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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 489
October 12, 2023 - Introduced by Representatives HONG, RATCLIFF, SHELTON,
CABRERA, JOERS, J. ANDERSON, SINICKI, SUBECK, STUBBS, PALMERI, CLANCY, C.
ANDERSON and ORTIZ-VELEZ, cosponsored by Senators LARSON, CARPENTER,
HESSELBEIN and L. JOHNSON. Referred to Committee on Health, Aging and
Long-Term Care.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 50.373,
103.035, 106.54 (10) (c) and 146.998 of the statutes; relating to: minimum
nurse staffing ratios in hospitals, registered nurses' right to refuse a work
assignment, prohibiting mandatory overtime for registered nurses, and
providing a penalty.
Analysis by the Legislative Reference Bureau
This bill requires hospitals to develop and adhere to a plan for staffing
registered nurses. Under the bill, the nurse staffing plan must meet certain
standards, including being created and approved by a nurse staffing committee, the
majority of which must be registered nurses in nonsupervisory positions; reviewed
annually by the hospital; provided to the Department of Health Services annually,
by a deadline set by DHS; and posted in every unit of the hospital and on the DHS
website. The bill establishes minimum nurse-to-patient ratios that the hospital
must maintain for each unit in the hospital. Under the bill, hospitals must keep for
at least three years records of its nurse staffing ratios and actual staffing numbers.
Under the bill, a hospital that fails to provide DHS with its nurse staffing plan
by the deadline set by DHS is subject to a civil penalty of $25,000. In addition, a
hospital that fails to form a nurse staffing committee, annually review its nurse
staffing plan, annually submit its nurse staffing plan to DHS, or adhere to required
nurse-to-patient staffing ratios must submit a corrective action plan to DHS. Under
the bill, a hospital may be subject to a civil penalty of $5,000 for each day the hospital
fails to submit or comply with a corrective action plan.
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In addition, the bill provides that registered nurses have the right to refuse a
work assignment if the nurse, in good faith and in the nurse's professional judgment,
finds that the nurse is unable to fulfill the assignment without compromising patient
safety or the nurse's license. The bill creates a cause of action for a nurse against a
hospital that disciplines, discharges, retaliates, discriminates, takes adverse action,
or files a complaint with a disciplinary agency against a nurse that refuses to
complete an assignment under those circumstances.
Under current law, subject to certain exceptions, an employer must pay an
employee who receives an hourly wage one and one-half times the employee's
regular rate of pay for all hours worked in excess of 40 hours per week, but current
law, with exceptions under child labor laws, does not prohibit an employer from
requiring an employee to work in excess of 40 hours per week.
This bill prohibits a hospital from requiring a registered nurse to work
overtime. Under the bill, overtime is work in excess of any of the following: 1) a
regularly scheduled predetermined shift immediately following that shift; 2) 12
hours in a 24-hour period; or 3) 40 hours in a scheduled workweek.
The prohibition on mandatory overtime under the bill does not apply in cases
in which the registered nurse is involved in an ongoing surgical procedure, the
registered nurse's presence is essential to the health and safety of a patient, the
nurse is working in a critical care unit, or a public health emergency has been
declared by the president of the United States or the governor, or during periods of
adverse weather, catastrophe, or widespread illness within the hospital.
A registered nurse who is discharged or discriminated against for refusing to
work overtime or for opposing a practice prohibited under the bill, for filing a
complaint or attempting to enforce a right provided under the bill, or for testifying
or assisting in any action or proceeding to enforce such a right may file a complaint
with the Department of Workforce Development, and DWD must process the
complaint in the same manner that employment discrimination complaints are
processed under current law.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 50.373 of the statutes is created to read:
50.373 Hospital nurse staffing requirements. (1) DEFINITIONS. In this
section:
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(a) “Direct patient care” means any direct patient contact or treatment,
including consultation, diagnostic tests and procedures, therapeutic procedures,
pathological analyses and reports, and any other direct medical or health services.
(b) “Nurse staffing plan” means a plan developed and provided to the
department under sub. (2) (a).
(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
(2) SAFE NURSE STAFFING STANDARDS; NURSE STAFFING PLAN. (a) A hospital shall
provide to the department, by a date determined by the department, a nurse staffing
plan for the upcoming year.
(b) A hospital shall, in its nurse staffing plan, provide for a collaborative
practice in the hospital that enhances patient care and the level of services provided
by nurses and other members of the hospital's patient care team.
(c) A hospital shall include all of the following in its nurse staffing plan:
1. A written certification that the nurse staffing plan is sufficient to provide
adequate and appropriate delivery of health care services to patients during the year.
2. The hospital's employment practices concerning the use of temporary and
traveling nurses.
3. The hospital's process for internal review of the nurse staffing plan.
4. The hospital's mechanism for obtaining input from staff that provide direct
patient care, including registered nurses and other members of the hospital's patient
care team, in the development of the nurse staffing plan.
5. The minimum registered nurse skill mix for each patient care unit in the
hospital, including inpatient, critical care, and emergency department staffing.
6. The method used by the hospital to determine and adjust direct patient care
nurse staffing levels.
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7. The supporting personnel assisting on each patient care unit of the hospital.
8. The number of registered nurses providing direct patient care and the ratio
of registered nurses to patients in each care unit of the hospital.
(d) A hospital shall provide in its nurse staffing plan that, at all times during
each shift within a hospital unit, a registered nurse providing direct patient care is
assigned to not more than the following number of patients in that hospital unit:
1. Four patients in an emergency unit.
2. Two patients in an intensive care emergency unit.
3. Two trauma patients in a trauma emergency unit.
4. Two patients in an intensive care unit.
5. Three patients in a progressive care unit.
6. Four patients in a telemetry unit.
7. Five patients in a medical-surgical unit.
8. Four patients in a pediatric unit.
9. One patient in an operating room unit.
10. Two patients in a postanesthesia care unit.
11. Five patients in an oncology unit.
12. Five patients in an orthopedic unit.
13. Six patients in a psychiatry unit.
14. Four patients in a labor obstetrics unit.
15. Four patients in a postpartum obstetrics unit.
16. Four patients in a nursery obstetrics unit.
17. Two patients in a neonatal intensive care unit.
(e) A hospital's nurse staffing plan shall be approved by a majority vote of the
members of the hospital's nurse staffing committee under sub. (3).
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(f) A hospital, in collaboration with its nurse staffing committee, shall
implement to the best of its ability the nurse staffing plan.
(g) If staffing falls below the levels proposed in the nurse staffing plan for the
previous reporting period, a hospital shall include, in its nurse staffing plan for the
subsequent reporting period, a description of any differences between the staffing
levels described in the previous staffing plan and the actual staffing levels for each
patient care unit and any actions the hospital intends to take to address the
differences or adjust staffing levels in future staffing plans.
(h) A hospital shall post its nurse staffing plan on each unit of the hospital in
a location that is visible, conspicuous, and accessible to staff, patients, and the public.
(i) The department shall post each hospital's nurse staffing plan on the
department's website.
(3) NURSE STAFFING COMMITTEE. (a) A hospital shall maintain a nurse staffing
committee to assist in the preparation of its nurse staffing plan. The majority of the
nurse staffing committee members shall be nonsupervisory registered nurses who
are employed by the hospital and whose primary responsibility is to provide direct
patient care.
(b) In a hospital in which registered nurses providing direct patient care are
included in a collective bargaining unit established under ch. 111, the representative
of the collective bargaining unit shall select the registered nurse members of the
nurse staffing committee, subject to the requirements under par. (a).
(4) NURSE STAFFING RECORDS. (a) A hospital shall maintain accurate records of
the actual ratios of registered nurses providing direct patient care to patients in each
unit of the hospital during each shift for at least 3 years. The records must include
the number of patients in each unit during each shift and the number of registered
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nurses assigned to provide direct patient care to each patient in each unit during
each shift.
(b) A hospital shall make the records under par. (a) available to the department
and, upon request, to hospital staff, to a collective bargaining representative of
hospital staff, to patients, and to the public.
(5) COMPLAINTS. A hospital employee, patient, or member of the public may file
a complaint with the department to report any suspected violation of subs. (2) to (4).
(6) HOSPITAL FAILURE TO COMPLY WITH NURSE STAFFING PLAN AND REPORTING
REQUIREMENTS; CORRECTIVE ACTION; PENALTIES. (a) Nurse staffing plan deadline;
penalty. The department shall review each nurse staffing plan provided by a hospital
under sub. (2) (a) to ensure it is received by the date determined by the department
under sub. (2) (a). A hospital that fails to submit a nurse staffing plan by the date
determined by the department under sub. (2) (a) shall forfeit $25,000.
(b) Corrective plan of action; penalty. 1. The department shall investigate a
complaint received under sub. (5) that is accompanied with documented evidence of
a hospital's failure to establish a nurse staffing committee, conduct an annual review
of a nurse staffing plan, submit a nurse staffing plan on an annual basis, or meet the
nurse staffing levels provided under sub. (2) (d) in violation of sub. (2), (3), or (4).
2. If, after an investigation, the department determines a violation has
occurred, the department shall present its findings to the hospital and require the
hospital to submit a corrective plan of action within 45 days from the time the
department presented its findings to the hospital.
3. If a hospital fails to submit or follow a corrective plan of action, the hospital
may be required to forfeit $5,000 for each day that the hospital fails to submit or
follow the corrective plan of action. The forfeitures under this subdivision shall
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accrue until the hospital submits and follows for 90 days a corrective plan of action
that has been approved by the department. If the hospital follows the corrective plan
of action for 90 days, the department may reduce the forfeiture amount accrued
under this subdivision.
(c) Posting violations. The department shall post on its website a report of
violations of subs. (2) to (4) and maintain for public inspection records of any civil
penalties and administrative actions imposed on hospitals under this subsection.
SECTION 2. 103.035 of the statutes is created to read:
103.035 Mandatory overtime for registered nurses in hospitals
prohibited; exceptions. (1) DEFINITIONS. In this section:
(a) “Hospital” has the meaning given in s. 50.33 (2).
(b) “Overtime” means any of the following:
1. Time worked in excess of a regularly scheduled daily work shift that has been
determined and agreed to before the performance of the work, immediately following
the regularly scheduled daily work shift.
2. Time worked in excess of 12 hours in a 24-hour period.
3. Time worked in excess of 40 hours in a previously determined workweek.
(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
(2) MANDATORY OVERTIME PROHIBITED. (a) Except as provided in par. (b), no
hospital may require a registered nurse to work overtime.
(b) A hospital may require a registered nurse to work overtime only in one of
the following instances:
1. The hospital has determined that the safety of a patient requires that a
registered nurse work overtime and the hospital has found that no reasonable
alternative exists.
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2. The registered nurse is working in an ongoing surgical procedure at the time
the hospital requires the nurse to work overtime.
3. The registered nurse is working in a critical care unit and is required to work
overtime until the nurse is relieved by another scheduled registered nurse.
4. During any time that the president of the United States declares a public
health emergency under 50 USC 1621 that affects the region of this state in which
the hospital is located.
5. During any time that the governor declares a public health emergency under
s. 323.10 that affects the region of this state in which the hospital is located.
6. During any time of adverse weather conditions, catastrophe, or widespread
illness within the hospital.
(3) VOLUNTARY COVERAGE. Before requiring a registered nurse to work overtime
under sub. (2) (b), the hospital shall make a good faith effort to have those work hours
covered on a voluntary basis.
(4) RIGHT TO REFUSE MANDATORY OVERTIME. A registered nurse may refuse to
work overtime if the nurse believes in good faith that the hospital has not made a
good faith effort to fill the work hours covered by the overtime mandate. A hospital
may not discharge, retaliate, or discriminate in promotion, in compensation, or in the
terms, conditions, or privileges of employment against the registered nurse for
refusing to work the overtime.
(5) ENFORCEMENT. A registered nurse who is discharged, retaliated, or
discriminated against in violation of sub. (4) may file a complaint with the
department, and the department shall process the complaint in the same manner
that employment discrimination complaints are processed under s. 111.39. If the
department finds that a hospital has violated sub. (4), the department may order the
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hospital to take such action under s. 111.39 as will effectuate the purpose of this
section. Section 111.322 (2m) applies to discharge or other discriminatory acts
arising in connection with any proceeding under this subsection.
SECTION 3. 106.54 (10) (c) of the statutes is created to read:
106.54 (10) (c) The division shall receive complaints under s. 103.035 (5) and
shall process the complaints in the same manner as employment discrimination
complaints are processed under s. 111.39.
SECTION 4. 111.322 (2m) (a) of the statutes is amended to read:
111.322 (2m) (a) The individual files a complaint or attempts to enforce any
right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998, or 995.55, or ss. 101.58
to 101.599 or 103.64 to 103.82.
SECTION 5. 111.322 (2m) (b) of the statutes is amended to read:
111.322 (2m) (b) The individual testifies or assists in any action or proceeding
held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13,
103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998,
or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.
SECTION 6. 146.998 of the statutes is created to read:
146.998 Nurse rights regarding safe nursing standards; cause of
action. (1) DEFINITIONS. In this section:
(a) “Hospital” has the meaning given in s. 50.33 (2).
(b) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
(2) RIGHT TO REFUSE. A registered nurse may object to or refuse to participate
in an activity, policy, practice, assignment, or task if, in good faith and in the
registered nurse's professional judgment, the registered nurse is not prepared by
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education, training, or experience to fulfill the activity, policy, practice, assignment,
or task without compromising the safety of a patient or jeopardizing the registered
nurse's license. A registered nurse's professional judgment under this subsection
shall be based upon the registered nurse's application of knowledge, expertise, and
experience in conducting a comprehensive nursing assessment of a patient and
making independent decisions about patient care in accordance with state law and
administrative rules, including the need for additional staff.
(3) DISCIPLINARY ACTION PROHIBITED. A hospital may not do any of the following
in response to a registered nurse's refusal to participate in an activity, policy,
practice, assignment, or task under this section:
(a) Discharge, retaliate, or discriminate against, or otherwise subject the
registered nurse to an adverse action with respect to any aspect of the registered
nurse's employment, including actions related to promotion, compensation, or terms,
conditions, or privileges of employment.
(b) File a complaint or report against a registered nurse with a state
professional disciplinary entity.
(4) CAUSE OF ACTION. A registered nurse or the collective bargaining
representative or legal representative of a nurse who has been discharged,
retaliated, or discriminated against, subjected to an adverse action, or the subject of
a complaint or report filed with a state professional disciplinary entity in violation
of sub. (3) may bring a cause of action against the hospital that violated sub. (3). A
registered nurse who prevails in a cause of action under this subsection is entitled
to at least one of the following:
(a) Reinstatement.
(b) Reimbursement of lost wages, compensation, and benefits.
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(c) Reasonable attorney fees, notwithstanding s. 814.04 (1).
(d) Court costs.
(e) Any other reasonable damages.
SECTION 7.0Initial applicability.
(1) COLLECTIVE BARGAINING AGREEMENTS. This act first applies to a registered
nurse, as defined in s. 146.40 (1) (f), who is affected by a collective bargaining
agreement that contains provisions inconsistent with this act on the day on which
the collective bargaining agreement expires or is extended, modified, or renewed,
whichever occurs first.
SECTION 8.0Effective dates. This act takes effect on the day after publication,
except as follows:
(1) NURSE STAFFING RECORDS. The treatment of s. 50.373 (4) takes effect on the
first day of the 4th month beginning after publication.
(END)
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