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June 26, 2024

Nurse Staffing, Regulatory Action, and Financial Restitution

Lessons from New York Hospitals

By Claire Tuck

After the COVID-19 pandemic tore through New York City hospitals in 2020, with multiple cascading waves in 2021 and 2022, registered nurses (RNs) and other caregivers in New York took a hard look at their working conditions and their challenging patient workloads. In nursing school, nurses are taught that their role is to care for and assess the whole patient and advocate for the care that their patients need. In reality, the nurse role has too often been reduced to the performance of tasks such as administering medication and documenting in the electronic medical records. After the worst of the COVID-19 pandemic passed and as hospital census has stabilized, nurses are still all too often expected to care for too many patients and are unable to provide the standard of care they were trained to provide.

Many nurses have experienced “moral injury” due to this fundamental disconnect between their expectations for their profession and the reality of their day-to-day work. In response, many states have enacted laws requiring hospitals to comply with nurse-to-patient ratios, and hospitals have suffered legal consequences where they have failed to staff nurses as required.

Background

Inadequate staffing ratios are a main cause of nurse burnout and have driven nurses away from the bedside and the profession all together. For example, only 48% of currently licensed nurses in New York State are actively working as nurses. When patients face a lack of available nurses, there are significant risks to the quality of care they receive.

Fundamentally, safe nurse staffing means having enough nurses available to meet patients’ needs in each patient care unit. In some states, nurse staffing ratios are mandated by law. While patient acuity and other factors specific to that unit must be considered in setting staffing levels, once those levels are set, it is a simple mathematical calculation to determine how many nurses are necessary to achieve a safe standard of care. For example, if an ICU unit has 18 beds and is typically full, nine RNs must be assigned on a daily basis to meet the ICU ratio of one nurse to two ICU patients. The standard industry replacement rate used is 2.6 full-time equivalent positions (FTEs) to fill each day or night shift slot. In this example, the hospital should have at least 23.4 FTEs budgeted on both the day and night shifts.

To meet safe standards of care, hospitals must not only recruit and retain enough nurses in advance, they must also track daily nurse-to-patient staffing levels and implement basic scheduling practices that provide coverage for nurses to take breaks, go on vacation, or call out sick without putting patient safety at risk. For hospitals that fail to plan ahead and actively monitor nurse staffing, increased regulatory action and concerted action by nurses have led to liability and risk. 

California and Massachusetts Regulatory Action

In 1999, California became the first state in the nation to adopt minimum nurse-to-patient ratios through the California RN Staffing Ratio Law. Pursuant to this law, the California Department of Health Services (DHS) engaged in rulemaking to establish specific minimum ratios for several types of units, including but not limited to ICU, labor and delivery, emergency department, telemetry and medical-surgical units. As of January 1, 2004, California hospitals were required to comply with these ratios. A seminal study conducted six years later showed that if two other states had adopted the California 1:5 ratio for medical-surgical patients, they would have had approximately 10 percent fewer patient deaths.

In 2014, Massachusetts adopted legislation requiring a 1:1 nurse-to-patient ratio in the ICU. ICU nurses may have a two-patient assignment, depending on patient acuity as assessed by the hospital’s patient acuity tool and the staff nurses on the unit. In no circumstances may ICU nurses be assigned a third patient.

New York Regulatory Action

After experiencing unfathomable stress and patient care loads during the COVID-19 pandemic, nurses in New York fought for and won a ground-breaking staffing law. On Jan. 1, 2022, the New York Hospital Clinical Staffing Committee law went into effect. This law requires every hospital in New York State to create a clinical staffing committee consisting of half nurses and other frontline hospital staff and half hospital management. These staffing committees must create staffing plans for nurses and other caregivers, and as of July 1, 2022, hospitals must submit their staffing plans annually to the New York State Department of Health (DOH) and post these plans in each patient care unit. As of Jan. 1, 2023, these plans became enforceable by DOH, which can assess civil penalties for failure to comply. As of July 1, 2023, New York hospitals are required to report actual nurse staffing levels to DOH to be posted publicly on their website and in each patient care unit.

On June 29, 2023, NY DOH adopted a minimum nurse-to-patient ratio of 1:2 for patients requiring “intensive or critical care.” Consequently, it is now against New York State law for hospitals to “triple” nurses, i.e., assign one nurse to three or more critical care patients.

Oregon Regulatory Action

Recently, Oregon also enacted legislation requiring nurse-to-patient ratios for a variety of units as of June 1, 2024. For example, Oregon now requires a minimum ICU ratio of one nurse to two patients and a minimum medical-surgical unit ratio of one nurse to every five patients. Finally, under Oregon law, ratios much be maintained during nurse breaks and hospitals must have a dedicated break nurse to provide breaks. Nurses cannot be required to double-up patient assignments during breaks.

Contractual Enforcement: New York Example

While the enactment of laws mandating nurse staffing ratios is a relatively recent development in most states, unionized nurses at several New York hospitals have had nurse-to-patient ratios and staffing grids in their collective bargaining agreements (CBAs) for decades. Yet, some hospitals have failed to comply with these staffing grids. In January 2023, over 16,000 New York State Nurses Association (NYSNA) nurses at hospitals across New York City demanded stronger staffing enforcement in their CBAs. They fought and won expedited arbitration to enforce their staffing ratios and grids. They also won the ability for arbitrators to take into account their excessive workloads when awarding remedies for staffing violations.

There is growing recognition from neutral parties that a lack of nurses substantially impacts nurses’ workload, and thus, patient care., Over the past year, arbitrators have issued 16 arbitration awards and awarded a total of over $4 million to nurses for violations of their CBAs by New York hospitals. The patient care units addressed ranged from ICU, organ transplant, oncology, labor and delivery, emergency department, and even procedural areas like the post-anesthesia care unit (PACU).

For example, on Feb. 11, 2024, an arbitrator found “persistent and continuous understaffing of the Labor & Delivery unit” at one hospital. The arbitrator found that:

“The under-staffing is readily evident… The understaffing impacts all of the unit’s operations whether in triage, labor and delivery rooms or in recovery areas. Examples provided include shifts where only one (1) nurse is available in triage or in PACU, or where no distinct baby nurse is available at the time a baby is born. Clearly conditions exist on each shift where patient safety can indeed be compromised.”

As a remedy, the arbitrator awarded a total of $957,050.47 in make-whole relief to nurses who worked understaffed shifts. The arbitrator also awarded hiring and “break relief measure to allow for full meal and break periods free from patient assignments on all shifts.”

On Jan. 22, 2024, another arbitrator awarded $23,021.03 in make-whole relief to nurses who were short-staffed in another hospital’s cardiac care stepdown unit and experienced “excessive workloads.” Nurses in this unit consistently protested their assignments to their supervisors, questioning the safety of their patient assignments. The arbitrator relied on these protests as well as nurse testimony to find staffing violations.

In another example involving a cardiac intensive care unit (ICU), the arbitrator cited the lack of a “break RN” as the basis for finding a staffing violation. The arbitrator explained that:

“Witness after witness for the Union credibly testified that a ‘break RN’ has never been designated, scheduled and/or assigned at the unit. Many times, breaks were not at all taken. On those shifts when a break could be taken, it happened because the nurses paired up to watch over and care for each other’s patients.”

This failure to provide real break relief contributed to the arbitrator’s award of $221,192.00 in make-whole relief.

Arbitrators have also considered and rejected arguments from various hospitals that non-compliance with nurse staffing numbers is excusable when nurses call in sick. For example, where a hospital argued that nurse sick days and leaves of absences mitigated its staffing violations, the arbitrator found that [the hospital] “needs to anticipate that employees may call in sick or take personal time off and this possibility needs to be factored into the Hospital’s planned staffing. It cannot be used as an excuse to mitigate under-staffing.” Some hospitals have argued that efforts to recruit additional nurses and improve staffing going forward should excuse past under-staffing. Arbitrators have rejected this argument, finding that typical hospital recruitment activities will not excuse non-compliance. Rather, hospital recruitment of nurses “must be regarded simply as a required, normal and customary activity.”

Risks to Hospitals

With the rise in government regulation and continued organizing and advocacy by nurses on staffing issues, hospitals face increased risk if they fail to prioritize nurse recruitment and retention. Adding positions above and beyond planned FTE positions may be necessary to avoid spiraling into a staffing crisis in difficult-to-staff specialty areas or during patient surges due to infectious diseases. Without detailed advance planning to ensure an adequate number of nurses, hospitals risk increased turnover as nurses burn out and suffer moral injury from untenable workloads. Increased turnover may then lead to even more staffing shortages, with potential negative impact on patient care. Further, there may be liability under both state and federal wage and hour laws if staffing shortages result in a failure to provide nurses with mandated rest or meal periods.

The only way for hospitals to proactively manage their nurse staffing and get ahead of a developing staffing crisis is to track their actual daily nurse staffing. Some hospitals are in the dark about how many patients nurses are actually assigned on a daily basis. To identify a looming staffing crisis and take actions to avert such a crisis, hospitals must be finely attuned to the daily patient workload that their nurses face.

Conclusion

To retain nurses who entered the profession to help patients, hospitals must view nurse staffing as a necessity for quality care. Where nurse staffing has improved, hospitals have been able to provide better patient care and better job satisfaction for nurses. If this can happen across the industry, more nurses will choose to stay and return to the bedside to provide the quality nursing care that they were trained to provide, and hospitals will be able to ensure the highest quality of care for their patienork.

Claire Tuck

New York State Nurses Association, New York, NY

Claire Tuck founded the in-house Legal Department of the New York State Nurses Association eleven years ago. As the Legal Director of NYSNA, Ms. Tuck spends her time advocating for nurses. Previously, she practiced labor and employment law at Cohen, Weiss and Simon LLP, where she litigated on behalf of employees and labor unions. She can be reached at [email protected].

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