January 09, 2004

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Publication Date: Friday, January 09, 2004

Hospital group sues to block new state nursing-ratio law

The California Healthcare Association has filed a suit to block the state Department of Health Services from enforcing its new law that increases staffing requirements for nurses at all California hospitals.

State officials said the new regulations, which took effect Jan. 1, will require 5,000 new nurses in addition to the 264,000 that now work in California hospitals.

Officials at San Ramon Regional Medical Center said the law will add nearly $1 million to its labor in costs this year, and even more in subsequent years as more staff regulations kick in. Both ValleyCare Medical Center in Pleasanton and Kaiser Permanente are also affected by the new law and have added nurses to comply with the measure.

The lawsuit, filed in Sacramento County Superior Court, specifically asks the court to prohibit the state from enforcing its mandate that hospitals maintain specific ratios of nurses to patients "at all times." The first state regulation of its kind in the country, the law prevents hospitals from moving nurses from one section to another as patient demand calls for it. Until the law is remedied, the Healthcare Association's President Duane Dauner urged hospitals to comply, even "if it means shutting down the emergency room, closing units or canceling surgery."

Pam Pshea, Chief Nursing Officer at San Ramon Regional, said the new regulations have significantly increased the nurse-patient ratio at a time when a flu epidemic and a statewide nursing shortage are already straining resources and hospital budgets.

"We estimate that it will cost San Ramon Regional $850,000 to comply with the new law," added Kim Burch, the San Ramon facility's associate administrator for business development. "Most of these additional new costs result from our requirement now to maintain the same nursing to patient ratios at all times."

In a conference call with the Weekly and representatives of San Ramon Regional and others, Jan Emerson of the California Healthcare Association said the new law tightens ratios in hospital specialty units and mandates the same around-the-clock ratios that hospitals have maintained only for their busier daytime shifts.

"California now becomes the first state in the nation to mandate nursing-patient ratios," Emerson said. "We agree that more nurses are good for patient care, but no studies have shown what those ratios should be. There's nothing to show, as the new California law requires, that a 1-to-4 ratio in the emergency room or a 1-to-6 ratio in general care are the right ratios. Those hospitals should be able to make this decision based on their experience and needs."

Emerson said the association was surprised by the new ratios for telemetry, step down and specialty units, and was not aware until recently that lower ratios are being discussed for 2008. Even more problematic, she said, is the increased pressure the tougher ratios will place on the state's severe nursing shortage.

"We don't know where the nurses will come from," Emerson said. "California ranks 49th out of the 50 states in the number of nurses on a per capita basis. We have 275,000 nurses in California who have active licenses. Of these, 87 percent are currently working in nursing jobs."

"It may be true as the nurses' labor unions contend that only 60 percent of these licensed nurses are working in hospitals, but the fact is that the remaining 27 percent are working in outpatient surgery centers, home health agencies, clinics and doctors' offices," she added. "To say that 40 percent of licensed nurses are out there waiting to come back to hospitals is just not true. So unfortunately, no matter how you want to cut it, there are simply not enough nurses in California to meet our growing population let alone the implementation of these new ratios."

But Kay McVay, president of the California Nurses Association, which backed AB 394 that passed the State Assembly in 1999, praised the new law as a significant step toward improving patient care. CNA represents 50,000 nurses and has been pushing for statewide staffing ratios for 10 years.

"The finish line is finally here," McVay said. "Every patient should be able to demand and count on receiving the registered nursing care they need, and when they need it."

Emerson of the Healthcare Association, said the most difficult provision in the new law that hospitals will have trouble meeting requires staffing at the now-state-mandated ratios 24 hours a day, every day.

"So that means when a nurse goes on a break or goes to dinner or even takes a few minutes to go to the restroom, hospitals now have to have another nurse who is trained and qualified in the care of patients in that unit to fill in," Emerson said. "That applies to every shift in every unit every day. No exceptions are allowed. That's an impossible mandate for hospitals to meet. I don't know how any business in this state or country would be able to meet this kind of a regulation."

San Ramon Regional's Pshea and Burch said the hospital was in full compliance with the new regulations on New Year's Day, when they took effect. In recent months, the hospital has hired 46 new registered nurses and will have hired 11 licensed vocational nurses by next week to make sure the new ratios are met at all times.

The San Ramon hospital, which opened 13 years ago, now has 123 patient beds, making it a mid-size hospital. With total employment of 700, the hospital has 238 registered nurses, plus the 11 LVNs it has just hired.

Pshea added: "We have always delivered a high quality of patient care at San Ramon. But we also have staffed our units based on need. These needs typically go down at the end of the day when fewer patient procedures are being done and doctors' orders have been filled. Also, we have always been able to move nurses from one unit to another as our patient needs changed. Now we won't be able to have that flexibility."

She said that the nurse-patient ratio at San Ramon has typically been 1-5 on the day shift, 1-6 or 1-8 on the late afternoon and early evening shift, and 1-8 overnight. The new law mandates a 1-6 ratio at all hours.

Ratios of as much as 1-1 in critical care and 1-2, 1-3 and 1-4 in emergency rooms and surgical center are largely unchanged, although here again, as Emerson pointed out, hospitals up to Jan. 1 always had the flexibility to move nurses to units where they were needed.

The new law also requires that a nurse be assigned to a hospital's base station radio unit around the clock to respond to calls from paramedics during emergencies.

"That might make sense for very busy medical centers such as at the very large hospitals operated by UCLA or UCSF," Emerson said. "But at many other hospitals, there may be only one or two calls during an entire shift. To require these smaller hospitals to have a nurse assigned to that radio at all times doesn't make sense."

To make sure it is in compliance with the new law, San Ramon's nursing chief Pshea said the hospital will exceed the staffing ratios at the start of every shift.

"So we will be providing a higher nurse-patient ratio at the beginning of each shift so that as we go through the shift, if we have new patient admissions, we can continue to accept them and maintain the ratio required," she explained. "Because if you start with a 1-6 ratio and then have more patients come in, under the new law we could not legally accept more patients."

"By the very nature of our business, we continuously have unexpected admissions and emergencies," Pshea added. "That's what makes this new law such a challenge. It particularly affects hospital emergency rooms because we don't have scheduled emergencies."

At ValleyCare Medical Center, Kathy Campbell, Director of Marketing, Public Relations and Managed Care, said ValleyCare is now in full compliance of the new law.

"Obviously it is hard to do this because of the shortage of nurses," Campbell said. "Our new nursing program at Las Positas College will help. We have 10 students going through the program that started last August. They are doing some of the clinical work in our skilled nursing and rehab center in Livermore now. Hopefully they will opt to take nursing jobs at ValleyCare when they complete their training."

The California Healthcare Association complained about the new law when it was first introduced, but was unsuccessful in getting Gov. Arnold Schwarzenegger to delay its implementation after he took office.

In an interview with the Sacramento Business Journal, Dauner said his association had hoped that when the new administration came in, it would be a little more responsive to the problem. Talks continued until the state issued a memo Dec. 24 to clarify that compliance must be around the clock, with no exceptions.

"We had no choice" except to sue, he told the Journal.

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