Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB470 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 SENATE BILL 470
5	5	September 29, 2023 - Introduced by Senators LARSON, CARPENTER, HESSELBEIN and
6	6	L. JOHNSON, cosponsored by Representatives HONG, RATCLIFF, SHELTON,
7	7	CABRERA, JOERS, J. ANDERSON, SINICKI, STUBBS, PALMERI, CLANCY, C. ANDERSON,
8	8	ORTIZ-VELEZ and SUBECK. Referred to Committee on Health.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to amend 111.322 (2m) (a) and 111.322 (2m) (b); and to create 50.373,
11	11	103.035, 106.54 (10) (c) and 146.998 of the statutes; relating to: minimum
12	12	nurse staffing ratios in hospitals, registered nurses' right to refuse a work
13	13	assignment, prohibiting mandatory overtime for registered nurses, and
14	14	providing a penalty.
15	15	Analysis by the Legislative Reference Bureau
16	16	This bill requires hospitals to develop and adhere to a plan for staffing
17	17	registered nurses. Under the bill, the nurse staffing plan must meet certain
18	18	standards, including being created and approved by a nurse staffing committee, the
19	19	majority of which must be registered nurses in nonsupervisory positions; reviewed
20	20	annually by the hospital; provided to the Department of Health Services annually,
21	21	by a deadline set by DHS; and posted in every unit of the hospital and on the DHS
22	22	website. The bill establishes minimum nurse-to-patient ratios that the hospital
23	23	must maintain for each unit in the hospital. Under the bill, hospitals must keep for
24	24	at least three years records of its nurse staffing ratios and actual staffing numbers.
25	25	Under the bill, a hospital that fails to provide DHS with its nurse staffing plan
26	26	by the deadline set by DHS is subject to a civil penalty of $25,000. In addition, a
27	27	hospital that fails to form a nurse staffing committee, annually review its nurse
28	28	staffing plan, annually submit its nurse staffing plan to DHS, or adhere to required
29	29	nurse-to-patient staffing ratios must submit a corrective action plan to DHS. Under
30	30	the bill, a hospital may be subject to a civil penalty of $5,000 for each day the hospital
31	31	fails to submit or comply with a corrective action plan.
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38	38	SENATE BILL 470
39	39	In addition, the bill provides that registered nurses have the right to refuse a
40	40	work assignment if the nurse, in good faith and in the nurse's professional judgment,
41	41	finds that the nurse is unable to fulfill the assignment without compromising patient
42	42	safety or the nurse's license. The bill creates a cause of action for a nurse against a
43	43	hospital that disciplines, discharges, retaliates, discriminates, takes adverse action,
44	44	or files a complaint with a disciplinary agency against a nurse that refuses to
45	45	complete an assignment under those circumstances.
46	46	Under current law, subject to certain exceptions, an employer must pay an
47	47	employee who receives an hourly wage one and one-half times the employee's
48	48	regular rate of pay for all hours worked in excess of 40 hours per week, but current
49	49	law, with exceptions under child labor laws, does not prohibit an employer from
50	50	requiring an employee to work in excess of 40 hours per week.
51	51	This bill prohibits a hospital from requiring a registered nurse to work
52	52	overtime. Under the bill, overtime is work in excess of any of the following: 1) a
53	53	regularly scheduled predetermined shift immediately following that shift; 2) 12
54	54	hours in a 24-hour period; or 3) 40 hours in a scheduled workweek.
55	55	The prohibition on mandatory overtime under the bill does not apply in cases
56	56	in which the registered nurse is involved in an ongoing surgical procedure, the
57	57	registered nurse's presence is essential to the health and safety of a patient, the
58	58	nurse is working in a critical care unit, or a public health emergency has been
59	59	declared by the president of the United States or the governor, or during periods of
60	60	adverse weather, catastrophe, or widespread illness within the hospital.
61	61	A registered nurse who is discharged or discriminated against for refusing to
62	62	work overtime or for opposing a practice prohibited under the bill, for filing a
63	63	complaint or attempting to enforce a right provided under the bill, or for testifying
64	64	or assisting in any action or proceeding to enforce such a right may file a complaint
65	65	with the Department of Workforce Development, and DWD must process the
66	66	complaint in the same manner that employment discrimination complaints are
67	67	processed under current law.
68	68	For further information see the state fiscal estimate, which will be printed as
69	69	an appendix to this bill.
70	70	The people of the state of Wisconsin, represented in senate and assembly, do
71	71	enact as follows:
72	72	SECTION 1. 50.373 of the statutes is created to read:
73	73	50.373 Hospital nurse staffing requirements. (1) DEFINITIONS. In this
74	74	section:
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82	82	(a) “Direct patient care” means any direct patient contact or treatment,
83	83	including consultation, diagnostic tests and procedures, therapeutic procedures,
84	84	pathological analyses and reports, and any other direct medical or health services.
85	85	(b) “Nurse staffing plan” means a plan developed and provided to the
86	86	department under sub. (2) (a).
87	87	(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
88	88	(2) SAFE NURSE STAFFING STANDARDS; NURSE STAFFING PLAN. (a) A hospital shall
89	89	provide to the department, by a date determined by the department, a nurse staffing
90	90	plan for the upcoming year.
91	91	(b) A hospital shall, in its nurse staffing plan, provide for a collaborative
92	92	practice in the hospital that enhances patient care and the level of services provided
93	93	by nurses and other members of the hospital's patient care team.
94	94	(c) A hospital shall include all of the following in its nurse staffing plan:
95	95	1. A written certification that the nurse staffing plan is sufficient to provide
96	96	adequate and appropriate delivery of health care services to patients during the year.
97	97	2. The hospital's employment practices concerning the use of temporary and
98	98	traveling nurses.
99	99	3. The hospital's process for internal review of the nurse staffing plan.
100	100	4. The hospital's mechanism for obtaining input from staff that provide direct
101	101	patient care, including registered nurses and other members of the hospital's patient
102	102	care team, in the development of the nurse staffing plan.
103	103	5. The minimum registered nurse skill mix for each patient care unit in the
104	104	hospital, including inpatient, critical care, and emergency department staffing.
105	105	6. The method used by the hospital to determine and adjust direct patient care
106	106	nurse staffing levels.
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134	134	7. The supporting personnel assisting on each patient care unit of the hospital.
135	135	8. The number of registered nurses providing direct patient care and the ratio
136	136	of registered nurses to patients in each care unit of the hospital.
137	137	(d) A hospital shall provide in its nurse staffing plan that, at all times during
138	138	each shift within a hospital unit, a registered nurse providing direct patient care is
139	139	assigned to not more than the following number of patients in that hospital unit:
140	140	1. Four patients in an emergency unit.
141	141	2. Two patients in an intensive care emergency unit.
142	142	3. Two trauma patients in a trauma emergency unit.
143	143	4. Two patients in an intensive care unit.
144	144	5. Three patients in a progressive care unit.
145	145	6. Four patients in a telemetry unit.
146	146	7. Five patients in a medical-surgical unit.
147	147	8. Four patients in a pediatric unit.
148	148	9. One patient in an operating room unit.
149	149	10. Two patients in a postanesthesia care unit.
150	150	11. Five patients in an oncology unit.
151	151	12. Five patients in an orthopedic unit.
152	152	13. Six patients in a psychiatry unit.
153	153	14. Four patients in a labor obstetrics unit.
154	154	15. Four patients in a postpartum obstetrics unit.
155	155	16. Four patients in a nursery obstetrics unit.
156	156	17. Two patients in a neonatal intensive care unit.
157	157	(e) A hospital's nurse staffing plan shall be approved by a majority vote of the
158	158	members of the hospital's nurse staffing committee under sub. (3).
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186	186	SECTION 1
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188	188	(f) A hospital, in collaboration with its nurse staffing committee, shall
189	189	implement to the best of its ability the nurse staffing plan.
190	190	(g) If staffing falls below the levels proposed in the nurse staffing plan for the
191	191	previous reporting period, a hospital shall include, in its nurse staffing plan for the
192	192	subsequent reporting period, a description of any differences between the staffing
193	193	levels described in the previous staffing plan and the actual staffing levels for each
194	194	patient care unit and any actions the hospital intends to take to address the
195	195	differences or adjust staffing levels in future staffing plans.
196	196	(h) A hospital shall post its nurse staffing plan on each unit of the hospital in
197	197	a location that is visible, conspicuous, and accessible to staff, patients, and the public.
198	198	(i) The department shall post each hospital's nurse staffing plan on the
199	199	department's website.
200	200	(3) NURSE STAFFING COMMITTEE. (a) A hospital shall maintain a nurse staffing
201	201	committee to assist in the preparation of its nurse staffing plan. The majority of the
202	202	nurse staffing committee members shall be nonsupervisory registered nurses who
203	203	are employed by the hospital and whose primary responsibility is to provide direct
204	204	patient care.
205	205	(b) In a hospital in which registered nurses providing direct patient care are
206	206	included in a collective bargaining unit established under ch. 111, the representative
207	207	of the collective bargaining unit shall select the registered nurse members of the
208	208	nurse staffing committee, subject to the requirements under par. (a).
209	209	(4) NURSE STAFFING RECORDS. (a) A hospital shall maintain accurate records of
210	210	the actual ratios of registered nurses providing direct patient care to patients in each
211	211	unit of the hospital during each shift for at least 3 years. The records must include
212	212	the number of patients in each unit during each shift and the number of registered
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239	239	SECTION 1 SENATE BILL 470
240	240	nurses assigned to provide direct patient care to each patient in each unit during
241	241	each shift.
242	242	(b) A hospital shall make the records under par. (a) available to the department
243	243	and, upon request, to hospital staff, to a collective bargaining representative of
244	244	hospital staff, to patients, and to the public.
245	245	(5) COMPLAINTS. A hospital employee, patient, or member of the public may file
246	246	a complaint with the department to report any suspected violation of subs. (2) to (4).
247	247	(6) HOSPITAL FAILURE TO COMPLY WITH NURSE STAFFING PLAN AND REPORTING
248	248	REQUIREMENTS; CORRECTIVE ACTION; PENALTIES. (a) Nurse staffing plan deadline;
249	249	penalty. The department shall review each nurse staffing plan provided by a hospital
250	250	under sub. (2) (a) to ensure it is received by the date determined by the department
251	251	under sub. (2) (a). A hospital that fails to submit a nurse staffing plan by the date
252	252	determined by the department under sub. (2) (a) shall forfeit $25,000.
253	253	(b) Corrective plan of action; penalty. 1. The department shall investigate a
254	254	complaint received under sub. (5) that is accompanied with documented evidence of
255	255	a hospital's failure to establish a nurse staffing committee, conduct an annual review
256	256	of a nurse staffing plan, submit a nurse staffing plan on an annual basis, or meet the
257	257	nurse staffing levels provided under sub. (2) (d) in violation of sub. (2), (3), or (4).
258	258	2. If, after an investigation, the department determines a violation has
259	259	occurred, the department shall present its findings to the hospital and require the
260	260	hospital to submit a corrective plan of action within 45 days from the time the
261	261	department presented its findings to the hospital.
262	262	3. If a hospital fails to submit or follow a corrective plan of action, the hospital
263	263	may be required to forfeit $5,000 for each day that the hospital fails to submit or
264	264	follow the corrective plan of action. The forfeitures under this subdivision shall
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292	292	SECTION 1
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294	294	accrue until the hospital submits and follows for 90 days a corrective plan of action
295	295	that has been approved by the department. If the hospital follows the corrective plan
296	296	of action for 90 days, the department may reduce the forfeiture amount accrued
297	297	under this subdivision.
298	298	(c) Posting violations. The department shall post on its website a report of
299	299	violations of subs. (2) to (4) and maintain for public inspection records of any civil
300	300	penalties and administrative actions imposed on hospitals under this subsection.
301	301	SECTION 2. 103.035 of the statutes is created to read:
302	302	103.035 Mandatory overtime for registered nurses in hospitals
303	303	prohibited; exceptions. (1) DEFINITIONS. In this section:
304	304	(a) “Hospital” has the meaning given in s. 50.33 (2).
305	305	(b) “Overtime” means any of the following:
306	306	1. Time worked in excess of a regularly scheduled daily work shift that has been
307	307	determined and agreed to before the performance of the work, immediately following
308	308	the regularly scheduled daily work shift.
309	309	2. Time worked in excess of 12 hours in a 24-hour period.
310	310	3. Time worked in excess of 40 hours in a previously determined workweek.
311	311	(c) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
312	312	(2) MANDATORY OVERTIME PROHIBITED. (a) Except as provided in par. (b), no
313	313	hospital may require a registered nurse to work overtime.
314	314	(b) A hospital may require a registered nurse to work overtime only in one of
315	315	the following instances:
316	316	1. The hospital has determined that the safety of a patient requires that a
317	317	registered nurse work overtime and the hospital has found that no reasonable
318	318	alternative exists.
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345	345	SECTION 2 SENATE BILL 470
346	346	2. The registered nurse is working in an ongoing surgical procedure at the time
347	347	the hospital requires the nurse to work overtime.
348	348	3. The registered nurse is working in a critical care unit and is required to work
349	349	overtime until the nurse is relieved by another scheduled registered nurse.
350	350	4. During any time that the president of the United States declares a public
351	351	health emergency under 50 USC 1621 that affects the region of this state in which
352	352	the hospital is located.
353	353	5. During any time that the governor declares a public health emergency under
354	354	s. 323.10 that affects the region of this state in which the hospital is located.
355	355	6. During any time of adverse weather conditions, catastrophe, or widespread
356	356	illness within the hospital.
357	357	(3) VOLUNTARY COVERAGE. Before requiring a registered nurse to work overtime
358	358	under sub. (2) (b), the hospital shall make a good faith effort to have those work hours
359	359	covered on a voluntary basis.
360	360	(4) RIGHT TO REFUSE MANDATORY OVERTIME. A registered nurse may refuse to
361	361	work overtime if the nurse believes in good faith that the hospital has not made a
362	362	good faith effort to fill the work hours covered by the overtime mandate. A hospital
363	363	may not discharge, retaliate, or discriminate in promotion, in compensation, or in the
364	364	terms, conditions, or privileges of employment against the registered nurse for
365	365	refusing to work the overtime.
366	366	(5) ENFORCEMENT. A registered nurse who is discharged, retaliated, or
367	367	discriminated against in violation of sub. (4) may file a complaint with the
368	368	department, and the department shall process the complaint in the same manner
369	369	that employment discrimination complaints are processed under s. 111.39. If the
370	370	department finds that a hospital has violated sub. (4), the department may order the
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398	398	SECTION 2
399	399	SENATE BILL 470
400	400	hospital to take such action under s. 111.39 as will effectuate the purpose of this
401	401	section. Section 111.322 (2m) applies to discharge or other discriminatory acts
402	402	arising in connection with any proceeding under this subsection.
403	403	SECTION 3. 106.54 (10) (c) of the statutes is created to read:
404	404	106.54 (10) (c) The division shall receive complaints under s. 103.035 (5) and
405	405	shall process the complaints in the same manner as employment discrimination
406	406	complaints are processed under s. 111.39.
407	407	SECTION 4. 111.322 (2m) (a) of the statutes is amended to read:
408	408	111.322 (2m) (a) The individual files a complaint or attempts to enforce any
409	409	right under s. 103.02, 103.035, 103.10, 103.11, 103.13, 103.28, 103.32, 103.34,
410	410	103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998, or 995.55, or ss. 101.58
411	411	to 101.599 or 103.64 to 103.82.
412	412	SECTION 5. 111.322 (2m) (b) of the statutes is amended to read:
413	413	111.322 (2m) (b) The individual testifies or assists in any action or proceeding
414	414	held under or to enforce any right under s. 103.02, 103.035, 103.10, 103.11, 103.13,
415	415	103.28, 103.32, 103.34, 103.455, 104.12, 109.03, 109.07, 109.075, 146.997, 146.998,
416	416	or 995.55, or ss. 101.58 to 101.599 or 103.64 to 103.82.
417	417	SECTION 6. 146.998 of the statutes is created to read:
418	418	146.998 Nurse rights regarding safe nursing standards; cause of
419	419	action. (1) DEFINITIONS. In this section:
420	420	(a) “Hospital” has the meaning given in s. 50.33 (2).
421	421	(b) “Registered nurse” has the meaning given in s. 146.40 (1) (f).
422	422	(2) RIGHT TO REFUSE. A registered nurse may object to or refuse to participate
423	423	in an activity, policy, practice, assignment, or task if, in good faith and in the
424	424	registered nurse's professional judgment, the registered nurse is not prepared by
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451	451	SECTION 6 SENATE BILL 470
452	452	education, training, or experience to fulfill the activity, policy, practice, assignment,
453	453	or task without compromising the safety of a patient or jeopardizing the registered
454	454	nurse's license. A registered nurse's professional judgment under this subsection
455	455	shall be based upon the registered nurse's application of knowledge, expertise, and
456	456	experience in conducting a comprehensive nursing assessment of a patient and
457	457	making independent decisions about patient care in accordance with state law and
458	458	administrative rules, including the need for additional staff.
459	459	(3) DISCIPLINARY ACTION PROHIBITED. A hospital may not do any of the following
460	460	in response to a registered nurse's refusal to participate in an activity, policy,
461	461	practice, assignment, or task under this section:
462	462	(a) Discharge, retaliate, or discriminate against, or otherwise subject the
463	463	registered nurse to an adverse action with respect to any aspect of the registered
464	464	nurse's employment, including actions related to promotion, compensation, or terms,
465	465	conditions, or privileges of employment.
466	466	(b) File a complaint or report against a registered nurse with a state
467	467	professional disciplinary entity.
468	468	(4) CAUSE OF ACTION. A registered nurse or the collective bargaining
469	469	representative or legal representative of a nurse who has been discharged,
470	470	retaliated, or discriminated against, subjected to an adverse action, or the subject of
471	471	a complaint or report filed with a state professional disciplinary entity in violation
472	472	of sub. (3) may bring a cause of action against the hospital that violated sub. (3). A
473	473	registered nurse who prevails in a cause of action under this subsection is entitled
474	474	to at least one of the following:
475	475	(a) Reinstatement.
476	476	(b) Reimbursement of lost wages, compensation, and benefits.
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506	506	(c) Reasonable attorney fees, notwithstanding s. 814.04 (1).
507	507	(d) Court costs.
508	508	(e) Any other reasonable damages.
509	509	SECTION 7.0Initial applicability.
510	510	(1) COLLECTIVE BARGAINING AGREEMENTS. This act first applies to a registered
511	511	nurse, as defined in s. 146.40 (1) (f), who is affected by a collective bargaining
512	512	agreement that contains provisions inconsistent with this act on the day on which
513	513	the collective bargaining agreement expires or is extended, modified, or renewed,
514	514	whichever occurs first.
515	515	SECTION 8.0Effective dates. This act takes effect on the day after publication,
516	516	except as follows:
517	517	(1) NURSE STAFFING RECORDS. The treatment of s. 50.373 (4) takes effect on the
518	518	first day of the 4th month beginning after publication.
519	519	(END)
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