NURSING RATIOS: WAVE OF THE FUTURE?

By Sarah B. Knowlton

In its 2007 session, the Maine legislature rejected a proposed bill that would have established hospital staffing ratios for the first time in the state. The bill (LD 1538)- supported largely by the Maine State Nurses Association, the union which represents approximately 1100 nurses in the state - was opposed by the Maine Hospital Association and the Maine Medical Association and was ultimately defeated. Are mandated nursing ratios the next wave in health care reform, or is the Maine legislation reflective of advocacy efforts of a limited constituency?

California passed first in the nation nursing ratio legislation in 1999. Yet to date, no other states have followed suit. The premise behind the California legislation was that the quality of patient care had been compromised by managed care and the shortage of nurses. Those in favor of the legislation argued that hospital staffing decisions should be based solely on the severity of the patient's condition, the services needed and the patient's care needs. While the California law has been controversial (and challenged in court by the California Hospital Association), it does remain in effect. Some hospitals in California have reported closing units and longer waits in emergency rooms because they do not have sufficient nurses to meet the mandated ratios.

The U.S. Congress considered and rejected federal legislation requiring nursing ratios in 2004. The Nurse Staffing Standards for Patient Safety and Quality Care Act would have established ratios for 18 different types of hospital units across the country. Massachusetts formed a commission to study the practice of nursing, and issued a report in 2001 recommending legislation establishing patient/staff guidelines "that are based in reality and based on patient acuity levels"- much in the same spirit of the California legislation. New Jersey and Illinois have also considered similar legislation.

It is against this backdrop that LD 1538, "An Act to Increase the Safety of Hospital Patients," was introduced in this past Maine legislative session. This was the second attempt in the past four years in Maine to enact a law requiring nurse-to-patient ratios. After the last effort, the Maine Quality Forum conducted a study that found that there was no evidence showing that mandated staffing ratios guarantee quality of care.

Despite these study results, LD 1538 would have established minimum nurse-to-patient ratios for 17 different hospital units. The proposed ratios varied from 1:22 for intensive care units to 1:5 for rehabilitation units or skilled nursing facilities. Hospitals would have been required to develop patient classification systems for determining patient care needs and shift-by-shift staffing based on those requirements. The bill did not allow for any averaging of the number of patients or the total number of direct care registered nurse on a unit during a shift or over any period of time. Similarly, nurse administrators, supervisors, managers, charge nurses and case managers would not have counted towards the required ratios.

Hospitals, already suffering due to the existing nursing shortage, would have been prohibited from imposing any mandatory overtime requirements to meet the staffing ratios. The proposal also provided whistleblower protection to nurses responsible for patient care who reported any unsafe practices, violations of policy, regulation, rule or law.

The bill also created a "hospital nursing practice standard," a law that would have dictated to hospital nurses how they must perform their jobs. For example, under the proposed standard, hospital nurses would have been obligated to determine whether they have the competency for each patient care assignment and assess each medical order, determine whether it was in the patient's best interest and initiated by someone who was legally authorized to make such an order. The bill further provided that hospital nurses have the right of free speech as "a necessary incident of the professional nurse's duty and the right of patient advocacy," and created protections for that right both at work and during off-duty hours.

Hospitals violating the bill would have been subject to license suspension or revocation actions and significant financial penalties. The bill would have levied fines up to $25,000 per violation plus $10,000 per nursing unit shift until the violation was corrected, and civil penalties of up to $25,000 for interference with the nurse's free speech rights created by the bill. Individual hospital managers, nursing service or medical personnel would also have been subject to fines up to $25,000 for violations under the bill.

After significant legislative debate, the bill in its original form was defeated. However the debate lives on. A resolution was passed "to further the collection of hospital quality data regarding nurse staffing." This resolution, which was signed by the governor on June 19, 2007, requires the Maine Health Data Organization to include the submission of measures of nursing satisfaction using metrics that would be comparable to national benchmark data. In an apparent effort to address the free speech concerns of nurses, the resolution requires the state Department of Health and Human Services to promulgate rules to require hospitals to notify annually each of its registered nurses of their rights under the state Whistleblowers' Protection Act.

Perhaps understanding whether nurses in Maine experience job satisfaction when measured against their peers nationally will add another important element to the discussion of nursing ratio legislation. Yet at the end of the day, it seems unlikely that states will mandate measures that will only drive up the cost of health care, when consumers are already facing staggering increases in health insurance premiums and providers face ever decreasing reimbursement.

Sarah B. Knowlton is a director at McLane, Graf, Raulerson & Middleton, Professional Association and co-chair of the firm's Healthcare Practice Group. She can be contacted directly at 603-334-6928 or at sarah.knowlton@mclane.com.