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WSNA is working to improve enforcement of the Nurse Staffing Law


This story was published in the Winter 2021 issue of The Washington Nurse magazine.


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 #

Since 2019, WSNA has filed 22 complaints with the Washington State Department of Health for hospitals’ failure to follow aspects of the Nurse Staffing Law.

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.

In late 2020, WSNA was part of a stakeholder work group convened by the Washington State Department of Health (DOH) to make Nurse Staffing Law recommendations to the legislature. In a December 2020 report to the legislature, DOH will recommend that Nurse Staffing Committees be required to have charters and that complaints of retaliation potentially be referred to a different agency. WSNA and the other nursing unions made several additional recommendations that will be included in the report’s appendix.

“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.

ADOs filed by WSNA members provided critical evidence of ongoing staffing issues and are crucial to substantiating the complaints WSNA filed with DOH.

“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…

WSNA Staffing Complaints #

In Fall 2019, WSNA conducted an audit of staffing plans submitted to DOH by its repre­sented facil­i­ties and discov­ered a wide variance in compli­ance levels. While some hospi­tals submitted robust staffing plans, other facil­i­ties failed to submit any plan at all. Sixteen complaints received by DOH ​“alleged that the hospital failed to submit a nurse staffing plan to the depart­ment in the required timeframe or failed to submit updates.”

Throughout 2019 and 2020, WSNA worked with nurses serving on Nurse Staffing Commit­tees to identify where there were problems — such as numerous complaints in a certain unit of the hospital that remained unresolved by the Nurse Staffing Committee months after being submitted. ADOs filed by WSNA members provided critical evidence of ongoing staffing issues.

The DOH report to the legis­la­ture includes a summary of complaints and investigations:

Complaints received

31

Complaints closed
without investigation

6

Complaints autho­rized
for investigation

25

Open inves­ti­ga­tions

24

Closed inves­ti­ga­tions

1

WSNA submitted 22 of the 31 complaints received — some issued jointly with other facil­i­ties and some issued separately. The facil­i­ties named in the complaints include:

  • Virginia Mason Medical Center (2)
  • Peace­Health St. John Medical Center (1)
  • CHI Franciscan St. Joseph Medical Center (3)
  • Skyline Hospital (1)
  • Univer­sity of Washington Medical Center (1)
  • St. Clare Hospital (1)
  • Peace­Health St. Joseph Medical Center (1)
  • Kindred Hospital Seattle — First Hill (2)
  • Whidbey General (1)
  • Cascade Medical Center (1)
  • Kadlec Regional Medical Center (1)
  • Astria Sunny­side Hospital (2)
  • Multi­Care Good Samar­itan Hospital (1)
  • Skagit Regional Medical Center (1)
  • Peace­Health United General Medical Center (3)
  • Multi­Care Tacoma General Hospital (1)

Most of those complaints remain open inves­ti­ga­tions as of December 2020. That is because DOH stopped all inves­ti­ga­tory work to reallo­cate staff to COVID-19 response during the early months of the pandemic. DOH began inves­ti­ga­tions again in July 2020.

WSNA’s priorities for the 2021 Legislative Session

Your voice is more essential than ever

The legislative session may look different this year, but one thing will remain the same: Your voice is essential to the process! Nurses are the most trusted profession, and your voice carries much credibility and weight with lawmakers.