WSNA is working to improve enforcement of the Nurse Staffing Law

In 2017, the Washington State Legislature passed House Bill 1714, adding more structure and oversight to the Nurse Staffing Law. The bill included a requirement for the Washington State Department of Health (DOH) to submit a report to the legislature on Dec. 31, 2020. WSNA, along with SEIU Healthcare 1199NW and UFCW 21, has been working to ensure that the report addresses key concerns from nurses about staffing committees and hospital compliance with the law.

Our experiences over the past two years have illustrated deficiencies in enforcement of the law, and WSNA has filed 22 complaints with the DOH. We couldn’t have done it without the Assignment Despite Objection (ADO) forms our members filed to call out problems in their facilities.

Under the 2017 law, hospitals are required to submit annual nurse staffing plans (and any intermediary plan updates) to the DOH. Changes to the law in 2017 also established a structure for nurses and others to bring complaints to the Nurse Staffing Committee; Nurse Staffing Committees must review all submitted complaints and associated data to determine if those complaints are resolved or dismissed on unsubstantiated data.

The report to the legislature required by law must include:

• The number of nurse staffing complaints submitted to the department.
• The disposition of these complaints.
• The number of investigations conducted.
• The associated costs for complaint investigations.
• Recommendations for any needed statutory changes.

The Nurse Staffing Law also required DOH convene a stakeholder group prior to the submission of the report and named the participants of that group as WSNA, the Washington State Hospital Association, SEIU Healthcare 1199NW and UFCW 21.

This stakeholder group met several times between August and October 2020. Each organization, including DOH, discussed their experiences with the law and identified areas for improvement. W

The group of stakeholders was able to reach agreement on two recommendations:

Stakeholder group recommendations

Nurse Staffing Committee charters

WSNA and the other health care unions expressed concern that many Nurse Staffing Committees are not meeting often enough to review complaints in a timely manner. The DOH report notes that when Nurse Staffing Committees review complaints, many “are not creating, retaining, and making available documentation of their decisions.”

All stakeholders recommended that Nurse Staffing Committees develop and adopt charters, defining the process they will use to review complaints and document decisions. The report also contains a number of bullet points outlining elements that Nurse Staffing Committee charters should include – such as a schedule for regular meetings and standards for committee approval of meeting documentation.

Investigations of complaints of retaliation

As noted in the DOH report, the Nurse Staffing Law “prohibits a hospital from retaliating against or engaging in any form of intimidation of employees performing duties or responsibilities in connection with the [Nurse Staffing Committee] or an employee, patient, or other individual who notifies the NSC or hospital administration of their concerns on nurse staffing.”

However, because the law is silent regarding DOH’s role in investigations of retaliation complaints, DOH does not believe it has statutory authority to investigate this category of complaint. Instead, DOH sites another statute, RCW 43.70.075, which says that “a whistleblower employee who experiences retaliatory action by their employer after filing a complaint to the department about improper quality of care by a health care provider or facility may file a complaint with the Human Rights Commission.” Because it is also unclear if this applies to whistleblowers experiencing retaliation over the filing of a nurse staffing complaint, DOH is further exploring this issue with the Human Rights Commission.

Additionally, each organization was allowed to submit additional recommendations for the report’s appendix. WSNA, SEIU Healthcare 1199NW and UFCW 21 jointly submitted the following recommendations:

WSNA, SEIU Healthcare 1199NW, UFCW21 recommendations

Hospital staffing plans — annual submission

As the DOH report indicates, 16 of the filed complaints were for hospitals’ failure to submit an annual staffing plan to DOH as required by law. During the stakeholder meetings, there was largely agreement that the submission of a hospital staffing plan should be a binary – it either was or was not submitted. This was an area where all stakeholders seemed to agree that the investigatory cost to DOH could be reduced if the department simply flagged those hospitals that did not submit and automatically generated a letter triggering the 45-day period to correct this non-compliance.

DOH indicated that they believed that a complaint must be filed with the department to trigger an investigation into whether a hospital submitted its annual nurse staffing plan. The nursing unions recommend that DOH be responsible for determining whether hospital staffing plans are submitted by the deadline.

We further recommend that there be a standard template for hospitals to use when submitting their staffing plans to DOH. Currently, some hospitals submit very detailed staffing plans that range from 50-100 pages, while other hospitals submit a single page of indecipherable matrices. These plans would greatly benefit from some level of standardization with an agreement on common language.

After this law passed, we were committed to successfully working with WSHA to develop a suite of templates and materials for nurse staffing committees. However, there was a lack of follow through by the hospitals to use the collaboratively designed materials. With the range in quality of submitted plans, we recommend that DOH be responsible for assessing the basic quality of the submitted plans. This includes evaluating if the plan includes the elements as outlined in the nurse staffing law. It would also include evaluating whether the plans are legible or decipherable. In these obvious and extreme cases, DOH should provide some level of quality assurance.

“Continuing pattern”

The nurse staffing law states that DOH “may only investigate a complaint under this subsection after making an assessment that the submitted evidence indicates a continuing pattern of unresolved violations of RCW 70.41.420, that were submitted to the nurse staffing committee excluding complaints determined by the nurse staffing committee to be resolved or dismissed. The submitted evidence must include the aggregate data contained in the complaints submitted to the hospital’s nurse staffing committee that indicate a continuing pattern of unresolved violations for a minimum sixty-day continuous period leading up to receipt of the complaint by the department.”

WSHA recommended defining a “continuing pattern” of unresolved complaints to mean only complaints “of a similar nature.” However, that phrase is too limiting and we recommend that this language should stand as currently written. We have seen situations arise in which a “continuing pattern of unresolved” complaints may have multiple meanings:

Complaints unilaterally prevented from reaching the staffing committee: We have seen situations where the manager of a certain unit within the hospital does not allow complaints in that unit to reach the nurse staffing committee — instead, unilaterally deciding to “resolve” those complaints at the unit level. These actions are inconsistent with the intent and purpose of the nurse staffing law and the complaints that never reach the staffing committee would constitute a “continuing pattern of unresolved” complaints by virtue of those complaints never having the opportunity to be resolved by the nurse staffing committee. Those individual complaints may or may not be about the same particular staffing issue.

The nurse staffing committee may not be meeting regularly and therefore may not be reviewing and resolving complaints in a timely manner. In this case, the complaints may or may not be “of a similar nature”, but there may be a “continuing pattern of unresolved” complaints in units across the hospital because the staffing committee is not meeting to resolve these complaints. In this case, it would be appropriate to file a complaint with DOH because the nurse staffing committee is not meeting its function to review and resolve or dismiss complaints.

Open meetings

The nursing unions jointly recommend that a critical clarification in the nurse staffing law is that nurse staffing committee meetings are open unless in executive session. The statute says the committee shall “Review, assess, and respond to staffing variations or concerns presented to the committee.” It further says a hospital may not retaliate against “An employee, patient, or other individual who notifies the nurse staffing committee or the hospital administration of his or her concerns on nurse staffing.”

Under this reading and without any statutory revocation of the ability of employees, patients, or other individuals to submit complaints, the plain reading of the text is that concerns based on staffing can be submitted and shall be reviewed, assessed and responded to by the committee.

It follows that these committees should be open so that concerned parties — be they employees, patients, or other individuals — can attend. Attendance is distinct from participation — the minimal standard for participation is set in statute, and we agree that any additional participation beyond those named would be at the discretion of the individual nurse staffing committee. We recommend that the nurse staffing committee charter include these guidelines, as well as guidelines for potential executive sessions should they be needed (in our experience, this has not been the case).

While WSHA seeks to limit the nurse staffing committee review of complaints to only those filed by nurses, our read is that the nurse staffing committee has a duty to look at all complaints. The law states: “Each hospital shall post, in a public area on each patient care unit, the nurse staffing plan and the nurse staffing schedule for that shift on that unit, as well as the relevant clinical staffing for that shift. The staffing plan and current staffing levels must also be made available to patients and visitors upon request.” Because the posting of the staffing levels is public information, it logically follows that any member of the public should be able to file a complaint with the nurse staffing committee. In a meeting between DOH and the nursing unions in September 2019, DOH reiterated that it would accept nurse staffing complaints from anyone and in any form.

Given the fact that the broader categories of employees, patients, and other individuals can submit nurse staffing concerns, open attendance would be desirable and healthy. In many successful staffing committees today, our staff attend to support our members who serve on nurse staffing committees. Open meetings are a basic measure of collaboration and transparency — two goals all stakeholders agreed are essential for success under this model.

“Unforeseeable emergent circumstances”

The nurse staffing law states: “The department may not investigate a complaint under this subsection in the event of unforeseeable emergency circumstances.” It goes on to define “unforeseeable emergency circumstances” as:

• Any unforeseen national, state, or municipal emergency;
• When a hospital disaster plan is activated;
• Any unforeseen disaster or other catastrophic event that substantially affects or increases the need for health care services; or
• When a hospital is diverting patients to another hospital or hospitals for treatment or the hospital is receiving patients who are from another hospital or hospitals.

Due to the ongoing state of emergency related to the COVID-19 pandemic, some hospitals are not following the nurse staffing law. However, we moved from “unforeseeable” conditions early in the pandemic to a “foreseeable” state of emergency. The current situation has created a loophole for hospitals to abdicate their responsibility for following these laws. Because of this, we recommend that “unforeseeable” as relevant to “emergent circumstances” should be defined in WAC as it is elsewhere in code. We recommend using the following definition that already exists in WAC:

Definition — Unforeseen. As used in this chapter, “unforeseen” means the extent that a reasonably prudent person could not have anticipated. Citation: https://apps.leg.wa.gov/WAC/de...