More than three years after the COVID-19 pandemic began, many healthcare institutions continue to have difficulty fully staffing all their facilities. In response, both the Oregon and Washington legislatures enacted new laws that will change how hospitals plan for and staff their facilities. While both states will send shockwaves throughout their hospitals, the approaches differ substantially.

Oregon Summary

Governor Tina Kotek signed into law House Bill 2697 on July 31, 2023 (HB 2697). Among other things, this legislation requires the establishment of hospital professional, technical, and service staffing committees and staffing plans, in addition to making changes to the existing nurse staffing committee and staffing plan requirements.

It also specifies procedures for adopting staffing plans and administering the staffing committee meetings. Perhaps most significantly, HB 2697 specifies registered nurse-to-patient ratios (including similar ratios for certified nursing assistants) across various hospital units.

As an example, a registered nurse can be assigned to no more than two patients in an intensive care unit. Additionally, a certified nursing assistant can be assigned to no more than seven patients during a day or evening shift, and no more than 11 patients during a night shift.

There are similar patient caps for labor and delivery units, postpartum units, pediatric units, operating rooms, etc. Notably, a charge nurse may be counted for purposes of meeting the nurse-to-patient ratio during periods that such charge nurse is taking a patient assignment. The table below details the new staffing ratios across various care settings.

Exemptions

On the other hand, psychiatric units, which include inpatient psychiatric units and emergency departments that provide psychiatric emergency services, are not subject to any prescribed nurse-to-patient ratio. Instead, psychiatric units must establish a subcommittee of the hospital nurse staffing committee and adopt an agreed-upon staffing plan just for psychiatric units.

In addition to psychiatric units, there are several other categories of patients who are exempt from the prescribed nurse-to-patient ratios.

• One notable exemption is patients in emergency departments who are in critical condition.
• Another categorical exemption is patients in inpatient units who are ready for discharge but facing a barrier to discharge (i.e., they are unable to go home or there are no available transitional placements).
• Additionally, with the approval of the nurse staffing committee, a hospital unit may deviate from these nurse-to-patient ratios in pursuit of what HB 2697 calls “an innovative care model” by allowing licensed practical nurses and certified nursing assistants to constitute up to 50% of the registered nurses needed to comply with the applicable nurse-to-patient ratio.
• And finally, rural hospitals designated as Type A or Type B hospitals by the Oregon Health Authority (the OHA) may request a two-year variance from these nurse-to-patient ratios.

Notwithstanding these exemptions, deviations, or variances, a hospital must still ensure that any nurse staffing plan is consistent with nationally recognized staffing standards and approved by the nurse staffing committee.

Meal Breaks and Rest Breaks

These staffing requirements have critical implications for rest breaks and meal breaks. Hospitals will be required to provide coverage for a nurse’s patients without violating the staffing ratio for the nurse providing that coverage. Oregon hospitals will need to find new and creative solutions to staff their nurse workforce.

Penalties

Not without teeth, HB 2697 imposes penalties on hospitals found in violation of its mandates.

• For example, hospitals may face up to $200 in civil penalties for each missed meal break or rest break that is reported to the OHA or the Bureau of Labor and Industries.
• For failing to abide by the prescribed nurse-to-patient ratios, hospitals face a warning on their first violation, a $1,750 penalty for their second violation, a $2,500 penalty for their third violation, and a $5,000 penalty for their fourth and every subsequent violation, in each case within a four-year period.
• Notably, each staffing plan violation is considered a separate violation, and there is no cap on the number of times that a penalty may be imposed for a repeat violation. This warning/civil penalties system replaces the triannual compliance audits currently in place.

Implementation Timeline

HB 2697 will be implemented in phases to give various parties time to prepare for the new requirements. The staggered implementation is as follows:

Washington Summary

The Washington legislature also addressed hospital staffing in its last session. The resulting legislation, E2SSB 5236, will also dramatically change how hospitals operationalize staffing requirements in their facilities. It is, however, much less of an exercise of the legislature substituting its judgment on issues of medical care for the judgment of medical professionals.

The bill number gives an indication of the degree to which the Washington legislation represents a series of compromises. The initial “E” means that the second substitute Senate bill was “engrossed,” or amended, on the floor. The “2S” represents that the original bill was extensively revised (in a “substitute” bill) not once but twice from the originally introduced bill. While E2SSB 5236 may be a compromise, it will nonetheless change how Washington hospitals do things.

The bill changes not only the structure and personnel of staffing committees, but also the entire process to prepare staffing plans. Once the new statute is effective, staffing plans must be approved by a majority of the committee, composed of equal numbers of management and clinical staff, and the plans will not be subject to revision by hospital management.

Penalties

Moreover, hospitals that cannot come to an agreement on a new annual staffing plan risk substantial penalties.

• Failure to file the annual staffing plan can result in penalties of $10,000 per month.
• Failures to comply with the staffing plans can result in the imposition of a “corrective action plan” or “CAP.”
• Failures to follow a CAP can lead to fines of $50,000 – again, per month.

The new statute creates an extensive “complaint” process for employees to challenge alleged violations of the staffing plans. In a substantial change from previous practice, many (although not all) of these complaints are to be investigated by the Department of Labor and Industries (L&I), rather than by the Department of Health. The proponents of E2SSB 5236 were explicit, that they believed L&I to be a much more employee-friendly forum.

Meal and Rest Breaks

E2SSB 5236 also mandated changes in how hospitals are to address meal and rest breaks. Previously, nursing staff (and some technical employees) had a unique statutory regimen applicable to their rest breaks: At hospitals, those were the only employees in the entire state who were precluded from taking “intermittent” rest breaks; rather, their breaks had to be “uninterrupted.” The new statute extends that requirement to all non-exempt staff employed in direct patient care or clinical services.

The bill also narrowed the basis on which rest breaks or meal breaks could be interrupted when needed for patient care. The bill creates a reporting requirement regarding rest breaks and meal breaks that are missed. Whenever a hospital’s covered employees miss 20% or more of their breaks, the hospital is subject to penalties of up to $40,000.

The enforcement provisions in the new statute are still subject to negotiation between L&I and the Department of Health, as to how investigations are to be allocated between the two agencies. L&I’s investigations will generally follow the same procedures that had been available under Ch. 49.48 RCW, the Wage Payment Act.

Implementation Timeline

The Washington bill has a more gradual implementation than Oregon’s. The revised hospital staffing committees must be in place by January 1, 2024. Most of the substantive provisions of the bill do not go into effect until July 1, 2024, although some of the penalty provisions will not be effective until 2025, or even 2026.