Legislature(2005 - 2006)
04/30/2005 02:15 PM L&C
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* first hearing in first committee of referral
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HB 271-LIMIT OVERTIME FOR REGISTERED NURSES CHAIR ANDERSON announced that the first order of business would be HOUSE BILL NO. 271, "An Act relating to limitations on overtime for registered nurses in health care facilities; and providing for an effective date." REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, sponsor, explained that HB 271 prohibits mandatory overtime for nurses because it causes significant problems for both patients and health care workers. "Forcing nurses to work beyond their regularly scheduled shift has been linked to increased error rates in providing patient care; it's also increased injury rates for both patients and health care workers," she stated. For health care workers, the abuse of mandatory overtime has been associated with unhealthy weight gain, increased use of alcohol and tobacco, and lower levels of functional ability. Representative Wilson highlighted that for nurses, errors and mistakes can cause life-threatening situations for both the patient and the nurse. Furthermore, errors and mistakes can lead to lawsuits that could result in the loss of license and increases in malpractice insurance rates. "The evidence is very strong that prolonged work hours and fatigue effect worker performance," she stated. REPRESENTATIVE WILSON informed the committee that the U.S. Department of Health and Human Resources authorized the Institute of Medicine to study nurse work hours and health care errors. The study provided compelling evidence supporting the belief that nurses working long hours have an adverse effect on patient safety. Representative Wilson highlighted that the study estimated that between 44,000-98,000 hospital deaths can be attributed to medical errors each year. She said that mandatory overtime is a serious contributing factor to some of these errors. The study, she related, recommends that all overtime should be curtailed altogether. 2:18:46 PM REPRESENTATIVE WILSON informed the committee that when nurses had to work shifts longer than 12 hours, the risk of making an error was three times higher. Furthermore, working overtime increased the odds of making at least one error, regardless of the length of the originally scheduled shift. Moreover, about 12 percent of the absences reported by a random sample of Canadian nurses was directly correlated to overtime. REPRESENTATIVE WILSON pointed out that mandatory overtime is one of the major factors causing nurses to leave the profession. However, in the face of a severe nursing shortage, nurses need to be kept at the bedside. She informed the committee that surveys have shown that the exodus of various health care providers and [other support staff] is directly attributable to difficult working conditions, including inadequate staffing, mandatory overtime, and insufficient compensation. 2:19:51 PM REPRESENTATIVE WILSON specified that HB 271 won't prohibit nurses from working overtime, although it will discourage an employer from assigning mandatory overtime. Furthermore, the legislation will prohibit an employer from threatening or retaliating against a nurse who refuses to work overtime. She noted that 10 states have already enacted legislation prohibiting mandatory overtime and another 20 are in the process of doing so. Representative Wilson concluded by emphasizing that this is not an overtime issue but rather a safety issue for both patients and nurses. CHAIR ANDERSON turned attention to the fiscal note for a Wage & Hour Investigator I, which he assumed would cover the state's nurses. 2:21:18 PM REPRESENTATIVE LYNN inquired as to what happens in an emergency situation in which a nurse becomes sick, but no one will volunteer. He asked if mandatory overtime could be required in that situation. REPRESENTATIVE WILSON pointed out that there are five exemptions, which include the aforementioned situation. The exemptions are listed on page 2, lines 14-20. 2:23:04 PM REPRESENTATIVE ROKEBERG turned attention to the exemption allowing a nurse to voluntarily work overtime. He asked if that could be problematic in terms of what's voluntary and what's not. REPRESENTATIVE WILSON related her belief that the nurse would know whether she can handle additional hours and how many. In further response to Representative Rokeberg, Representative Wilson said that parts of HB 271 are based on statutes from other states. 2:24:47 PM REBECCA BOLLING, RN, President, Alaska Nurses Association, informed the committee that the Alaska Nurses Association represents over 6,000 registered nurses in the state. She related her support for HB 271. Ms. Bolling turned attention to the national nursing shortage, which is expected to be of greater proportions than those of the past. She reviewed the many reasons for the nursing shorting, included the growing elderly population, fewer individuals choosing a nursing career, and the growing trend of nurses planning to and leaving the profession. Many surveys have documented that as many as 20 percent of nurses are planning to leave the profession within the next five years. She echoed Representative Wilson's comments regarding the reports from surveys that nurses are leaving the profession primarily due to working conditions, siting mandatory overtime as one of the top reasons for dissatisfaction. Furthermore, mandatory overtime has been associated with poor health of the nurse and most certainly causes family, marital, and childcare problems. Moreover, mandatory overtime contributes to poor quality of care and mistakes that can and do have disastrous results. MS. BOLLING said that the answer to the nursing shortage isn't mandatory overtime, rather it will worsen the shortage by driving away more nurses. She noted that other states have tackled this issue. She also noted that nurses do suffer retaliation from employers when they refuse overtime hours, and therefore legislation to ban mandatory overtime for registered nurses (RNs) is important. Ms. Bolling, in conclusion, applauded the effort to protect the profession of nursing in Alaska and the safety of the state's patients by moving forward on HB 271. 2:29:09 PM REPRESENTATIVE GUTTENBERG inquired as to how this legislation would apply to nurses performing administrative work as opposed to direct care. MS. BOLLING related her belief that it wouldn't apply to those nurses doing administrative work primarily because those are contracted services that are salary positions. Staff nurses are paid on an hourly wage and are impacted by mandatory overtime. 2:30:05 PM REPRESENTATIVE LEDOUX drew attention to the exemption for a critical access hospital, and inquired as to what it is. REPRESENTATIVE WILSON opined that there are only five hospitals in the state that are critical access hospitals, including the hospitals in Wrangell, Petersburg, and Cordova. Those hospitals are located in areas in which the population has decreased, but the federal government has provided help in order to continue to provide services because without the hospital there would be no access to health care. There was an indication that the definition of "critical access hospital" is specified in the U.S. code. 2:32:27 PM REPRESENTATIVE LEDOUX expressed concern for hospitals with a limited number of employees because she surmised that such a hospital would be most likely to force unwanted overtime. Therefore, the exemption would seem to undo the good intention of the legislation. REPRESENTATIVE WILSON noted that in talking with nurses and the Alaska Nurses Association, she gathered that the only facilities making people work overtime are the Alaska Psychiatric Institute (API), some of the Pioneers' Homes, and within [the Department of] Corrections. [Due to a technical difficulty, the committee took a brief at- ease.] 2:34:51 PM DAVE WILLIAMS, Project Coordinator, Department of Health and Social Services (DHSS), informed the committee that he is representing the pioneers' and veterans' homes. Mr. Williams stressed the importance of RNs, without which the pioneers' and veterans' homes cannot work. He noted that the department has found difficulty in finding RNs to even interview for all of the shifts and locations, there are six different homes to staff. Therefore, when a facility is short, it asks for volunteers first. He related his impression that generally the requests for volunteers satisfy the need, although that's not always the case. MR. WILLIAMS surmised that under HB 271, more attention would have to be paid to be sure that [the first request was for voluntary overtime]. Therefore, he surmised that whether the overtime was mandatory or voluntary would need to be recorded in some fashion. Mr. Williams said that he should be able to provide the committee with a fiscal note next week after he has time to check with each administrator regarding the amount of voluntary and mandatory overtime. He commented that if there is a need to request mandatory overtime, but [the administrator] is not allowed to do so [under HB 271] then an alternative would have to be sought. He mentioned the possibility of contract nursing, which is already being used. The aforementioned would probably be reviewed for the fiscal note. However, he noted that contract nurses aren't easily found, and in fact locally contract nurses are now being hired from Canada. Mr. Williams concluded by stating that the nationwide shortage of RNs is quite a challenge. 2:38:34 PM REPRESENTATIVE GUTTENBERG asked if the RN shortage is mainly [attributable] to salaries and benefits or are there merely not enough trained people in Alaska. MR. WILLIAMS said that he couldn't speak to the cause of the shortage, although he agreed with earlier statements regarding people not choosing [nursing] as a line of work. Although higher wages could attract more people, it's such a shortage that there will still be difficulty finding RNs. In further response to Representative Guttenberg, Mr. Williams said that he didn't know the compensation differential between the state and the private sector. 2:39:18 PM REPRESENTATIVE CRAWFORD inquired as to whether Mr. Williams had data regarding the average amount of overtime hours an RN would work in [the pioneers' and veterans' homes]. MR. WILLIAMS replied no, although he offered to provide that to the committee as it will be utilized for the fiscal note. 2:40:40 PM KATHLEEN GETTYS, RN, President, Providence Registered Nurses Bargaining Unit; Delegate, American Nurses Association, echoed earlier testimony regarding the concern the Alaska Nurses Association and the American Nurses Association has regarding the impact of mandatory overtime. Both organizations, she related, believe that the elimination of mandatory overtime is a critical success factor in efforts to improve the quality of health care and conditions for nurses. Therefore, both organizations oppose the use of mandatory overtime as a staffing tool. Overtime, whether mandatory or voluntary, is the most common method used to cover staffing insufficiencies. In fact, some employers have described mandatory overtime as a staffing model. She noted the various states in which mandatory overtime was the central issue in RN strikes. "Strictly limiting mandatory overtime for nurses is a critical step in improving the quality of health care and reducing medical errors," she opined. She reiterated the findings of the study Representative Wilson discussed earlier. "Unlike many industries where public safety is a concern, health care is exempt from regulations which limit the use of overtime as a staffing tool" she pointed out. She questioned why one would want a nurse to provide care for someone when it has been clearly illustrated that long working hours increase the likelihood of medical errors. MS. GETTYS stated that API is placed at a disadvantage in recruiting nurses due to working conditions and below-average salaries. However, API can't turn away patients and can't deny hospitalization. She noted that API has lost numerous nurses. The combination of mandatory overtime and working short has left nurses with no other option than to seek other employment opportunities. Therefore, Ms. Gettys concluded by urging the legislature to prohibit mandatory overtime, which she characterized as unethical, in Alaska. 2:46:17 PM REPRESENTATIVE ROKEBERG inquired as to how the RNs labor agreement deals with mandatory overtime at Providence Hospital. MS. GETTYS specified that RNs [at Providence Hospital] are covered by a collective bargaining agreement in which mandatory overtime isn't used. However, there are situations in which a case in the operating room runs long. Providence Hospital has a large pool of nurses and it takes great effort to find someone to replace that nurse in the aforementioned situation. 2:47:24 PM DIANE O'CONNEL, Alaska Nurses Association, informed the committee that many organizations have worked on developing the language in HB 271, including the Laborers Local 341 representing the nurses at Anchorage's Regional Hospital, the Teamsters representing nurses located in Kodiak and Homer, and the Alaska State Employee's Association for API and other nurses employed by the state. Ms. O'Connell urged the committee's support for HB 271. 2:48:44 PM LONNIE HOSLEY (PH), RN, informed the committee that she has been a nurse for over 20 years and currently works at API. She said that she fully agrees with the statements of her peers. She expressed hope that the committee would [forward] HB 271, which she said she supports. 2:49:18 PM CAROL WIDMAN, RN, informed the committee that she, too, is an employee of API and has been forced to work overtime. She urged the committee to pass HB 271. 2:49:58 PM REPRESENTATIVE GUTTENBERG referred to page 3, line 10, and inquired as to what happens if a complaint alleging a violation isn't filed with the commissioner within three business days. GREY MITCHELL, Director, Division of Labor Standards & Safety, Department of Labor & Workforce Development (DLWD), assumed that it would be the department's failure and the case wouldn't be pursuable at that point. REPRESENTATIVE ROKEBERG asked if testimony earlier indicating that health care workers are exempt from the Alaska Wage & Hour Act is correct. MR. MITCHELL answered that there is an exemption for most health care employees such that those employees who provide medical services to patients and are employed by an over night hospital are exempt from the Alaska Wage & Hour Act. Administrative employees aren't included nor are clinics and physician's offices. CHAIR ANDERSON, upon determining no one else wished to testify, closed public testimony. 2:52:06 PM REPRESENTATIVE GUTTENBERG urged Representative Wilson to review his earlier question [regarding the failure of the commissioner to file a complaint within the specified time]. REPRESENTATIVE KOTT noted that he too is concerned with the provision addressing the failure to file a complaint. If it's a failure from the department, then he wasn't sure that it should restrict the complaint from proceeding. Representative Kott then turned to the fine imposed on state facilities that are found not to be in compliance. He surmised that the fine remitted by the state facility would be from the general fund dollars it receives and thus the fine would be general fund dollars that would be deposited back in the general fund. However, that's not clear in the legislation. Therefore, he requested that the sponsor review that issue. 2:54:00 PM REPRESENTATIVE LEDOUX moved to report HB 271 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, it was so ordered.