Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB489 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 489
5	5	October 12, 2023 - Introduced by Representatives HONG, RATCLIFF, SHELTON,
6	6	CABRERA, JOERS, J. ANDERSON, SINICKI, SUBECK, STUBBS, PALMERI, CLANCY, C.
7	7	ANDERSON and ORTIZ-VELEZ, cosponsored by Senators LARSON, CARPENTER,
8	8	HESSELBEIN and L. JOHNSON. Referred to Committee on Health, Aging and
9	9	Long-Term Care.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 50.373,
12	12	103.035, 106.54 (10) (c) and 146.998 of the statutes; relating to: minimum
13	13	nurse staffing ratios in hospitals, registered nurses' right to refuse a work
14	14	assignment, prohibiting mandatory overtime for registered nurses, and
15	15	providing a penalty.
16	16	Analysis by the Legislative Reference Bureau
17	17	This bill requires hospitals to develop and adhere to a plan for staffing
18	18	registered nurses. Under the bill, the nurse staffing plan must meet certain
19	19	standards, including being created and approved by a nurse staffing committee, the
20	20	majority of which must be registered nurses in nonsupervisory positions; reviewed
21	21	annually by the hospital; provided to the Department of Health Services annually,
22	22	by a deadline set by DHS; and posted in every unit of the hospital and on the DHS
23	23	website. The bill establishes minimum nurse-to-patient ratios that the hospital
24	24	must maintain for each unit in the hospital. Under the bill, hospitals must keep for
25	25	at least three years records of its nurse staffing ratios and actual staffing numbers.
26	26	Under the bill, a hospital that fails to provide DHS with its nurse staffing plan
27	27	by the deadline set by DHS is subject to a civil penalty of $25,000. In addition, a
28	28	hospital that fails to form a nurse staffing committee, annually review its nurse
29	29	staffing plan, annually submit its nurse staffing plan to DHS, or adhere to required
30	30	nurse-to-patient staffing ratios must submit a corrective action plan to DHS. Under
31	31	the bill, a hospital may be subject to a civil penalty of $5,000 for each day the hospital
32	32	fails to submit or comply with a corrective action plan.
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39	39	ASSEMBLY BILL 489
40	40	In addition, the bill provides that registered nurses have the right to refuse a
41	41	work assignment if the nurse, in good faith and in the nurse's professional judgment,
42	42	finds that the nurse is unable to fulfill the assignment without compromising patient
43	43	safety or the nurse's license. The bill creates a cause of action for a nurse against a
44	44	hospital that disciplines, discharges, retaliates, discriminates, takes adverse action,
45	45	or files a complaint with a disciplinary agency against a nurse that refuses to
46	46	complete an assignment under those circumstances.
47	47	Under current law, subject to certain exceptions, an employer must pay an
48	48	employee who receives an hourly wage one and one-half times the employee's
49	49	regular rate of pay for all hours worked in excess of 40 hours per week, but current
50	50	law, with exceptions under child labor laws, does not prohibit an employer from
51	51	requiring an employee to work in excess of 40 hours per week.
52	52	This bill prohibits a hospital from requiring a registered nurse to work
53	53	overtime. Under the bill, overtime is work in excess of any of the following: 1) a
54	54	regularly scheduled predetermined shift immediately following that shift; 2) 12
55	55	hours in a 24-hour period; or 3) 40 hours in a scheduled workweek.
56	56	The prohibition on mandatory overtime under the bill does not apply in cases
57	57	in which the registered nurse is involved in an ongoing surgical procedure, the
58	58	registered nurse's presence is essential to the health and safety of a patient, the
59	59	nurse is working in a critical care unit, or a public health emergency has been
60	60	declared by the president of the United States or the governor, or during periods of
61	61	adverse weather, catastrophe, or widespread illness within the hospital.
62	62	A registered nurse who is discharged or discriminated against for refusing to
63	63	work overtime or for opposing a practice prohibited under the bill, for filing a
64	64	complaint or attempting to enforce a right provided under the bill, or for testifying
65	65	or assisting in any action or proceeding to enforce such a right may file a complaint
66	66	with the Department of Workforce Development, and DWD must process the
67	67	complaint in the same manner that employment discrimination complaints are
68	68	processed under current law.
69	69	For further information see the state fiscal estimate, which will be printed as
70	70	an appendix to this bill.
71	71	The people of the state of Wisconsin, represented in senate and assembly, do
72	72	enact as follows:
73	73	SECTION 1. 50.373 of the statutes is created to read:
74	74	50.373 Hospital nurse staffing requirements. (1) DEFINITIONS. In this
75	75	section:
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83	83	(a) “Direct patient care” means any direct patient contact or treatment,
84	84	including consultation, diagnostic tests and procedures, therapeutic procedures,
85	85	pathological analyses and reports, and any other direct medical or health services.
86	86	(b) “Nurse staffing plan” means a plan developed and provided to the
87	87	department under sub. (2) (a).
88	88	(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
89	89	(2) SAFE NURSE STAFFING STANDARDS; NURSE STAFFING PLAN. (a) A hospital shall
90	90	provide to the department, by a date determined by the department, a nurse staffing
91	91	plan for the upcoming year.
92	92	(b) A hospital shall, in its nurse staffing plan, provide for a collaborative
93	93	practice in the hospital that enhances patient care and the level of services provided
94	94	by nurses and other members of the hospital's patient care team.
95	95	(c) A hospital shall include all of the following in its nurse staffing plan:
96	96	1. A written certification that the nurse staffing plan is sufficient to provide
97	97	adequate and appropriate delivery of health care services to patients during the year.
98	98	2. The hospital's employment practices concerning the use of temporary and
99	99	traveling nurses.
100	100	3. The hospital's process for internal review of the nurse staffing plan.
101	101	4. The hospital's mechanism for obtaining input from staff that provide direct
102	102	patient care, including registered nurses and other members of the hospital's patient
103	103	care team, in the development of the nurse staffing plan.
104	104	5. The minimum registered nurse skill mix for each patient care unit in the
105	105	hospital, including inpatient, critical care, and emergency department staffing.
106	106	6. The method used by the hospital to determine and adjust direct patient care
107	107	nurse staffing levels.
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135	135	7. The supporting personnel assisting on each patient care unit of the hospital.
136	136	8. The number of registered nurses providing direct patient care and the ratio
137	137	of registered nurses to patients in each care unit of the hospital.
138	138	(d) A hospital shall provide in its nurse staffing plan that, at all times during
139	139	each shift within a hospital unit, a registered nurse providing direct patient care is
140	140	assigned to not more than the following number of patients in that hospital unit:
141	141	1. Four patients in an emergency unit.
142	142	2. Two patients in an intensive care emergency unit.
143	143	3. Two trauma patients in a trauma emergency unit.
144	144	4. Two patients in an intensive care unit.
145	145	5. Three patients in a progressive care unit.
146	146	6. Four patients in a telemetry unit.
147	147	7. Five patients in a medical-surgical unit.
148	148	8. Four patients in a pediatric unit.
149	149	9. One patient in an operating room unit.
150	150	10. Two patients in a postanesthesia care unit.
151	151	11. Five patients in an oncology unit.
152	152	12. Five patients in an orthopedic unit.
153	153	13. Six patients in a psychiatry unit.
154	154	14. Four patients in a labor obstetrics unit.
155	155	15. Four patients in a postpartum obstetrics unit.
156	156	16. Four patients in a nursery obstetrics unit.
157	157	17. Two patients in a neonatal intensive care unit.
158	158	(e) A hospital's nurse staffing plan shall be approved by a majority vote of the
159	159	members of the hospital's nurse staffing committee under sub. (3).
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189	189	(f) A hospital, in collaboration with its nurse staffing committee, shall
190	190	implement to the best of its ability the nurse staffing plan.
191	191	(g) If staffing falls below the levels proposed in the nurse staffing plan for the
192	192	previous reporting period, a hospital shall include, in its nurse staffing plan for the
193	193	subsequent reporting period, a description of any differences between the staffing
194	194	levels described in the previous staffing plan and the actual staffing levels for each
195	195	patient care unit and any actions the hospital intends to take to address the
196	196	differences or adjust staffing levels in future staffing plans.
197	197	(h) A hospital shall post its nurse staffing plan on each unit of the hospital in
198	198	a location that is visible, conspicuous, and accessible to staff, patients, and the public.
199	199	(i) The department shall post each hospital's nurse staffing plan on the
200	200	department's website.
201	201	(3) NURSE STAFFING COMMITTEE. (a) A hospital shall maintain a nurse staffing
202	202	committee to assist in the preparation of its nurse staffing plan. The majority of the
203	203	nurse staffing committee members shall be nonsupervisory registered nurses who
204	204	are employed by the hospital and whose primary responsibility is to provide direct
205	205	patient care.
206	206	(b) In a hospital in which registered nurses providing direct patient care are
207	207	included in a collective bargaining unit established under ch. 111, the representative
208	208	of the collective bargaining unit shall select the registered nurse members of the
209	209	nurse staffing committee, subject to the requirements under par. (a).
210	210	(4) NURSE STAFFING RECORDS. (a) A hospital shall maintain accurate records of
211	211	the actual ratios of registered nurses providing direct patient care to patients in each
212	212	unit of the hospital during each shift for at least 3 years. The records must include
213	213	the number of patients in each unit during each shift and the number of registered
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241	241	nurses assigned to provide direct patient care to each patient in each unit during
242	242	each shift.
243	243	(b) A hospital shall make the records under par. (a) available to the department
244	244	and, upon request, to hospital staff, to a collective bargaining representative of
245	245	hospital staff, to patients, and to the public.
246	246	(5) COMPLAINTS. A hospital employee, patient, or member of the public may file
247	247	a complaint with the department to report any suspected violation of subs. (2) to (4).
248	248	(6) HOSPITAL FAILURE TO COMPLY WITH NURSE STAFFING PLAN AND REPORTING
249	249	REQUIREMENTS; CORRECTIVE ACTION; PENALTIES. (a) Nurse staffing plan deadline;
250	250	penalty. The department shall review each nurse staffing plan provided by a hospital
251	251	under sub. (2) (a) to ensure it is received by the date determined by the department
252	252	under sub. (2) (a). A hospital that fails to submit a nurse staffing plan by the date
253	253	determined by the department under sub. (2) (a) shall forfeit $25,000.
254	254	(b) Corrective plan of action; penalty. 1. The department shall investigate a
255	255	complaint received under sub. (5) that is accompanied with documented evidence of
256	256	a hospital's failure to establish a nurse staffing committee, conduct an annual review
257	257	of a nurse staffing plan, submit a nurse staffing plan on an annual basis, or meet the
258	258	nurse staffing levels provided under sub. (2) (d) in violation of sub. (2), (3), or (4).
259	259	2. If, after an investigation, the department determines a violation has
260	260	occurred, the department shall present its findings to the hospital and require the
261	261	hospital to submit a corrective plan of action within 45 days from the time the
262	262	department presented its findings to the hospital.
263	263	3. If a hospital fails to submit or follow a corrective plan of action, the hospital
264	264	may be required to forfeit $5,000 for each day that the hospital fails to submit or
265	265	follow the corrective plan of action. The forfeitures under this subdivision shall
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295	295	accrue until the hospital submits and follows for 90 days a corrective plan of action
296	296	that has been approved by the department. If the hospital follows the corrective plan
297	297	of action for 90 days, the department may reduce the forfeiture amount accrued
298	298	under this subdivision.
299	299	(c) Posting violations. The department shall post on its website a report of
300	300	violations of subs. (2) to (4) and maintain for public inspection records of any civil
301	301	penalties and administrative actions imposed on hospitals under this subsection.
302	302	SECTION 2. 103.035 of the statutes is created to read:
303	303	103.035 Mandatory overtime for registered nurses in hospitals
304	304	prohibited; exceptions. (1) DEFINITIONS. In this section:
305	305	(a) “Hospital” has the meaning given in s. 50.33 (2).
306	306	(b) “Overtime” means any of the following:
307	307	1. Time worked in excess of a regularly scheduled daily work shift that has been
308	308	determined and agreed to before the performance of the work, immediately following
309	309	the regularly scheduled daily work shift.
310	310	2. Time worked in excess of 12 hours in a 24-hour period.
311	311	3. Time worked in excess of 40 hours in a previously determined workweek.
312	312	(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
313	313	(2) MANDATORY OVERTIME PROHIBITED. (a) Except as provided in par. (b), no
314	314	hospital may require a registered nurse to work overtime.
315	315	(b) A hospital may require a registered nurse to work overtime only in one of
316	316	the following instances:
317	317	1. The hospital has determined that the safety of a patient requires that a
318	318	registered nurse work overtime and the hospital has found that no reasonable
319	319	alternative exists.
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347	347	2. The registered nurse is working in an ongoing surgical procedure at the time
348	348	the hospital requires the nurse to work overtime.
349	349	3. The registered nurse is working in a critical care unit and is required to work
350	350	overtime until the nurse is relieved by another scheduled registered nurse.
351	351	4. During any time that the president of the United States declares a public
352	352	health emergency under 50 USC 1621 that affects the region of this state in which
353	353	the hospital is located.
354	354	5. During any time that the governor declares a public health emergency under
355	355	s. 323.10 that affects the region of this state in which the hospital is located.
356	356	6. During any time of adverse weather conditions, catastrophe, or widespread
357	357	illness within the hospital.
358	358	(3) VOLUNTARY COVERAGE. Before requiring a registered nurse to work overtime
359	359	under sub. (2) (b), the hospital shall make a good faith effort to have those work hours
360	360	covered on a voluntary basis.
361	361	(4) RIGHT TO REFUSE MANDATORY OVERTIME. A registered nurse may refuse to
362	362	work overtime if the nurse believes in good faith that the hospital has not made a
363	363	good faith effort to fill the work hours covered by the overtime mandate. A hospital
364	364	may not discharge, retaliate, or discriminate in promotion, in compensation, or in the
365	365	terms, conditions, or privileges of employment against the registered nurse for
366	366	refusing to work the overtime.
367	367	(5) ENFORCEMENT. A registered nurse who is discharged, retaliated, or
368	368	discriminated against in violation of sub. (4) may file a complaint with the
369	369	department, and the department shall process the complaint in the same manner
370	370	that employment discrimination complaints are processed under s. 111.39. If the
371	371	department finds that a hospital has violated sub. (4), the department may order the
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399	399	SECTION 2
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401	401	hospital to take such action under s. 111.39 as will effectuate the purpose of this
402	402	section. Section 111.322 (2m) applies to discharge or other discriminatory acts
403	403	arising in connection with any proceeding under this subsection.
404	404	SECTION 3. 106.54 (10) (c) of the statutes is created to read:
405	405	106.54 (10) (c) The division shall receive complaints under s. 103.035 (5) and
406	406	shall process the complaints in the same manner as employment discrimination
407	407	complaints are processed under s. 111.39.
408	408	SECTION 4. 111.322 (2m) (a) of the statutes is amended to read:
409	409	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
410	410	right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
411	411	103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998, or 995.55, or ss. 101.58
412	412	to 101.599 or 103.64 to 103.82.
413	413	SECTION 5. 111.322 (2m) (b) of the statutes is amended to read:
414	414	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
415	415	held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13,
416	416	103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998,
417	417	or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.
418	418	SECTION 6. 146.998 of the statutes is created to read:
419	419	146.998 Nurse rights regarding safe nursing standards; cause of
420	420	action. (1) DEFINITIONS. In this section:
421	421	(a) “Hospital” has the meaning given in s. 50.33 (2).
422	422	(b) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
423	423	(2) RIGHT TO REFUSE. A registered nurse may object to or refuse to participate
424	424	in an activity, policy, practice, assignment, or task if, in good faith and in the
425	425	registered nurse's professional judgment, the registered nurse is not prepared by
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453	453	education, training, or experience to fulfill the activity, policy, practice, assignment,
454	454	or task without compromising the safety of a patient or jeopardizing the registered
455	455	nurse's license. A registered nurse's professional judgment under this subsection
456	456	shall be based upon the registered nurse's application of knowledge, expertise, and
457	457	experience in conducting a comprehensive nursing assessment of a patient and
458	458	making independent decisions about patient care in accordance with state law and
459	459	administrative rules, including the need for additional staff.
460	460	(3) DISCIPLINARY ACTION PROHIBITED. A hospital may not do any of the following
461	461	in response to a registered nurse's refusal to participate in an activity, policy,
462	462	practice, assignment, or task under this section:
463	463	(a) Discharge, retaliate, or discriminate against, or otherwise subject the
464	464	registered nurse to an adverse action with respect to any aspect of the registered
465	465	nurse's employment, including actions related to promotion, compensation, or terms,
466	466	conditions, or privileges of employment.
467	467	(b) File a complaint or report against a registered nurse with a state
468	468	professional disciplinary entity.
469	469	(4) CAUSE OF ACTION. A registered nurse or the collective bargaining
470	470	representative or legal representative of a nurse who has been discharged,
471	471	retaliated, or discriminated against, subjected to an adverse action, or the subject of
472	472	a complaint or report filed with a state professional disciplinary entity in violation
473	473	of sub. (3) may bring a cause of action against the hospital that violated sub. (3). A
474	474	registered nurse who prevails in a cause of action under this subsection is entitled
475	475	to at least one of the following:
476	476	(a) Reinstatement.
477	477	(b) Reimbursement of lost wages, compensation, and benefits.
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507	507	(c) Reasonable attorney fees, notwithstanding s. 814.04 (1).
508	508	(d) Court costs.
509	509	(e) Any other reasonable damages.
510	510	SECTION 7.0Initial applicability.
511	511	(1) COLLECTIVE BARGAINING AGREEMENTS. This act first applies to a registered
512	512	nurse, as defined in s. 146.40 (1) (f), who is affected by a collective bargaining
513	513	agreement that contains provisions inconsistent with this act on the day on which
514	514	the collective bargaining agreement expires or is extended, modified, or renewed,
515	515	whichever occurs first.
516	516	SECTION 8.0Effective dates. This act takes effect on the day after publication,
517	517	except as follows:
518	518	(1) NURSE STAFFING RECORDS. The treatment of s. 50.373 (4) takes effect on the
519	519	first day of the 4th month beginning after publication.
520	520	(END)
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