COMMITTEE SUBSTITUTE


FOR

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 78

(By Senators Hunter, Dempsey and Weeks)

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[Originating in the Committee on the Judiciary;

reported February 28, 2003.]

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A BILL to amend chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-f, relating to providing quality health care in hospitals; providing for certain requirements for hospital overtime policies; limiting number of hours worked in a day; providing exceptions for unforeseen emergent circumstances; providing for reasonable efforts to be made to prevent mandatory overtime; protecting workers from discrimination for refusing mandatory overtime; providing division of labor enforce article; providing administrative procedures by rule; and creating civil penalties.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-f, to read as follows:
ARTICLE 5F. HOSPITAL OVERTIME PROCEDURES.
§21-5F-1. Definitions.
(a) For the purposes of this article:
(1) "Health care worker" means a certified or licensed practical nurse, a registered nurse or a certified nurse assistant employed in a hospital who is providing nursing services and is involved in direct patient care activities or clinical services, and who receives an hourly wage or is a contract worker, but does not include licensed physicians, certified nurse anaesthetist or advanced practice nurses.
(2) "Hospital" means a facility licensed under the provisions of article five-b, chapter sixteen of this code, but does not include hospitals operated by state or federal agencies.
(3) "Overtime" means the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift within a 24-hour period.
(4) "Unforeseen emergent situation" means:
(A) An unpredictable or unavoidable occurrence at unscheduled intervals relating to health care delivery that requires immediate action; or
(B) Any unpredictable or unavoidable occurrence which substantially affects or increases the need for health care services, including, but not limited to, a declared national, state or local emergency, a natural disaster, severe weather or other catastrophic event.
(C) An unforeseen emergent situation does not include situations in which the hospital has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and scheduled health care worker medical leave.
§21-5F-2. Legislative findings and purpose.
(a) The Legislature finds and declares that:
(1) It is essential that qualified registered nurses and other licensed health care workers providing direct patient care be available to meet the needs of patients;
(2) Quality patient care is jeopardized by nurses that work unnecessarily long hours in hospitals;
(3) Health care workers, especially nurses, are leaving their professions because of workplace stresses, long work hours and depreciation of their essential role in the delivery of quality, direct patient care;
(4) It is necessary to safeguard the efficiency, health and general well-being of health care workers in hospitals, as well as the health and general well-being of the persons who use their services by requiring hospitals to establish overtime policies for certain classifications of health care workers; and
(5) It is further necessary that health care workers be aware of their rights, duties and remedies with regard to hospital overtime policies.
§21-5F-3. Overtime policy required.
(a) Hospitals shall develop overtime policies for all health care workers.
(1) The overtime policy shall be posted in a conspicuous place and provided to all health care workers and prospective employees. Copies of the overtime policy may be provided to patients and the public upon request.
(2) The overtime policy shall identify which health care workers are covered by the policy and the overtime policy shall be stated in regard to each category of health care workers. The policy may be different for different categories of health care workers.
(3) The overtime policy shall detail what reasonable efforts the hospital will use to avoid mandatory overtime.
(4) The "reasonable efforts" shall include at least good faith attempts by the hospital to:
(A) Find persons to volunteer to work extra time from all available qualified staff who are working at the time of the unforeseen emergent situation;
(B) Contact all qualified health care workers who have agreed to make themselves available to work extra time;
(C) Use per diem staff; and
(D) Each hospital's policy should set forth clearly procedures to ensure proper patient care during a shortage caused by a health care worker's failing to give advance, appropriate or less than two hours' notice for time off.
(5) No health care worker shall be required to work at a hospital subject to this article more than sixteen hours in a 24- hour period unless there is an unforeseen emergent situation as defined in this article. The health care worker is responsible for notifying in writing the hospital of hours worked in a 24-hour period that would apply to his provision. Failure of the health care worker to notify each hospital for which the health care worker worked during such 24-hour period causes the health care worker to forfeit the right to file a complaint for a violation of this article or for the complaint to be considered a violation of this article as provided for in section five.
(6) It is against public policy for a health care worker to be required to work in excess of an agreed to, predetermined and regularly scheduled daily work shift, except when the overtime is required as a last resort and the hospital has exhausted reasonable efforts to obtain staffing.
(7) The requirement that the hospital exhaust reasonable efforts to obtain staffing does not apply in the event of an unforeseen emergent situation as defined in this article.
§21-5F-4. Regulation of overtime.
(a) (1) The acceptance by any health care worker of work in excess of an agreed to, predetermined and regularly scheduled daily work shift is strictly voluntary on behalf of the health care worker.
(2) The refusal of any health care worker to accept the overtime work:
(A) Is not patient abandonment or grounds for discrimination, dismissal, discharge or any other penalty or employment decision adverse to the health care worker unless the hospital advises the health care worker of the unforeseen emergent situation and that the absence of the health care worker could have an adverse effect on a patient; and
(B) May not be used by any entity charged with issuing a professional license or certification as a basis for disciplinary action against the health care worker or the health care worker's license or certification.
(b) (1) The provisions of this section do not apply when in the case of an unforeseen emergent situation as described in this article when:
(A) The overtime is required only as a last resort and is not used to fill vacancies resulting from chronic short staffing; and
(B) The hospital has exhausted reasonable efforts to obtain staffing.
(2) Except in the event of an unforeseen emergent situation, the hospital shall provide the health care worker with necessary time, up to a maximum of two hours, to arrange, if needed, for the care of the health care worker's minor children or make other personal arrangements.
(c) In the event that an hospital mandates a health care worker to work overtime pursuant to subsection (b) of this section, the hospital shall document in writing the reasonable efforts it has made to obtain staffing. The documentation for the need for the mandated overtime shall be made available for review by the department of health and human resources and the division of labor.
(d) In no event shall a health care worker be required to work more than sixteen hours in any 24-hour period except:
(1) In the case of unforeseen emergent situations; or
(2) When an health care worker is required to work overtime to complete a patient care procedure already in progress where the absence of the health care worker could have an adverse effect on the patient.
§21-5F-5. Enforcement; offenses and penalties.
(a) Pursuant to the powers set forth in article one of this chapter, the commissioner of labor is charged with the enforcement of this article. The commissioner shall, by rule, establish procedures for enforcement of this article.
(b) Any complaint must be filed with the commissioner of labor regarding an alleged violation of the provisions of this article must be made within ninety days following the occurrence of the incident giving rise to the alleged violation.
(c) The administrative penalty for the first violation of this article shall include reprimand.
(d) For a second violation, administrative penalties shall include reprimand and notice to establish a plan of correction.
(e) For a third violation, administrative penalties shall include reprimand, notice to establish a plan of correction and civil fines not to exceed five hundred dollars.
(f) For every offense thereafter, administrative penalties shall include reprimand, notice to establish a plan of correction and civil fines not to exceed one thousand dollars .
(g) No civil fines may be imposed for any violation that may occurs prior to the first day of July, two thousand four.
(h) All reports of violations made within a 24-hour period will constitute a single violation.
(i) The commissioner shall also have the authority to seek injunctive relief for any violation to require compliance with the article.
(j) All proceeds for any civil fines paid pursuant to a violation of this article shall be paid into the public health trust fund administered by the office of the attorney general.


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(NOTE: The purpose of this bill is to require hospitals to prepare and post overtime policies for the various categories of health care workers. Hospitals are required to make reasonable efforts to avoid imposing mandatory overtime, except in unforeseen emergent situations. Enforcement is by the division of labor through civil penalties.)

This article is new; therefore, strike-throughs and underscoring have been omitted. )