 25 substantial and reasonable effort to increase the number of available nurses on staff 26 and failing in that effort, a health care facility in a rural community determines it is not 27 able to meet the overtime limitations in AS 18.20.400 without putting the safety of its 28 patients at risk of serious harm, the health care facility may declare a temporary nurse 29 staffing emergency. A declaration of a temporary nurse staffing emergency under this 30 section 31 (1) must be made in a writing, signed by the administrator of the health
01 care facility or the administrator's designee, that describes the facility's reasonable 02 effort to avoid the temporary nurse staffing emergency; and 03 (2) may not exceed 30 days. 04 (b) Immediately after declaring a temporary nurse staffing emergency under 05 (a) of this section, a health care facility shall file with the division of labor standards 06 and safety, Department of Labor and Workforce Development, a report that includes a 07 copy of the signed writing required under (a) of this section. A report under this 08 subsection is a public document. 09 (c) In addition to the requirements of (a) and (b) of this section, a health care 10 facility shall notify the legislature immediately by delivery of a written report to the 11 Alaska Legislative Council each time the facility declares a temporary nurse staffing 12 emergency under AS 18.20.400(c) that exceeds two occurrences in a six-month period 13 that begins on January 1 or July 1 of the year in which the declaration occurs, or three 14 occurrences in the one-year period that begins on January 1 of that year. A report 15 under this subsection must include a copy of each report that is required of the health 16 care facility under (b) of this section for the one-year period that begins on January 1 17 of the year the excessive declaration under this subsection occurs. 18 Sec. 18.20.420. Health care facility complaint process for overtime work 19 by nurses. A health care facility shall provide for an anonymous process by which a 20 patient or a nurse may make a complaint about staffing levels and patient safety that 21 relate to overtime work by nurses and to limitations on overtime work by nurses under 22 AS 18.20.400. 23 Sec. 18.20.430. Enforcement, offenses, and penalties. (a) The commissioner 24 shall administer AS 18.20.400 - 18.20.499 and adopt regulations for implementing and 25 enforcing AS 18.20.400 - 18.20.499. 26 (b) A complaint alleging a violation of AS 18.20.400 - 18.20.499 must be filed 27 with the commissioner within 30 days after the date of the alleged violation. The 28 commissioner shall provide a copy of the complaint to the health care facility named 29 in the filing within three business days after receiving the complaint. 30 (c) If the commissioner finds that a health care facility has knowingly violated 31 an overtime provision of AS 18.20.400 - 18.20.499, the following civil penalties shall
01 apply: 02 (1) for a first violation of AS 18.20.400 - 18.20.499, the commissioner 03 shall reprimand the health care facility; 04 (2) for a second violation of AS 18.20.400 - 18.20.499 within 12 05 months, the commissioner shall reprimand the health care facility and assess a penalty 06 of $500; 07 (3) for a third violation of AS 18.20.400 - 18.20.499 within 12 months, 08 the commissioner shall reprimand the health care facility and assess a penalty of not 09 less than $2,500 but not more than $5,000; 10 (4) for each violation of AS 18.20.400 - 18.20.499 after a third 11 violation of AS 18.20.400 - 18.20.499 within 12 months, the commissioner shall 12 reprimand the health care facility and assess a penalty of not less than $5,000 but not 13 more than $25,000. 14 (d) As an employer, a health care facility violates an overtime provision of 15 AS 18.20.400 - 18.20.499 "knowingly" when the facility is either aware that its 16 conduct is of a nature prohibited by the overtime provision or aware that the 17 circumstances described in the overtime prohibition exist; however, when knowledge 18 of the existence of a particular fact is required to establish that the violation was 19 knowing, that knowledge exists when the facility is aware of a substantial probability 20 of its existence, unless the facility reasonably believes it does not exist. 21 Sec. 18.20.440. Prohibition of retaliation. A health care facility may not 22 discharge, discipline, threaten, discriminate against, penalize, or file a report with the 23 Board of Nursing against a nurse for exercising rights under AS 18.20.400 - 18.20.499 24 or for the good faith reporting of an alleged violation of AS 18.20.400 - 18.20.499. 25 Sec. 18.20.450. Report requirements. (a) A health care facility shall file with 26 the division of labor standards and safety, Department of Labor and Workforce 27 Development, a semiannual report on a form provided by the department. The report 28 for the six-month period ending June 30 must be filed before the following August 1, 29 and the report for the six-month period ending December 31 must be filed before the 30 following February 1. The report must include, for each nurse employed by the health 31 care facility or under contract with the health care facility, the number of overtime
01 hours worked and the number of hours the nurse was on call. A health care facility that 02 does not employ a nurse who worked overtime hours or who was on call during the 03 reporting period is not required to describe hours worked as overtime and on-call 04 hours for individual nurses but may instead complete the report by stating on the form 05 that there are no reportable hours. 06 (b) A primary care outpatient facility is not subject to the reporting 07 requirements of (a) of this section. 08 Sec. 18.20.460. Provisions not applicable to nurses employed in federal or 09 tribal facilities. The provisions of AS 18.20.400 - 18.20.499 do not apply to a nurse 10 employed in a health care facility that is operated by 11 (1) the federal government; or 12 (2) a tribal organization as defined in 25 U.S.C. 450b. 13 Sec. 18.20.470. Notice to employees. A health care facility shall post and 14 maintain, in places readily accessible to individuals in the service of the health care 15 facility, printed statements that describe employee rights and employer obligations 16 under AS 18.20.400 - 18.20.499 and regulations adopted under AS 18.20.430. The 17 commissioner shall supply the printed statements to a health care facility without cost 18 to the facility. 19 Sec. 18.20.499. Definitions. In AS 18.20.400 - 18.20.499, 20 (1) "commissioner" means the commissioner of labor and workforce 21 development; 22 (2) "health care facility" means a private, municipal, or state hospital; 23 independent diagnostic testing facility; primary care outpatient facility; skilled nursing 24 facility; kidney disease treatment center, including freestanding hemodialysis units; 25 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or 26 Alaska Veterans' Home administered by the Department of Health and Social Services 27 under AS 47.55; correctional facility owned or administered by the state; private, 28 municipal, or state facility employing one or more public health nurses; long-term care 29 facility; psychiatric hospital; residential psychiatric treatment center, as defined in 30 AS 18.07.111 or AS 47.32.900; secure residential psychiatric treatment center under 31 AS 47.12.990; juvenile detention facility; juvenile detention home, juvenile work
01 camp, or treatment facility as defined in AS 47.12.990; 02 (3) "nurse" means an individual licensed to practice registered nursing 03 or practical nursing under AS 08.68 who provides nursing services through direct 04 patient care or clinical services and includes a nurse manager when delivering in- 05 hospital patient care; 06 (4) "on-call" means a status in which a nurse must be ready to report to 07 the health care facility and may be called to work by the health care facility; 08 (5) "overtime" means the hours worked in excess of a predetermined 09 and regularly scheduled shift that is agreed to by a nurse and a health care facility; 10 (6) "rural community" means a village or city that has a population of 11 less than 10,000, as determined by the Department of Labor and Workforce 12 Development, and is in 13 (A) the unorganized borough; or 14 (B) an organized borough that has a population of less than 15 25,000, as determined by the Department of Labor and Workforce 16 Development. 17 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 18 read: 19 APPLICABILITY. A health care facility that is required to file reports under 20 AS 18.20.450, enacted in sec. 2 of this Act, shall file its first report before February 1, 2011, 21 for the period July 1, 2010, through December 31, 2010. 22 * Sec. 4. AS 18.20.450, enacted in sec. 2 of this Act, and sec. 3 of this Act take effect 23 July 1, 2010. 24 * Sec. 5. Except as provided in sec. 4 of this Act, this Act takes effect January 1, 2011.