71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
SA to A-Eng. HB 2800 (A to RC)
LC 1221/HB 2800-A12
SENATE AMENDMENTS TO
A-ENGROSSED HOUSE BILL 2800
(INCLUDING AMENDMENTS TO RESOLVE CONFLICTS)
By COMMITTEE ON JUDICIARY
June 4
On page 1 of the printed A-engrossed bill, line 3, after '
441.030' insert ', 441.057 and 659.095'.
Delete lines 5 through 25 and delete pages 2 and 3 and insert:
' { + SECTION 1. + } { + As used in sections 2 to 7 of this
2001 Act, ' hospital' includes a hospital as described in ORS
442.015 and an acute inpatient care facility as defined in ORS
442.470. + }
' { + SECTION 2. + } { + (1) A hospital shall be responsible
for the development and implementation of a written hospital-wide
staffing plan for nursing services. The hospital shall have a
process that ensures the consideration of input from direct care
clinical staff in the development, implementation, monitoring,
evaluation and modification of the staffing plan. The staffing
plan shall include the number, qualifications and categories of
nursing staff needed for all units.
' (2) The hospital shall evaluate and monitor the written
staffing plan for nursing services for effectiveness and revise
the plan as necessary as part of the hospital's quality assurance
process. The hospital shall maintain written documentation of
these quality assurance activities.
' (3) The written staffing plan shall:
' (a) Be based on the nursing care required by the aggregate
and individual needs of patients. This nursing care shall be the
major consideration in determining the number and categories of
nursing staff needed.
' (b) Be based on the specialized qualifications and
competencies of the nursing staff. The skill mix and the
competency of the staff shall ensure that the nursing care needs
of the patients are met and shall ensure patient safety.
' (c) Be consistent with the scopes of practice for registered
nurses, licensed practical nurses and the authorized duties of
certified nursing assistants.
' (4) The written staffing plan for nursing services shall
establish minimum numbers of nursing staff, including licensed
nurses and certified nursing assistants, on specified shifts. The
number of nursing staff on duty shall be sufficient to ensure
that the nursing care needs of each patient are met. At least one
registered nurse and one other nursing care staff member must be
on duty when a patient is present.
' (5) A hospital shall maintain and post a list of qualified,
on-call nursing staff and nursing services that may be called to
provide replacement staff in the event of sickness, vacations,
vacancies and other absences of nursing staff and that provides a
sufficient number of replacement staff for the hospital on a
regular basis. + }
' { + SECTION 3. + } { + Upon request of a hospital, the
Health Division may grant variances in the written staffing plan
requirements based on patient care needs or the nursing practices
of the hospital. + }
' { + SECTION 4. + } { + (1) After a hospital learns about
the need for replacement staff, the hospital shall make every
reasonable effort to obtain registered nurses for unfilled hours
or shifts before requiring a registered nurse to work overtime.
' (2) A hospital may not require a registered nurse to work:
' (a) More than two hours beyond a regularly scheduled shift;
and
' (b) More than 16 hours in a 24-hour time period.
' (3) The provisions of this section do not apply to nursing
staff needs:
' (a) In the event of a national or state emergency or
circumstances requiring the implementation of a facility disaster
plan;
' (b) In emergency circumstances identified by the Health
Division by rule; or
' (c) If a hospital has made reasonable efforts to contact all
of the qualified, on-call nursing staff and nursing services on
the list described in section 2 of this 2001 Act and is unable to
obtain replacement staff in a timely manner. + }
' { + SECTION 5. + } { + A registered nurse at a hospital
may not place a patient at risk of harm by leaving a patient care
assignment during an agreed upon shift or an agreed upon extended
shift without authorization from the appropriate supervisory
personnel. + }
' { + SECTION 6. + } { + (1) The Health Division may impose
civil penalties in the manner provided in ORS 183.090 or suspend
or revoke a license of a hospital for a violation of any
provision of section 2 or 4 of this 2001 Act. The division shall
adopt by rule a schedule establishing the amount of civil penalty
that may be imposed for any violation of section 2 or 4 of this
2001 Act when there is a reasonable belief that safe patient care
has been or may be negatively impacted. A civil penalty imposed
under this subsection may not exceed $5,000. Each violation of a
nursing staff plan shall be considered a separate violation. Any
license that is suspended or revoked under this subsection shall
be suspended or revoked as provided in ORS 441.030.
' (2) The division shall maintain for public inspection records
of any civil penalties or license suspensions or revocations
imposed on hospitals penalized under subsection (1) of this
section.
' (3) The division shall conduct an annual random audit of not
less than seven percent of all hospitals in this state solely to
verify compliance with the requirements of sections 2, 4 and 18
of this 2001 Act. Surveys made by private accrediting
organizations may not be used in lieu of the audit required under
this subsection. The division shall compile and maintain for
public inspection an annual report of the audit conducted under
this subsection.
' (4) The costs of the audit required under subsection (3) of
this section may be paid out of funds from licensing fees paid by
hospitals under ORS 441.020. + }
' { + SECTION 7. + } { + The Health Division shall report to
the Seventy-second Legislative Assembly on whether funds from
licensing fees paid by hospitals under ORS 441.020 are being used
to pay the costs of audits required by section 6 of this 2001
Act. + }
' { + SECTION 8. + } ORS 441.030 is amended to read:
' 441.030. (1) The Health Division or the Senior and Disabled
Services Division of the Department of Human Services, pursuant
to ORS 479.215, shall deny, suspend or revoke a license in any
case where the State Fire Marshal, or the representative of the
State Fire Marshal, certifies that there is a failure to comply
with all applicable laws, lawful ordinances and rules relating to
safety from fire.
' (2) The appropriate division may deny, suspend or revoke a
license in any case where it finds that there has been a
substantial failure to comply with ORS 441.015 to 441.063,
441.085, 441.087, 441.990 (3) or the rules or minimum standards
adopted under those statutes.
' (3) The appropriate division may suspend or revoke a license
issued under ORS 441.025 for failure to comply with a division
order arising from a health care facility's substantial lack of
compliance with the provisions of ORS 441.015 to 441.063, 441.084
to 441.087 and 441.990 (3) { + or section 2 or 4 of this 2001
Act + }, or the rules adopted thereunder, or for failure to pay a
civil penalty imposed under ORS 441.710 { + or section 6 of this
2001 Act + }.
' (4) The Senior and Disabled Services Division may order a
long term care facility licensed under ORS 441.025 to restrict
the admission of patients when the division finds an immediate
threat to patient health and safety arising from failure of the
long term care facility to be in compliance with ORS 441.015 to
441.063, 441.084 to 441.087 and the rules adopted pursuant
thereto.
' (5) Any long term care facility which has been ordered to
restrict the admission of patients pursuant to subsection (4) of
this section shall post a notice of such restriction, provided by
the division, on all doors providing ingress to and egress from
the facility, for the duration of the restriction.
' { + SECTION 9. + } { + As used in sections 9 to 14 of this
2001 Act:
' (1) 'Affiliated hospital' means a hospital that has a
business relationship with another hospital.
' (2) 'Hospital' means:
' (a) An acute inpatient care facility, as defined in ORS
442.470; or
' (b) A hospital as described in ORS 442.015.
' (3) 'Manager' means a person who:
' (a) Has authority to direct and control the work performance
of nursing staff;
' (b) Has authority to take corrective action regarding a
violation of law or a rule or a violation of professional
standards of practice, about which a nursing staff has
complained; or
' (c) Has been designated by a hospital to receive the notice
described in section 10 (2) of this 2001 Act.
' (4) 'Nursing staff' means a registered nurse, a licensed
practical nurse, a nursing assistant or any other assistive
nursing personnel.
' (5) 'Public body' has the meaning given that term in ORS
30.260.
' (6) 'Retaliatory action' means the discharge, suspension,
demotion, harassment, denial of employment or promotion, or
layoff of a nursing staff, or other adverse action taken against
a nursing staff in the terms or conditions of employment of the
nursing staff, as a result of filing a complaint. + }
' { + SECTION 10. + } { + (1) A hospital may not take
retaliatory action against a nursing staff because the nursing
staff:
' (a) Discloses or intends to disclose to a manager, a private
accreditation organization or a public body an activity, policy
or practice of the hospital or of a hospital that the nursing
staff reasonably believes is in violation of law or a rule or is
a violation of professional standards of practice that the
nursing staff reasonably believes poses a risk to the health,
safety or welfare of a patient or the public;
' (b) Provides information to or testifies before a private
accreditation organization or a public body conducting an
investigation, hearing or inquiry into an alleged violation of
law or rule or into an activity, policy or practice that may be
in violation of professional standards of practice by a hospital
that the nursing staff reasonably believes poses a risk to the
health, safety or welfare of a patient or the public;
' (c) Objects to or refuses to participate in any activity,
policy or practice of a hospital that the nursing staff
reasonably believes is in violation of law or rule or is a
violation of professional standards of practice that the nursing
staff reasonably believes poses a risk to the health, safety or
welfare of a patient or the public; or
' (d) Participates in a committee or peer review process or
files a report or a complaint that discusses allegations of
unsafe, dangerous or potentially dangerous care.
' (2) Except as provided in subsection (3) of this section, the
protection against retaliatory action in subsection (1) of this
section does not apply to a nursing staff, unless the nursing
staff, before making a disclosure to a private accreditation
organization or a public body as described in subsection (1)(a)
of this section:
' (a) Gives written notice to a manager of the hospital of the
activity, policy, practice or violation of professional standards
of practice that the nursing staff reasonably believes poses a
risk to public health; and
' (b) Provides the manager a reasonable opportunity to correct
the activity, policy, practice or violation.
' (3) A nursing staff is not required to comply with the
provisions of subsection (2) of this section if the nursing
staff:
' (a) Is reasonably certain that the activity, policy, practice
or violation is known to one or more managers of the hospital or
an affiliated hospital and an emergency situation exists;
' (b) Reasonably fears physical harm as a result of the
disclosure; or
' (c) Makes the disclosure to a private accreditation
organization or a public body for the purpose of providing
evidence of an activity, policy, practice or violation of a
hospital or an affiliated hospital that the nursing staff
reasonably believes is a crime. + }
' { + SECTION 11. + } { + (1) A nursing staff aggrieved by
an act prohibited by section 10 of this 2001 Act may bring an
action in circuit court of the county in which the hospital is
located. All remedies available in a common law tort action are
available to a nursing staff if the nursing staff prevails in an
action brought under this subsection and are in addition to any
remedies provided in subsection (2) of this section.
' (2) In an action brought under subsection (1) of this
section, a circuit court may do any of the following:
' (a) Issue a temporary restraining order or a preliminary or
permanent injunction to restrain a continued violation of section
10 of this 2001 Act.
' (b) Reinstate the nursing staff to the same or equivalent
position that the nursing staff held before the retaliatory
action.
' (c) Reinstate full benefits and seniority rights to the
nursing staff as if the nursing staff had continued in
employment.
' (d) Compensate the nursing staff for lost wages, benefits and
other remuneration, including interest, as if the nursing staff
had continued in employment.
' (e) Order the hospital to pay reasonable litigation costs of
the nursing staff, including reasonable expert witness fees and
reasonable attorney fees.
' (f) Award punitive damages as provided in ORS 18.537.
' (3) Except as provided in subsection (4) of this section, in
any action brought by a nursing staff under subsection (1) of
this section, if the court finds that the nursing staff had no
objectively reasonable basis for asserting the claim, the court
may award costs, expert witness fees and reasonable attorney fees
to the hospital.
' (4) A nursing staff may not be assessed costs or fees under
subsection (3) of this section if, upon exercising reasonable and
diligent efforts after filing the action, the nursing staff moves
to dismiss the action against the hospital after determining that
no issue of law or fact exists that supports the action against
the hospital. + }
' { + SECTION 12. + } { + (1) A hospital that takes any
retaliatory action described in section 10 of this 2001 Act
against a nursing staff commits an unlawful employment practice.
' (2) A nursing staff claiming to be aggrieved by an alleged
violation of section 10 of this 2001 Act may file a complaint
with the Commissioner of the Bureau of Labor and Industries in
the manner provided by ORS 659.040. The commissioner shall
enforce the provisions of section 10 of this 2001 Act in the
manner provided in ORS 659.010 to 659.110 regarding unlawful
employment practices.
' (3) The remedies under this section and section 11 of this
2001 Act are supplemental and not mutually exclusive. + }
' { + SECTION 12a. + } If House Bill 2352 becomes law,
section 12 of this 2001 Act is amended to read:
' { + Sec. 12. + } (1) A hospital that takes any retaliatory
action described in section 10 of this 2001 Act against a nursing
staff commits an unlawful employment practice.
' (2) A nursing staff claiming to be aggrieved by an alleged
violation of section 10 of this 2001 Act may file a complaint
with the Commissioner of the Bureau of Labor and Industries in
the manner provided by { - ORS 659.040. The commissioner shall
enforce the provisions of section 10 of this 2001 Act in the
manner provided in ORS 659.010 to 659.110 regarding unlawful
employment practices. - } { + section 2, chapter ___, Oregon
Laws 2001 (Enrolled House Bill 2352). Except for the provisions
of sections 12, 13, 14 and 15, chapter ___, Oregon Laws 2001
(Enrolled House Bill 2352), violation of section 10 of this 2001
Act is subject to enforcement under sections 1 to 15, chapter
___, Oregon Laws 2001 (Enrolled House Bill 2352).
' (3) Except as provided in subsection (4) of this section, a
civil action under section 11 of this 2001 Act must be commenced
within one year after the occurrence of the unlawful employment
practice unless a complaint has been timely filed under section
2, chapter ___, Oregon Laws 2001 (Enrolled House Bill 2352).
' (4) The nursing staff who has filed a complaint under section
2, chapter ___, Oregon Laws 2001 (Enrolled House Bill 2352), must
commence a civil action under section 11 of this 2001 Act within
90 days after a 90-day notice is mailed to the nursing staff
under this section.
' (5) The commissioner shall issue a 90-day notice to the
nursing staff:
' (a) If the commissioner dismisses the complaint within one
year after the filing of the complaint and the dismissal is for
any reason other than the fact that a civil action has been
filed.
' (b) On or before the one-year anniversary of the filing of
the complaint unless a 90-day notice has previously been issued
under paragraph (a) of this subsection or the matter has been
resolved by the execution of a settlement agreement.
' (6) A 90-day notice under this section must be in writing and
must notify the nursing staff that a civil action against the
hospital under section 11 of this 2001 Act may be filed within 90
days after the date of mailing of the 90-day notice and that any
right to bring a civil action against the hospital under section
11 of this 2001 Act will be lost if the action is not commenced
within 90 days after the date of mailing of the 90-day
notice. + }
' { - (3) - } { + (7) + } The remedies under this section
and section 11 of this 2001 Act are supplemental and not mutually
exclusive.
' { + SECTION 13. + } { + (1) A hospital shall post a notice
summarizing the provisions of sections 2, 4, 5, 10, 11, 12 and 18
of this 2001 Act in a conspicuous place on the premises of the
hospital. The notice must be posted where notices to employees
and applicants for employment are customarily displayed.
' (2) Any hospital that willfully violates this section is
subject to a civil penalty not to exceed $500. Civil penalties
under this section shall be imposed by the Health Division in the
manner provided by ORS 183.090. + }
' { + SECTION 14. + } { + (1) Except as provided in
subsection (2) of this section, nothing in sections 11 and 12 of
this 2001 Act shall be deemed to diminish any rights, privileges
or remedies of a nursing staff under federal or state law or
regulation or under any collective bargaining agreement or
employment contract.
' (2) Sections 11 and 12 of this 2001 Act provide the only
remedies under state law for a nursing staff for an alleged
violation of section 10 of this 2001 Act committed by a
hospital. + }
' { + SECTION 15. + } ORS 659.095 is amended to read:
' 659.095. (1) If, within one year following the filing of a
complaint { - pursuant to - } { + under + } ORS 659.040 (1)
or 659.045 (1) { + or section 12 of this 2001 Act + } except a
complaint alleging violations of ORS 30.670 or 30.685, the
Commissioner of the Bureau of Labor and Industries has been
unable to obtain a conciliation agreement with a respondent, or
has not caused to be prepared and attempted to serve the specific
charges referred to in ORS 659.060 (1), the commissioner shall so
notify the complainant in writing and within 90 days after the
date of mailing of such notice, the complainant may file a civil
suit as provided for in ORS 659.121 { + or section 11 of this
2001 Act + }. Within one year following the filing of the
complaint, the commissioner may issue, or cause to be issued, an
administrative determination. If no administrative determination
has been issued at the end of the one-year period, the
commissioner has no further authority to continue proceedings to
resolve the complaint, except as provided in ORS 659.070 and
659.085. If prior to the expiration of one year from the filing
of a complaint pursuant to this section the commissioner
dismisses the complaint for any reason other than a dismissal
pursuant to ORS 659.060 (3), or the complainant requests the
commissioner to terminate proceedings with respect to the
complaint, the commissioner shall notify the complainant of said
dismissal or termination in writing, and within 90 days after the
date of mailing of such notice of dismissal or termination, a
civil suit may be filed as provided for in ORS 659.121 { + or
section 11 of this 2001 Act + }.
' (2) As used in this section, 'administrative determination '
means a written notice to the respondent and the complainant
signed by the commissioner, or the commissioner's designee, which
includes, but is not limited to, the following information:
' (a) The name of the complainant;
' (b) The name of the respondent;
' (c) Allegations contained in the complaint;
' (d) Facts found by the commissioner to have a bearing on the
allegations contained in the complaint in the course of any
investigation, conference or other information gathering function
of the Bureau of Labor and Industries as such facts relate to
laws within the bureau's jurisdiction; and
' (e) A statement as to whether investigation of the complaint
has disclosed any substantial evidence supporting the allegations
of the complaint.
' { + SECTION 15a. + } { + If House Bill 2352 becomes law,
section 15 of this 2001 Act (amending ORS 659.095) is
repealed. + }
' { + SECTION 16. + } ORS 441.057 is amended to read:
' 441.057. (1) Rules adopted by the Health Division or the
Senior and Disabled Services Division pursuant to ORS 441.055
shall include procedures for the filing of complaints as to the
standard of care in any health care facility and provide for the
confidentiality of the identity of any complainant.
' (2) No health care facility, or person acting in the interest
of the facility, shall take any disciplinary or other adverse
action against any employee who in good faith brings evidence of
inappropriate care or any other violation of law or rules to the
attention of the proper authority solely because of the
employee's action as described in this subsection.
' (3) Any employee who has knowledge of inappropriate care or
any other violation of law or rules shall utilize established
reporting procedures of the health care facility administration
before notifying the Health Division, the Senior and Disabled
Services Division or other state agency of the alleged violation,
unless the employee believes that patient health or safety is in
immediate jeopardy or the employee makes the report to the Health
Division or the Senior and Disabled Services Division under the
confidentiality provisions of subsection (1) of this section.
' (4) The protection of health care facility employees under
subsection (2) of this section shall commence with the reporting
of the alleged violation by the employee to the administration of
the health care facility or to the Health Division, the Senior
and Disabled Services Division or other state agency pursuant to
subsection (3) of this section.
' (5) Any person suffering loss or damage due to any violation
of subsection (2) of this section has a right of action for
damages in addition to other appropriate remedy.
' { + (6) The provisions of this section do not apply to a
nursing staff, as defined in section 9 of this 2001 Act, who
claims to be aggrieved by a violation of section 10 of this 2001
Act committed by a hospital. + }
' { + SECTION 17. + } { + Sections 10, 11 and 12 of this
2001 Act and the amendments to ORS 441.057 and 659.095 by
sections 15 and 16 of this 2001 Act apply only to actions taken
by a nursing staff on or after the effective date of this 2001
Act. + }
' { + SECTION 17a. + } If House Bill 2352 becomes law,
section 17 of this 2001 Act is amended to read:
' { + Sec. 17. + } Sections 10, 11 and 12 of this 2001 Act
and the amendments to ORS 441.057 { - and 659.095 - } by
{ - sections 15 and 16 - } { + section 16 + } of this 2001 Act
apply only to actions taken by a nursing staff on or after the
effective date of this 2001 Act.
' { + SECTION 18. + } { + (1) A hospital, as defined in
section 9 of this 2001 Act, may require a registered nurse who is
receiving full employment benefits from the hospital to provide
notice of any outside employment that may reasonably impede the
ability of the nurse to fulfill the nurse's obligation to the
hospital in providing nursing services to patients under the
hospital's care.
' (2) If a hospital determines that the outside employment
causes a risk to patients receiving services in the hospital, the
hospital may require the nurse to discontinue the outside
employment.
' (3) A hospital may not unreasonably restrict the outside
employment of nurses and may restrict outside employment only if
the hospital provides in writing to the nurse an explanation of
the hospital's documentation that the outside employment creates
a risk to patients in the hospital. A nurse who does not
discontinue outside employment if required by the hospital may be
disciplined or terminated from employment by the hospital.
' (4) A nurse who does not provide notice as required by a
hospital pursuant to this section may be disciplined or
terminated from employment by the hospital if the failure to
provide notice creates a risk to a patient in the hospital. + }
' { + SECTION 19. + } { + This 2001 Act takes effect on
October 1, 2002. + } ' .
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