New Rules Allow MOT Only in Rare Circumstances Following Disasters
The Massachusetts Health Policy Commission has completed long-awaited guidelines for a key provision of a recently enacted law to ban the dangerous practice of mandatory overtime for nurses in acute care hospitals. On June 19, the Commission approved the new guidelines, which define what constitutes an emergency situation for purposes of allowing mandatory overtime.
On August 6, 2012 Governor Deval Patrick signed into law a health care payment reform bill that includes a ban on mandatory overtime proposed by the MNA/NNU. This measure, which was enacted on Nov. 5, 2012, prohibits a hospital from requiring a nurse to work mandatory overtime except in the case of an emergency situation where the safety of the patient requires its use and when there is no reasonable alternative. When RNs and other health care professionals are forced to work excessive hours, mistakes, errors and patient complications become more likely. This harms patients and drives up costs associated with preventable medial errors and complications. This measure would put an end to it.
Consistent with the MNA/NNU and the legislature’s intent with the passage of the mandatory overtime law, the Health Policy Commission made clear in its statement of goals for the emergency guidelines that the law and the new guidelines “prohibit the use of mandatory overtime as a staffing strategy.”
MNA/NNU members and staff played a key role in the formulation of the guidelines with members testifying at two public hearings held by the Commission, while MNA leaders and staff held meetings with the executive director of the Commission to ensure that the new guidelines provided a very tight definition of emergency to prevent the industry from exploiting the new rules.
The guidelines achieve the MNA/NNU goal by allowing administrators to use mandatory overtime only in rare and specific circumstances, including cases of municipal, state or national emergencies; in the wake of major catastrophic events, such as the Marathon bombing, major storm or act of terrorism; or a major internal hospital disaster, such as a power outage, riot or building collapse. The guidelines clearly prohibit declaration of an emergency due to day-to-day hospital operations of a hospital and prohibit mandatory overtime as a result of understaffing of nurses, sick calls, the flu season and leaves of absence. The guidelines also require hospitals to provide reasonable alternatives to the use of mandatory overtime by utilizing float pools, per diems, and the posting of full schedules up to four weeks out. Finally, the guidelines provide for ongoing monitoring of the industry’s compliance with the new rules, and the opportunity to revisit the guidelines if they are being abused.
“We thank the Commission for their work to ensure that this new law fulfills its objective, which is to ensure patients are cared for by well rested nurses, and to prevent the hospital from using forced overtime as an alternative to providing safe RN staffing,” said Donna Kelly-Williams, RN, president of the MNA/NNU. “We will be sharing these guidelines with the nursing community and will encourage nurses to become familiar with them, as well as to report any violations of the new law to the DPH. We will also continue to encourage nurses to report violations of the law to the MNA on our web site at www.massnurses.org. The full text of the guidelines can be found below. If members have specific questions about them, they can email dschildmeier@mnarn.org.
Health Policy Commission
Guidelines for Determining What Constitutes an “Emergency Situation”
An emergency situation for the purposes of allowing mandatory overtime under Section 226 means an unforeseen event that could not be prudently planned for or anticipated by a hospital and affects patient safety in the hospital and where there is a:
· Government declaration or emergency
· Catastrophic event
· Hospital emergency
Mandatory overtime shall not be ordered in the case of an emergency situation where there is a reasonable alternative to such overtime.
Where an unexpected vacancy occurs despite a hospital’s implementation of a reasonable alternative, the hospital is required to exercise a good faith effort to fill the shift on a voluntary basis.
A determination that an emergency situation that affects patient safety in the hospital exists shall be made by the hospital’s chief executive officer or a specific senior management designee and must be reasonable under the circumstances.
Emergency Situation Definition
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Government declaration of emergency
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· A federal, state, municipal or local declaration of emergency that takes effect pursuant to applicable federal or state law.
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Catastrophic
event
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· An unforeseen event that substantially affects or increases the need for health care services, such as a natural disaster, an act of terrorism, or an extended power outage.
· Examples of catastrophic events include but are not limited to, events involving numerous serious injuries (e.g., fires, multiple automobile accidents, a building collapse), a chemical spill, widespread outbreak of disease or illness requiring emergency treatment or hospitalization for many in the hospital’s service area.
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Hospital
emergency
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· A situation internal to the hospital that is unforeseen and could not be prudently planned for or anticipated by the hospital, and that substantially affects the delivery of medical care or increases the need for health care services.
· Examples of hospital emergencies may include, but are not limited to, a riot or other disturbance within the hospital, an extended power outage, system failure or other unexpected occurrence that impacts care delivery or compromises patient safety. A hospital emergency may include an ongoing medical or surgical procedure in which a nurse is actively engaged and where that particular nurse’s continued presence beyond the end of a scheduled shift was unforeseen and necessary to ensure the health and safety of the patient.
· Shall not include a situation that is the result of routine staffing needs caused by typical staffing patterns, expected levels of absenteeism, or time off typically approved by the hospital for vacation, holidays, sick leave, and personal leave.
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Definition of what constitutes a “reasonable alternative” and “good faith effort” to avoid assigning mandatory overtime
Examples include:
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Reasonable
alternative
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· Maintaining a “float pool”
· Creating and posting any work schedules with minimal staffing gaps at least four weeks in advance of scheduled shifts for the purpose of filling any vacant shifts.
· Taking action to fill any remaining vacancies before such shifts occur
· Establishing an “availability list” or “on-call” list of nurses who may be available to volunteer for unexpected vacancies.
· Convening daily pre-shift huddles to determine patient placement and staffing requirements.
· Ensuring the hospital’s “emergency operations plan” or “disaster plan” provides for staffing assignments during an emergency situation.
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Good faith
effort
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· Reaching out to all available qualified staff who are working at the time of the emergency situation.
· Contacting qualified employees who have made themselves available to work extra time.
· Seeking the use of off-duty, per diem, and part-time nurses.
· Seeking personnel from a contracted temporary agency when such staff is permitted by law or regulation.
· Determining whether coverage is available from other units in the hospital.
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Ongoing monitoring of implementation by HPC
Section 226 requires hospitals to report all incidences of mandatory overtime under the laws to the Department of Public Health.
To review and monitor the implementation of and hospital compliance with these guidelines and procedures, the Commission shall review reports submitted to the Department of Public Health pursuant to M.G.L.c 111, section 226 about the instances of overtime for nurses mandated by Massachusetts hospitals and shall determine whether changes should be made to the guidelines in accordance with the purposes of the law.
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