ENGROSSED SECOND SUBSTITUTE SENATE BILL 5236

BySenate Ways & Means (originally sponsored by Senators Robinson, Keiser, Conway, Frame, Hunt, Kauffman, Lovelett, Nguyen, Nobles, Pedersen, Shewmake, Stanford, Trudeau, Valdez, and C. Wilson)

AN ACT Relating to improving workplace standards for certain hospital staff by expanding staffing committees to include additional nursing staff, modifying staffing committee requirements, and clarifying standards and enforcement regarding mandatory overtime and uninterrupted meal and rest breaks; amending RCW 70.41.410, 70.41.420, 70.41.425, 70.41.130, 49.12.480, 49.28.140, and 49.28.150; adding a new section to chapter 43.70 RCW; adding a new section to chapter 70.41 RCW; adding new sections to chapter 49.12 RCW; creating a new section; repealing 2017 c 249 s 4 (uncodified); prescribing penalties; providing effective dates; providing an expiration date; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1. A new section is added to chapter 43.70 RCW to read as follows:

(1) The department, in consultation with the department of labor and industries, must establish an advisory committee on hospital staffing by September 1, 2023.

(2) Appointments to the advisory committee on hospital staffing shall be jointly made by the secretary and the director of labor and industries. Members of the committee must have expertise in hospital staffing and working conditions and should reflect a diversity of hospital settings.

(3) The advisory committee membership includes:

(a) Six members representing hospitals and hospital systems and their alternates, selected from a list of nominees submitted by the Washington state hospital association; and

(b) Six members representing frontline hospital patient care staff and their alternates, selected from a list of nominees submitted by collective bargaining representatives of frontline hospital nursing staff.

(4) Any list submitted to the departments for the initial appointment under this section must be provided by August 4, 2023.

(5) If any member of the advisory committee is unable to continue to serve on the committee the secretary and the director of labor and industries shall select a new member based on the recommendations of either the hospital association for members appointed under subsection (3)(a) of this section or the collective bargaining representative for members appointed under subsection (3)(b) of this section.

(6) The advisory committee on hospital staffing shall meet at least once per month until the hospital staffing plan uniform form is developed.

(7) The advisory committee on hospital staffing shall advise the department on its development of the uniform hospital staffing plan form.

(8) The department and the department of labor and industries shall provide any necessary documentation to the advisory committee on hospital staffing in advance of the meetings to discuss technical assistance so that the advisory committee may consider areas of needed information.

(9) The advisory committee on hospital staffing must consider innovative hospital staffing and care delivery models, such as those that integrate on-site team-based care delivery, use of patient monitoring equipment and technology, and virtual or remote care delivery. This includes identifying and analyzing innovative hospital staffing and care delivery models including those explored by national organizations and evaluating feasibility of broad-based implementation of identified models. The advisory committee may consider disseminating this information and analysis.

(10) The department and the department of labor and industries must provide the advisory committee on hospital staffing with data on a quarterly basis related to compliance with this chapter, complaint filing and disposition trends, and notification of corrective plans of action plans and adherence to those plans.

(11) By December 1, 2023, the Washington state hospital association shall survey hospitals in Washington state and report to the advisory committee on hospital staffing on Washington hospitals' existing use of innovative hospital staffing and care delivery models including, but not limited to, integration of patient monitoring equipment, remote patient monitoring, team-based care models, apprenticeship and career ladder programs, and virtual or remote care delivery models, and any challenges with implementing the models.

(12) By December 1, 2024, the advisory committee on hospital staffing must review the report prepared by the Washington state institute for public policy as required by section 15 of this act.

(13) After January 1, 2027, when the forms are developed and effective, the advisory committee on hospital staffing may meet if it is determined by the department of health and committee members that such meetings are necessary.

(14) No earlier than July 1, 2029, the advisory committee on hospital staffing must discuss the issues related to applicability of RCW 70.41.420(7)(b) (i) and (ii) for hospitals listed under RCW 70.41.420(7)(b)(iv). This must include possible data collection options, potential costs, sources of funding, and implementation timeline.

(15) The advisory committee on hospital staffing must advise the department of labor and industries on the department's development by March 1, 2024, of a uniform form for reporting under RCW 49.12.480(2).

(16) This section expires July 1, 2030.

Sec. 2. RCW 70.41.410 and 2008 c 47 s 2 are each amended to read as follows:

The definitions in this section apply throughout this section ((and)), RCW 70.41.420, and 70.41.425 unless the context clearly requires otherwise.

(1) "Hospital" has the same meaning as defined in RCW 70.41.020, and also includes state hospitals as defined in RCW 72.23.010.

(2) "Hospital staffing committee" means the committee established by a hospital under RCW 70.41.420.

(3) "Intensity" means the level of patient need for nursing care, as determined by the nursing assessment.

(((3)))(4) "Nursing assistant-certified" means an individual certified under chapter 18.88A RCW who provides direct care to patients.

(5) "Nursing ((personnel))staff" means registered nurses, licensed practical nurses, nursing assistants-certified, and unlicensed assistive nursing personnel providing direct patient care.

(((4) "Nurse staffing committee" means the committee established by a hospital under RCW 70.41.420.

(5)))(6) "Patient care staff" means a person who is providing direct care or supportive services to patients but who is not:

(7) "Patient care unit" means any unit or area of the hospital that provides patient care by registered nurses.

(((6)))(8) "Reasonable efforts" means that the employer exhausts and documents all of the following but is unable to obtain staffing coverage:

(10) "Skill mix" means the experience of, and number and relative percentages of ((registered nurses, licensed practical nurses, and unlicensed assistive personnel among the total number of nursing personnel)), nursing and patient care staff.

Sec. 3. RCW 70.41.420 and 2017 c 249 s 2 are each amended to read as follows:

(1) By ((September))January 1, ((2008))2024, each hospital shall establish a ((nurse))hospital staffing committee, either by creating a new committee or assigning the functions of ((a))the hospital staffing committee to an existing nurse staffing committee ((to an existing committee)).

(a) At least ((one-half))50 percent of the voting members of the ((nurse))hospital staffing committee shall be ((registered nurses))nursing staff, who are nonsupervisory and nonmanagerial, currently providing direct patient care ((and up to one-half of the members shall be determined by the hospital administration)). The selection of the ((registered nurses providing direct patient care))nursing staff shall be according to the collective bargaining ((agreement))representative or representatives if there is one ((in effect))or more at the hospital. If there is no ((applicable)) collective bargaining ((agreement))representative, the members of the ((nurse))hospital staffing committee who are ((registered nurses))nursing staff providing direct patient care shall be selected by their peers.

(((2)))(b) 50 percent of the members of the hospital staffing committee shall be determined by the hospital administration and shall include but not be limited to the chief financial officer, the chief nursing officers, and patient care unit directors or managers or their designees.

(3) Participation in the ((nurse))hospital staffing committee by a hospital employee shall be on scheduled work time and compensated at the appropriate rate of pay. ((Nurse))Hospital staffing committee members shall be relieved of all other work duties during meetings of the committee. Additional staffing relief must be provided if necessary to ensure committee members are able to attend hospital staffing committee meetings.

(((3)))(4) Primary responsibilities of the ((nurse))hospital staffing committee shall include:

(a) Development and oversight of an annual patient care unit and shift-based ((nurse))hospital staffing plan, based on the needs of patients, to be used as the primary component of the staffing budget. The hospital staffing committee shall use a uniform format or form, created by the department in consultation with the advisory committee established in section 1 of this act and the department of labor and industries, for complying with the requirement to submit the annual staffing plan. The uniform format or form must allow for variations in service offerings, facility design, and other differences between hospitals, but must allow patients and the public to clearly understand and compare staffing plans. Hospitals may include a description of additional resources available to support unit-level patient care and a description of the hospital, including the size and type of facility. Factors to be considered in the development of the plan should include, but are not limited to:

(i) Census, including total numbers of patients on the unit on each shift and activity such as patient discharges, admissions, and transfers;

(ii) ((Level of intensity of all patients and nature of the))Patient acuity level, intensity of care needs, and the type of care to be delivered on each shift;

(iii) Skill mix;

(iv) Level of experience and specialty certification or training of nursing ((personnel))and patient care staff providing care;

(v) The need for specialized or intensive equipment;

(vi) The architecture and geography of the patient care unit, including but not limited to placement of patient rooms, treatment areas, nursing stations, medication preparation areas, and equipment;

(vii) Staffing guidelines adopted or published by national nursing professional associations, specialty nursing organizations, and other health professional organizations;

(viii) Availability of other personnel and patient care staff supporting nursing services on the unit; and

(ix) ((Strategies to enable registered nurses to take meal and rest breaks as required by law or))Compliance with the terms of an applicable collective bargaining agreement, if any, ((between the hospital and a representative of the nursing staff))and relevant state and federal laws and rules, including those regarding meal and rest breaks and use of overtime and on-call shifts;

(b) Semiannual review of the staffing plan against patient need and known evidence-based staffing information, including the nursing sensitive quality indicators collected by the hospital; and

(c) Review, assessment, and response to staffing variations or ((concerns))complaints presented to the committee.

(((4)))(5) In addition to the factors listed in subsection (((3)))(4)(a) of this section, hospital finances and resources must be taken into account in the development of the ((nurse))hospital staffing plan.

(((5) The staffing plan must not diminish other standards contained in state or federal law and rules, or the terms of an applicable collective bargaining agreement, if any, between the hospital and a representative of the nursing staff.))

(6)(a) The committee ((will))shall produce the hospital's annual ((nurse))hospital staffing plan.

((If this staffing plan is not adopted by the hospital, the chief executive officer shall provide a written explanation of the reasons why the plan was not adopted to the committee. The chief executive officer must then either: (a) Identify those elements of the proposed plan being changed prior to adoption of the plan by the hospital or (b) prepare an alternate annual staffing plan that must be adopted by the hospital.))

(f) Beginning ((January 1, 2019))January 1, 2025, each hospital shall submit its final staffing plan to the department and thereafter on an annual basis and at any time in between that the plan is updated.

(7)(a) Beginning ((January 1, 2019))July 1, 2025, each hospital shall implement the staffing plan and assign nursing ((personnel))staff to each patient care unit in accordance with the plan except in instances of unforeseeable emergent circumstances.

(((a)))(b) Each hospital shall document when a patient care unit nursing staff assignment is out of compliance with the adopted hospital staffing plan. For purposes of this subsection, out of compliance means the number of patients assigned to the nursing staff exceeds the patient care unit assignment as directed by the nurse staffing plan. The hospital must adopt written policies and procedures under this subsection no later than October 1, 2024.

(c) A ((registered nurse))nursing staff may report to the hospital staffing committee any variations where the ((nurse personnel))nursing staff assignment in a patient care unit is not in accordance with the adopted staffing plan and may make a complaint to the committee based on the variations.

(((b)))(d) Shift-to-shift adjustments in staffing levels required by the plan may be made by the appropriate hospital personnel overseeing patient care operations. If ((a registered nurse))nursing staff on a patient care unit objects to a shift-to-shift adjustment, ((the registered nurse))the nursing staff may submit the complaint to the hospital staffing committee.

(((c) Staffing))(e) Hospital staffing committees shall develop a process to examine and respond to data submitted under (((a)))(c) and (((b)))(d) of this subsection, including the ability to determine if a specific complaint is resolved or dismissing a complaint based on unsubstantiated data. All written complaints submitted to the hospital staffing committee must be reviewed by the staffing committee, regardless of what format the complainant uses to submit the complaint.

(g) A direct care registered nurse or direct care nursing assistant-certified may not be assigned by hospitals to a nursing unit or clinical area unless that nurse has first received orientation in that clinical area sufficient to provide competent care to patients in that area and has demonstrated current competence in providing care in that area. The hospital must adopt written policies and procedures under this subsection no later than July 1, 2025.

(8) 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. The hospital must also post in a public area on each patient care unit any corrective action plan relevant to that patient care unit as required under RCW 70.41.425(4).

(9) A hospital may not retaliate against or engage in any form of intimidation ((of))or otherwise take any adverse action against:

(a) An employee for performing any duties or responsibilities in connection with the ((nurse))hospital staffing committee; or

(b) An employee, patient, or other individual who notifies the ((nurse))hospital staffing committee or the hospital administration of his or her concerns on nurse staffing.

(10) This section is not intended to create unreasonable burdens on critical access hospitals under 42 U.S.C. Sec. 1395i-4. Critical access hospitals may develop flexible approaches to accomplish the requirements of this section that may include but are not limited to having ((nurse))hospital staffing committees work by video conference, telephone, or email.

Sec. 4. RCW 70.41.425 and 2017 c 249 s 3 are each amended to read as follows:

(1)(a) The department shall investigate a complaint submitted under this section for violation of RCW 70.41.420 following receipt of a complaint with documented evidence of failure to:

(i) Form or establish a hospital staffing committee;

(ii) Conduct a semiannual review of a ((nurse)) staffing plan;

(iii) Submit a ((nurse)) staffing plan on an annual basis and any updates; or

(iv)(A) Follow the nursing ((personnel))staff assignments in a patient care unit in violation of RCW 70.41.420(7)(((a) or shift-to-shift adjustments in staffing levels in violation of RCW 70.41.420(7)(b)))(c) or (d).

(B) Based on their formal agreement required under sections 5 and 6 of this act, the department and the department of labor and industries shall investigate complaints under this subsection (1)(a)(iv). The departments may only investigate a complaint under this subsection (1)(a)(iv) ((after making an assessment that the submitted evidence indicates a continuing pattern of unresolved))for violations of RCW 70.41.420(7) (((a) or (b)))(c) or (d), that were submitted to the ((nurse))hospital staffing committee and remain unresolved for 60 days after receipt by the hospital staffing committee, excluding complaints determined by the ((nurse))hospital 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.

(b) After an investigation conducted under (a) of this subsection, if the department determines that there has been a violation, the department shall require the hospital to submit a corrective plan of action within forty-five days of the presentation of findings from the department to the hospital.))

(2)(a) The department shall review each hospital staffing plan submitted by a hospital to ensure it is received by the appropriate deadline and is completed on the department-issued staffing plan form.

(b)(i) In the event that a hospital ((fails to submit or)) submits but fails to follow ((such)) a corrective plan of action ((in response to a violation or violations found by the department based on a complaint filed pursuant to subsection (1) of this section))required under subsection (1)(c) or (4) of this section, the department of labor and industries may impose((, for all violations asserted against a hospital at any time,)) a civil penalty of ((one hundred dollars))$50,000 per ((day))30 days. Civil penalties apply until the hospital ((submits or begins to follow))begins to follow a corrective plan of action ((or takes other action agreed to))that has been approved by the department. Revenue from these fines must be deposited into the supplemental pension fund established under RCW 51.44.033.

(((3) The))(ii) If the department of labor and industries finds a violation after an investigation pursuant to subsection (1)(a)(iv)(B) of this section or assesses or imposes any penalty pursuant to this section, the employer may appeal the department's finding or assessment of penalties according to the procedures under sections 12 through 14 of this act.

(7)(a) As resources allow, the department ((shall maintain for public inspection))must make records of any civil penalties((,))and administrative actions((,)) or license suspensions or revocations imposed on hospitals, or any notices of resolution under this section available to the public.

(b) The department must post hospital staffing plans, hospital staffing committee charters, and the semi-annual compliance reports required under RCW 70.41.420 on its website.

(((4) For purposes of this section, "unforeseeable emergency circumstance" means:

(5)))(8) Nothing in this section shall be construed to preclude the ability to otherwise submit a complaint to the department for failure to follow RCW 70.41.420.

(((6) The department shall submit a report to the legislature on December 31, 2020. This report shall include the number of complaints submitted to the department under this section, the disposition of these complaints, the number of investigations conducted, the associated costs for complaint investigations, and recommendations for any needed statutory changes. The department shall also project, based on experience, the impact, if any, on hospital licensing fees over the next four years. Prior to the submission of the report, the secretary shall convene a stakeholder group consisting of the Washington state hospital association, the Washington state nurses association, service employees international union healthcare 1199NW, and united food and commercial workers 21. The stakeholder group shall review the report prior to its submission to review findings and jointly develop any legislative recommendations to be included in the report.

(7) No fees shall be increased to implement chapter 249, Laws of 2017 prior to July 1, 2021.))

NEW SECTION.  Sec. 5. A new section is added to chapter 70.41 RCW to read as follows:

By July 1, 2024, the department and the department of labor and industries must jointly establish a formal agreement that identifies the roles of each of the two agencies with respect to the oversight and enforcement of RCW 70.41.420 (4)(a) and (12) and 70.41.425 (1), (4), (5), (6)(b), and (7), as follows:

(1) To the extent feasible, provide for oversight and enforcement actions by a single agency, and must include measures to avoid multiple citations for the same violation; and

(2) Include provisions that allow for data sharing, including hospital staffing plans, reports submitted under RCW 70.41.420(7), and hospital staffing committee complaints submitted to the department.

NEW SECTION.  Sec. 6. A new section is added to chapter 49.12 RCW to read as follows:

By July 1, 2024, the department and the department of health must jointly establish a formal agreement that identifies the roles of each of the two agencies with respect to the oversight and enforcement of RCW 70.41.420(7) and 70.41.425 (1) and (5)(b), as follows:

(1) To the extent feasible, provide for oversight and enforcement actions by a single agency, and must include measures to avoid multiple citations for the same violation; and

(2) Include provisions that allow for data sharing, including hospital staffing plans, reports submitted under RCW 70.41.420(7), and hospital staffing committee complaints submitted to the department of health.

Sec. 7. RCW 70.41.130 and 2021 c 61 s 2 are each amended to read as follows:

(1) The department is authorized to take any of the actions identified in this section against a hospital's license or provisional license in any case in which it finds that there has been a failure or refusal to comply with the requirements of this chapter or the standards or rules adopted under this chapter or the requirements of RCW 71.34.375 on the basis of findings by the department of labor and industries under RCW 70.41.425(6)(b).

(a) When the department determines the hospital has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule, or has been given any previous statement of deficiency that included the same or similar type of violation of the same or similar statute or rule, or when the hospital failed to correct noncompliance with a statute or rule by a date established or agreed to by the department, the department may impose reasonable conditions on a license. Conditions may include correction within a specified amount of time, training, or hiring a department-approved consultant if the hospital cannot demonstrate to the department that it has access to sufficient internal expertise. If the department determines that the violations constitute immediate jeopardy, the conditions may be imposed immediately in accordance with subsection (3) of this section.

(b)(i) In accordance with the authority the department has under RCW 43.70.095, the department may assess a civil fine of up to $10,000 per violation, not to exceed a total fine of $1,000,000, on a hospital licensed under this chapter when the department determines the hospital has previously been subject to an enforcement action for the same or similar type of violation of the same statute or rule, or has been given any previous statement of deficiency that included the same or similar type of violation of the same or similar statute or rule, or when the hospital failed to correct noncompliance with a statute or rule by a date established or agreed to by the department.

(ii) Proceeds from these fines may only be used by the department to offset costs associated with licensing hospitals.

(iii) The department shall adopt in rules under this chapter specific fine amounts in relation to:

(A) The severity of the noncompliance and at an adequate level to be a deterrent to future noncompliance; and

(B) The number of licensed beds and the operation size of the hospital. The licensed hospital beds will be categorized as:

(I) Up to 25 beds;

(II) 26 to 99 beds;

(III) 100 to 299 beds; and

(IV) 300 beds or greater.

(iv) If a licensee is aggrieved by the department's action of assessing civil fines, the licensee has the right to appeal under RCW 43.70.095.

(c) The department may suspend a specific category or categories of services or care or recovery units within the hospital as related to the violation by imposing a limited stop service. This may only be done if the department finds that noncompliance results in immediate jeopardy.

(i) Prior to imposing a limited stop service, the department shall provide a hospital written notification upon identifying deficient practices or conditions that constitute an immediate jeopardy, and upon the review and approval of the notification by the secretary or the secretary's designee. The hospital shall have 24 hours from notification to develop and implement a department-approved plan to correct the deficient practices or conditions that constitute an immediate jeopardy. If the deficient practice or conditions that constitute immediate jeopardy are not verified by the department as having been corrected within the same 24 hour period, the department may issue the limited stop service.

(ii) When the department imposes a limited stop service, the hospital may not admit any new patients to the units in the category or categories subject to the limited stop service until the limited stop service order is terminated.

(iii) The department shall conduct a follow-up inspection within five business days or within the time period requested by the hospital if more than five business days is needed to verify the violation necessitating the limited stop service has been corrected.

(iv) The limited stop service shall be terminated when:

(A) The department verifies the violation necessitating the limited stop service has been corrected or the department determines that the hospital has taken intermediate action to address the immediate jeopardy; and

(B) The hospital establishes the ability to maintain correction of the violation previously found deficient.

(d) The department may suspend new admissions to the hospital by imposing a stop placement. This may only be done if the department finds that noncompliance results in immediate jeopardy and is not confined to a specific category or categories of patients or a specific area of the hospital.

(i) Prior to imposing a stop placement, the department shall provide a hospital written notification upon identifying deficient practices or conditions that constitute an immediate jeopardy, and upon the review and approval of the notification by the secretary or the secretary's designee. The hospital shall have 24 hours from notification to develop and implement a department-approved plan to correct the deficient practices or conditions that constitute an immediate jeopardy. If the deficient practice or conditions that constitute immediate jeopardy are not verified by the department as having been corrected within the same 24 hour period, the department may issue the stop placement.

(ii) When the department imposes a stop placement, the hospital may not admit any new patients until the stop placement order is terminated.

(iii) The department shall conduct a follow-up inspection within five business days or within the time period requested by the hospital if more than five business days is needed to verify the violation necessitating the stop placement has been corrected.

(iv) The stop placement order shall be terminated when:

(A) The department verifies the violation necessitating the stop placement has been corrected or the department determines that the hospital has taken intermediate action to address the immediate jeopardy; and

(B) The hospital establishes the ability to maintain correction of the violation previously found deficient.

(e) The department may deny an application for a license or suspend, revoke, or refuse to renew a license.

(2) The department shall adopt in rules under this chapter a fee methodology that includes funding expenditures to implement subsection (1) of this section. The fee methodology must consider:

(a) The operational size of the hospital; and

(b) The number of licensed beds of the hospital.

(3)(a) Except as otherwise provided, RCW 43.70.115 governs notice of actions taken by the department under subsection (1) of this section and provides the right to an adjudicative proceeding. Adjudicative proceedings and hearings under this section are governed by the administrative procedure act, chapter 34.05 RCW. The application for an adjudicative proceeding must be in writing, state the basis for contesting the adverse action, including a copy of the department's notice, be served on and received by the department within 28 days of the licensee's receipt of the adverse notice, and be served in a manner that shows proof of receipt.

(b) When the department determines a licensee's noncompliance results in immediate jeopardy, the department may make the imposition of conditions on a licensee, a limited stop placement, stop placement, or the suspension of a license effective immediately upon receipt of the notice by the licensee, pending any adjudicative proceeding.

(i) When the department makes the suspension of a license or imposition of conditions on a license effective immediately, a licensee is entitled to a show cause hearing before a presiding officer within 14 days of making the request. The licensee must request the show cause hearing within 28 days of receipt of the notice of immediate suspension or immediate imposition of conditions. At the show cause hearing the department has the burden of demonstrating that more probably than not there is an immediate jeopardy.

(ii) At the show cause hearing, the presiding officer may consider the notice and documents supporting the immediate suspension or immediate imposition of conditions and the licensee's response and must provide the parties with an opportunity to provide documentary evidence and written testimony, and to be represented by counsel. Prior to the show cause hearing, the department must provide the licensee with all documentation that supports the department's immediate suspension or imposition of conditions.

(iii) If the presiding officer determines there is no immediate jeopardy, the presiding officer may overturn the immediate suspension or immediate imposition of conditions.

(iv) If the presiding officer determines there is immediate jeopardy, the immediate suspension or immediate imposition of conditions shall remain in effect pending a full hearing.

(v) If the presiding officer sustains the immediate suspension or immediate imposition of conditions, the licensee may request an expedited full hearing on the merits of the department's action. A full hearing must be provided within 90 days of the licensee's request.

Sec. 8. RCW 49.12.480 and 2019 c 296 s 1 are each amended to read as follows:

(1) An employer shall provide employees with meal and rest periods as required by law, subject to the following:

(a) Rest periods must be scheduled at any point during each work period during which the employee is required to receive a rest period;

(b) Employers must provide employees with uninterrupted meal and rest breaks. This subsection (1)(b) does not apply in the case of:

(i) An unforeseeable emergent circumstance, as defined in RCW 49.28.130; or

(ii) ((A clinical circumstance, as determined by the employee, employer, or employer's designee, that may lead to a significant adverse effect on the patient's condition:

(c) For any rest break that is interrupted before ten complete minutes by an employer or employer's designee under the provisions of (b)(ii) of this subsection, the employee must be given an additional ten minute uninterrupted rest break at the earliest reasonable time during the work period during which the employee is required to receive a rest period. If the elements of this subsection are met, a rest break shall be considered taken for the purposes of the minimum wage act as defined by chapter 49.46 RCW.))An unforeseeable clinical circumstance, as determined by the employee that may lead to a significant adverse effect on the patient's condition, unless the employer or employer's designee determines that the patient may suffer life-threatening adverse effects;

(2)(a) The employer shall provide a mechanism to record when an employee misses a meal or rest period and maintain these records.

(3) For purposes of this section, the following terms have the following meanings:

(a) "Employee" means a person who:

(i) Is employed by ((a health care facility))an employer;

(ii) Is involved in direct patient care activities or clinical services; and

(iii) Receives an hourly wage or is covered by a collective bargaining agreement((; and

(iv) Is a licensed practical nurse or registered nurse licensed under chapter 18.79 RCW, a surgical technologist registered under chapter 18.215 RCW, a diagnostic radiologic technologist or cardiovascular invasive specialist certified under chapter 18.84 RCW, a respiratory care practitioner licensed under chapter 18.89 RCW, or a nursing assistant-certified as defined in RCW 18.88A.020)).

(b) "Employer" means hospitals licensed under chapter 70.41 RCW((, except that the following hospitals are excluded until July 1, 2021:

(iii) Hospitals certified by the centers for medicare and medicaid services as sole community hospitals as of January 1, 2013, that: Have had less than one hundred fifty acute care licensed beds in fiscal year 2011; have a level III adult trauma service designation from the department of health as of January 1, 2014; and are owned and operated by the state or a political subdivision)).

NEW SECTION.  Sec. 9. A new section is added to chapter 49.12 RCW to read as follows:

(1) The department must enforce the provisions of RCW 49.12.480, including reviewing reports submitted under RCW 49.12.480(2) to ensure they are timely, complete, and on the department-issued form.

(2)(a) Upon the department's review of the employer's report due under RCW 49.12.480(2), if the department determines that an employer is not 80 percent compliant with the meal and rest break requirements under RCW 49.12.480, and more than 20 percent of the required meals and rest periods were missed, or if an employer fails to properly submit a report, the department may offer to provide technical assistance to the employer, although until June 30, 2026, the department must offer technical assistance to the employer.

(b) Beginning July 1, 2026, if the department finds that an employer has exceeded the quarterly threshold in (a) of this subsection for missed meals and rest periods, the department must impose a penalty. The provisions of this subsection do not apply to employers who are hospitals defined in RCW 70.41.420(7)(b)(iv) until July 1, 2028.

(c)(i) The penalties assessed by the department each time the department imposes a penalty under (b) of this subsection are as follows:

(A) For hospitals certified as critical access hospitals under 42 U.S.C. Sec. 1395i-4, or with up to 25 licensed beds: $5,000;

(B) For hospitals with 26 to 99 licensed beds: $10,000;

(C) For hospitals with 100 to 299 beds: $15,000; and

(D) For hospitals with 300 or more beds: $20,000.

(ii) If the department imposes a penalty in a third consecutive quarter, the department must double the penalty amounts in (c)(i) of this subsection for subsequent consecutive quarters. An employer in compliance for a single quarter is no longer subject to the penalties for subsequent violations under this subsection (c)(ii).

(3)(a) An employer may not take any adverse action against employees for exercising any right under RCW 49.12.480. An adverse action means any action taken or threatened by an employer against an employee for exercising the employee's rights under RCW 49.12.480 or this section, but does not include noncoercive counseling, coaching, training, or other resources offered to an employee.

(b) The department must investigate complaints related to compliance with (a) of this subsection. The director may require the testimony of witnesses and the production of documents as part of the director's investigation.

(c) If the director determines that an employer has violated (a) of this subsection, the director may:

(i) Order payment to the department of a civil penalty of not more than $1,000 for an employer's first violation and not more than $5,000 for any subsequent related violation;

(ii) Order appropriate relief under this subsection (3) that includes any earnings the employee did not receive due to the employer's adverse action, including interest of one percent per month on all earnings owed. The earnings and interest owed will be calculated from the first date earnings were owed to the employee; or

(iii) Order the employer to restore the employee to the position of employment held by the employee when the retaliation occurred, or restore the employee to an equivalent position with equivalent employment hours, work schedule, benefits, pay, and other terms and conditions of employment.

(4)(a)(i) An employer must provide valid data in reports required under RCW 49.12.480(2). Valid data means that the data included in the reports is attested to by an employer's designee and has not been inappropriately manipulated or modified; and

(ii) Employees must be free from coercion into inaccurate recording of their meal and rest periods under RCW 49.12.480.

(b) The department must investigate complaints related to compliance with (a) of this subsection that are facially based on the actual knowledge of the complaining party. The director may require the testimony of witnesses and the production of documents as part of the director's investigation.

(c) If the director determines that an employer has violated (a) of this subsection, the director may:

(i) Order the employer to pay the department a civil penalty of not more than $1,000 for an employer's first violation and not more than $5,000 for any subsequent related violation; and

(ii) Order appropriate relief that includes any earnings the employee did not receive due to the employer's adverse action, including interest of one percent per month on all earnings owed. The earnings and interest owed will be calculated from the first date earnings were owed to the employee.

(5) The department may investigate and take appropriate enforcement action under this section without any complaint if the department discovers data in the course of an investigation or inspection.

(6) Any appeals of the department's decisions, including assessed penalties, and collection or deposit of civil penalties under this section must be pursuant to sections 12 through 14 of this act.

(7) For the purposes of this section, "coercion" means compelling or inducing an employee to engage in conduct which the employee has a legal right to abstain from or to abstain from the conduct which the employee has a legal right to engage in.

Sec. 10. RCW 49.28.140 and 2019 c 296 s 3 are each amended to read as follows:

(1) No employee of a health care facility may be required to work overtime. Attempts to compel or force employees to work overtime are contrary to public policy, and any such requirement contained in a contract, agreement, or understanding is void.

(2) The acceptance by any employee of overtime is strictly voluntary, and the refusal of an employee to accept such overtime work is not grounds for discrimination, dismissal, discharge, or any other penalty, threat of reports for discipline, or employment decision adverse to the employee.

(3) This section does not apply to overtime work that occurs:

(a) Because of any unforeseeable emergent circumstance;

(b) Because of prescheduled on-call time, subject to the following:

(i) Mandatory prescheduled on-call time may not be used in lieu of scheduling employees to work regularly scheduled shifts when a staffing plan indicates the need for a scheduled shift; ((and))

(ii) Mandatory prescheduled on-call time may not be used to address regular changes in patient census or acuity or expected increases in the number of employees not reporting for predetermined scheduled shifts; and

(c) When the employer documents that the employer has used reasonable efforts to obtain staffing. An employer has not used reasonable efforts if overtime work is used to fill vacancies resulting from chronic staff shortages; or

(d) When an employee is required to work overtime to complete a patient care procedure already in progress where the absence of the employee could have an adverse effect on the patient.

(4) An employee accepting overtime who works more than twelve consecutive hours shall be provided the option to have at least eight consecutive hours of uninterrupted time off from work following the time worked.

Sec. 11. RCW 49.28.150 and 2002 c 112 s 4 are each amended to read as follows:

The department of labor and industries shall investigate complaints of violations of RCW 49.28.140 as provided under sections 12 through 14 of this act. ((A violation of RCW 49.28.140 is a class 1 civil infraction in accordance with chapter 7.80 RCW, except that the maximum penalty is one thousand dollars for each infraction up to three infractions. If there are four or more violations of RCW 49.28.140 for a health care facility, the employer is subject to a fine of two thousand five hundred dollars for the fourth violation, and five thousand dollars for each subsequent violation. The department of labor and industries is authorized to issue and enforce civil infractions according to chapter 7.80 RCW.))

NEW SECTION.  Sec. 12. A new section is added to chapter 49.12 RCW to read as follows:

(1)(a) If a complainant files a complaint with the department of labor and industries alleging a violation of RCW 49.28.140, the department shall investigate the complaint.

(b) The department may not investigate any such alleged violation of rights that occurred more than three years before the date that the complainant filed the complaint.

(c) Upon the investigation of a complaint, the department shall issue either a citation and notice of assessment or a determination of compliance, within 90 days after the date on which the department received the complaint, unless the complaint is otherwise resolved. The department may extend the period by providing advance written notice to the complainant and the employer setting forth good cause for an extension of the period and specifying the duration of the extension.

(d) The department shall send a citation and notice of assessment or the determination of compliance to both the employer and the complainant by service of process or using a method by which the mailing can be tracked, or the delivery can be confirmed to their last known addresses.

(2) If the department of labor and industries investigation finds that the complainant's allegation cannot be substantiated, the department shall issue a closure letter to the complainant and the employer detailing such finding.

(3)(a) If the department of labor and industries finds a violation of RCW 49.28.140, the department shall order the employer to pay the department a civil penalty.

(b) Except as provided otherwise in this chapter, the maximum penalty is $1,000 for each violation, up to three violations. If there are four or more violations of this chapter for a health care facility, the employer is subject to a civil penalty of $2,500 for the fourth violation, and $5,000 for each subsequent violation.

(c) The department may not assess a civil penalty if the employer reasonably relied on: (i) A rule related to any of the requirements of RCW 49.28.140; (ii) a written order, ruling, approval, opinion, advice, determination, or interpretation of the director; or (iii) an interpretive or administrative policy issued by the department and filed with the office of the code reviser. In accordance with the department's retention schedule obligations under chapter 40.14 RCW, the department shall maintain a complete and accurate record of all written orders, rulings, approvals, opinions, advice, determinations, and interpretations for purposes of determining whether an employer is immune from civil penalties under (b) of this subsection.

(4) The department of labor and industries may, at any time, waive or reduce a civil penalty assessed under this section if the director of the department determines that the employer has taken corrective action to resolve the violation.

(5) The department of labor and industries shall deposit all civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.

NEW SECTION.  Sec. 13. A new section is added to chapter 49.12 RCW to read as follows:

(1) A person, firm, or corporation aggrieved by a citation and notice of assessment or a determination of compliance by the department of labor and industries under section 12 of this act may appeal the citation and notice of assessment to the director of the department by filing a notice of appeal with the director within 30 days of the department's issuance of the citation and notice of assessment. A citation and notice of assessment or a determination of compliance not appealed within 30 days is final and binding, and not subject to further appeal.

(2) A notice of appeal filed with the director of the department of labor and industries under this section shall stay the effectiveness of the citation and notice of assessment or the determination of compliance pending final review of the appeal by the director as provided for in chapter 34.05 RCW.

(3) Upon receipt of a notice of appeal, the director of the department of labor and industries shall assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures shall be conducted in accordance with chapter 34.05 RCW, and the standard of review by the administrative law judge of an appealed citation and notice of assessment or determination of compliance shall be de novo. Any party who seeks to challenge an initial order shall file a petition for administrative review with the director within 30 days after service of the initial order. The director shall conduct administrative review in accordance with chapter 34.05 RCW.

(4) The director of the department of labor and industries shall issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.

(5) Orders that are not appealed within the time period specified in this section and chapter 34.05 RCW are final and binding, and not subject to further appeal.

(6) An employer who fails to allow adequate inspection of records in an investigation by the department of labor and industries under this section within a reasonable time period may not use such records in any appeal under this section to challenge the correctness of any determination by the department of the penalty assessed.

NEW SECTION.  Sec. 14. A new section is added to chapter 49.12 RCW to read as follows:

Collections of unpaid citations assessing civil penalties under sections 11 through 13 of this act will be pursuant to RCW 49.48.086.

(1) The institute must review current and historical staffing plans filed with the department of health under chapter 70.41 RCW and describe:

(a) Timeliness and completeness of filed forms;

(b) Format of filed forms;

(c) Patient care unit nursing staff assignments related to the maximum number of patients to which a direct care nursing or nursing assistant may be assigned;

(d) Descriptive statistics on submissions by hospital unit type;

(e) Trends over time, if any;

(f) Legal minimum staffing standards for registered nurses and nursing assistants in other jurisdictions; and

(g) Relevant professional association guidance, recommendations, or best practices.

(2) The department of health shall cooperate with the institute to facilitate access to data or other resources necessary to complete the analysis required under this section.

(3) The institute must provide a report on its findings to the department and relevant committees of the legislature by June 30, 2024.

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