CSHB 50(HSS): "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(HSS) 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 4. 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 adolescents and children; 04 (ii) at a residential psychiatric treatment center under 05 AS 18.07.111 or AS 47.12.990; or 06 (iii) at a secure residential psychiatric treatment center 07 under AS 47.32.900; 08 (B) voluntarily agrees to work a 16-hour shift for the period 09 between 5:00 p.m. on a Friday and 8:00 a.m. on the Monday that immediately 10 follows and receives pay and benefits for that work that are equal to or greater 11 than the pay and benefits the nurse would receive for working 20 regular hours 12 in the same position; and 13 (C) during the period described in (B) of this paragraph does 14 not work a 16-hour shift consecutive with another shift of eight hours or more 15 without an intervening break of at least eight hours; 16 (8) the first two hours on overtime status when the health care facility 17 is obtaining another nurse to work in place of the nurse in overtime status, so long as 18 the nurse in overtime status is not on duty for more than 14 consecutive hours. 19 Sec. 18.20.410. Temporary nurse staffing emergency. (a) If, after making a 20 substantial and reasonable effort to increase the number of available nurses on staff 21 and failing in that effort, a health care facility in a rural community determines it is not 22 able to meet the overtime limitations in AS 18.20.400 without putting the safety of its 23 patients at risk of serious harm, the health care facility may declare a temporary nurse 24 staffing emergency. A declaration of a temporary nurse staffing emergency under this 25 section 26 (1) must be made in a writing, signed by the administrator of the health 27 care facility or the administrator's designee, that describes the facility's reasonable 28 effort to avoid the temporary nurse staffing emergency; and 29 (2) may not exceed 30 days. 30 (b) Immediately after declaring a temporary nurse staffing emergency under 31 (a) of this section, a health care facility shall file with the division of labor standards
01 and safety, Department of Labor and Workforce Development, a report that includes a 02 copy of the signed writing required under (a) of this section. A report under this 03 subsection is a public document. 04 (c) In addition to the requirements of (a) and (b) of this section, a health care 05 facility shall notify the legislature immediately by delivery of a written report to the 06 Alaska Legislative Council each time the facility declares a temporary nurse staffing 07 emergency under AS 18.20.400(c) that exceeds two occurrences in a six-month period 08 that begins on January 1 or July 1 of the year in which the declaration occurs, or three 09 occurrences in the one-year period that begins on January 1 of that year. A report 10 under this subsection must include a copy of each report that is required of the health 11 care facility under (b) of this section for the one-year period that begins on January 1 12 of the year the excessive declaration under this subsection occurs. 13 Sec. 18.20.420. Health care facility complaint process for overtime work 14 by nurses. A health care facility shall provide for an anonymous process by which a 15 patient or a nurse may make a complaint about staffing levels and patient safety that 16 relate to overtime work by nurses and to limitations on overtime work by nurses under 17 AS 18.20.400. 18 Sec. 18.20.430. Enforcement, offenses, and penalties. (a) The commissioner 19 shall administer AS 18.20.400 - 18.20.499 and adopt regulations for implementing and 20 enforcing AS 18.20.400 - 18.20.499. 21 (b) A complaint alleging a violation of AS 18.20.400 - 18.20.499 must be filed 22 with the commissioner within 30 days after the date of the alleged violation. The 23 commissioner shall provide a copy of the complaint to the health care facility named 24 in the filing within three business days after receiving the complaint. 25 (c) If the commissioner finds that a health care facility has knowingly violated 26 an overtime provision of AS 18.20.400 - 18.20.499, the following civil penalties shall 27 apply: 28 (1) for a first violation of AS 18.20.400 - 18.20.499, the commissioner 29 shall reprimand the health care facility; 30 (2) for a second violation of AS 18.20.400 - 18.20.499 within 12 31 months, the commissioner shall reprimand the health care facility and assess a penalty
01 of $500; 02 (3) for a third violation of AS 18.20.400 - 18.20.499 within 12 months, 03 the commissioner shall reprimand the health care facility and assess a penalty of not 04 less than $2,500 but not more than $5,000; 05 (4) for each violation of AS 18.20.400 - 18.20.499 after a third 06 violation of AS 18.20.400 - 18.20.499 within 12 months, the commissioner shall 07 reprimand the health care facility and assess a penalty of not less than $5,000 but not 08 more than $25,000. 09 (d) As an employer, a health care facility violates an overtime provision of 10 AS 18.20.400 - 18.20.499 "knowingly" when the facility is either aware that its 11 conduct is of a nature prohibited by the overtime provision or aware that the 12 circumstances described in the overtime prohibition exist; however, when knowledge 13 of the existence of a particular fact is required to establish that the violation was 14 knowing, that knowledge exists when the facility is aware of a substantial probability 15 of its existence, unless the facility reasonably believes it does not exist. 16 Sec. 18.20.440. Prohibition of retaliation. A health care facility may not 17 discharge, discipline, threaten, discriminate against, penalize, or file a report with the 18 Board of Nursing against a nurse for exercising rights under AS 18.20.400 - 18.20.499 19 or for the good faith reporting of an alleged violation of AS 18.20.400 - 18.20.499. 20 Sec. 18.20.450. Enforcement of prohibition against retaliation. The 21 commissioner shall investigate every complaint alleging a violation of AS 18.20.440, 22 and, within 90 days after the date of filing of the complaint, provide to the 23 complainant, the Department of Law, and the health care facility named in the 24 complaint a written determination as to whether the health care facility violated 25 AS 18.20.440. If the commissioner finds a violation of AS 18.20.440, the 26 commissioner shall request that the Department of Law represent the department and 27 the complainant and obtain from the health care facility all appropriate relief, 28 including rehiring or reinstatement of the complainant to the complainant's former 29 position with back pay. 30 Sec. 18.20.460. Report requirements. (a) A health care facility shall file with 31 the division of labor standards and safety, Department of Labor and Workforce
01 Development, a semiannual report on a form provided by the department. The report 02 for the six-month period ending June 30 must be filed before the following August 1, 03 and the report for the six-month period ending December 31 must be filed before the 04 following February 1. The report must include, for each nurse employed by the health 05 care facility or under contract with the health care facility, the number of overtime 06 hours worked and the number of hours the nurse was on call. A health care facility that 07 does not employ a nurse who worked overtime hours or who was on call during the 08 reporting period is not required to describe hours worked as overtime and on-call 09 hours for individual nurses but may instead complete the report by stating on the form 10 that there are no reportable hours. 11 (b) A primary care outpatient facility is not subject to the reporting 12 requirements of (a) of this section. 13 Sec. 18.20.470. Provisions not applicable to nurses employed in federal or 14 tribal facilities. The provisions of AS 18.20.400 - 18.20.499 do not apply to a nurse 15 employed in a health care facility that is operated by 16 (1) the federal government; or 17 (2) a tribal organization as defined in 25 U.S.C. 450b. 18 Sec. 18.20.480. Notice to employees. A health care facility shall post and 19 maintain, in places readily accessible to individuals in the service of the health care 20 facility, printed statements that describe employee rights and employer obligations 21 under AS 18.20.400 - 18.20.499 and regulations adopted under AS 18.20.430. The 22 commissioner shall supply the printed statements to a health care facility without cost 23 to the facility. 24 Sec. 18.20.499. Definitions. In AS 18.20.400 - 18.20.499, 25 (1) "commissioner" means the commissioner of labor and workforce 26 development; 27 (2) "health care facility" means a private, municipal, or state hospital; 28 independent diagnostic testing facility; primary care outpatient facility; skilled nursing 29 facility; kidney disease treatment center, including freestanding hemodialysis units; 30 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or 31 Alaska Veterans' Home administered by the Department of Health and Social Services
01 under AS 47.55; correctional facility owned or administered by the state; private, 02 municipal, or state facility employing one or more public health nurses; long-term care 03 facility; psychiatric hospital; residential psychiatric treatment center, as defined in 04 AS 18.07.111 or AS 47.32.900; secure residential psychiatric treatment center under 05 AS 47.32.990; juvenile detention facility; juvenile detention home, juvenile work 06 camp, or treatment facility as defined in AS 47.12.990; 07 (3) "nurse" means an individual licensed to practice registered nursing 08 or practical nursing under AS 08.68 who provides nursing services through direct 09 patient care or clinical services and includes a nurse manager when delivering in- 10 hospital patient care; 11 (4) "on-call" means a status in which a nurse must be ready to report to 12 the health care facility and may be called to work by the health care facility; 13 (5) "overtime" means the hours worked in excess of a predetermined 14 and regularly scheduled shift that is agreed to by a nurse and a health care facility; 15 (6) "rural community" means a village or city that has a population of 16 less than 10,000, as determined by the Department of Labor and Workforce 17 Development, and is in 18 (A) the unorganized borough; or 19 (B) an organized borough that has a population of less than 20 25,000, as determined by the Department of Labor and Workforce 21 Development. 22 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 APPLICABILITY. A health care facility that is required to file reports under 25 AS 18.20.460, enacted in sec. 2 of this Act, shall file its first report before February 1, 2010, 26 for the period July 1, 2009, through December 31, 2009. 27 * Sec. 4. AS 18.20.460, enacted in sec. 2 of this Act, and sec. 3 of this Act take effect 28 July 1, 2009. 29 * Sec. 5. Except as provided in sec. 4 of this Act, this Act takes effect January 1, 2010.