Legislature(2005 - 2006)

04/30/2005 02:15 PM L&C

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                                                               
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                                                               
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-                                                               
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                                                               
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                                                               
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.                                                                            

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