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Safety in Numbers
Judge's ruling on the 'at all times' provision of staffing ratio law forces hospitals to scramble to find more nurses
By John Leighty
July 19, 2004

A judge’s ruling upholding the “at all times” provision of California’s bellwether nurse staffing law came as good news to Malinda Markowitz, RN, who works in the medical/surgical unit at Good Samaritan Hospital in San Jose, Calif.

Before the new minimum nurse-to-patient ratios, Markowitz often felt overwhelmed with the number of patients she had been assigned.

“There were times when I didn’t know if I could adequately take care of patients,” Markowitz said. “I was frightened for my patients and frightened for myself.”
She’s pleased the law remains intact, including a requirement that the ratios be maintained during lunches and breaks. In May, a superior court judge upheld the “at all times” section by rejecting a challenge filed Dec. 30 by the California Healthcare Association on behalf of the hospital industry.

Numerous states are watching California’s ratio laws with interest and similar legislation is being pursued in Pennsylvania, New York, and Massachusetts.

The most advanced proposal is in Massachusetts, where a bill has been passed by the state senate that would phase in ratios of 1-to-4 in medical/surgical units in all Massachusetts hospitals during a three-year period, with 10 hospitals required to adopt the ratios in the first year, 15 more in the 2006, and the remainder in 2007.

“California’s nurse staffing model has laid the groundwork for nursing groups across the country,” said David Schildmeier, spokesman for the Massachusetts Nursing Association, adding that the court ruling on the “at all times” provision was closely watched across the nation.
Schildmeier is optimistic that the Massachusetts legislation will pass, and he hopes this will help inspire the growing movement toward safe staffing laws.
Ratio’s benefits

Although Markowitz still has a busy schedule, she said the minimum 1-to-6 nurse-to-patient ratio mandated in med/surg for 2004 has relieved job stress and allows her to give patients more personal attention. When the ratio changes to 1-to-5 as required by the law in January, Markowitz believes she and other nurses will finally find time for an often neglected responsibility — providing emotional and spiritual support to patients.

“Patients are older, sicker, and more fragile than in the past and need more complex treatments and medications,” said Markowitz, who started at Good Samaritan as a nursing assistant in 1978 and then transitioned to med/surg after earning her nursing degree. “We need to be able to anticipate what patients need and be there to provide it before they ask us.”

Julie Clayton, RN, chief nursing officer at Good Samaritan, said the facility has worked hard to meet the ratios, hiring 34 nurses this year and budgeting $4 million for recruitment and retention programs to help meet the mandate with its staff of about 650 nurses. However, the hospital also paid $50,000 in overtime penalties to nurses in the first three months of this year because of difficulties in meeting the “at all times” provision of the ratios.

Dorel Harms, RN, vice president of the health care association, said the hospital industry was disappointed with the judge’s decision and that many of the state’s 500 hospitals will have a difficult time complying with the “at all times” provision because of the nursing shortage and financial considerations. She said the association would look at additional legal options for challenging the legislation.
“As a result [of the ruling], hospitals may have to delay admitting new patients, discharge patients sooner, or cancel elective surgeries — all in an effort to comply with the experimental nurse ratio regulations,” Harms said.

A law with teeth
Sacramento (Calif.) Superior Court Judge Gail Ohanesian’s ruling May 27 upheld the interpretation of the law as issued by the California Department of Health Services. The judge stated that “the hospital must reassign the nurse’s patients to another nurse and the reassigned patients must not cause the relieving nurse’s patients to exceed the applicable ratios set forth in the regulation.” She added that removal of the “at all times” provision would make the statute “meaningless.”

Clayton agreed that the “at all times” provision was the most challenging part of the ratios law. “We can’t always find enough qualified people to relieve nurses during lunches or breaks.”

As a result, two full-time nurses do nothing but relief work for their entire shifts, Clayton said, adding that the court ruling takes away the option for nurses to relieve each other in some units. She says nurse managers now will be pulled into patient care more than in the past, when they usually helped only in emergency situations.

Markowitz said the nursing ratios have been met consistently in her unit. If a situation arises where there’s a jump in patient volume, unit nurses will pull together to adjust their breaks or work beyond their regular shifts to keep the ratios intact.

Although some nurses have applauded the ratios, others suggest that the law prevents nurses from having the freedoms they need to do their jobs. Nancy Blake, RN, MN, CCRN, CNAA, director of critical care services at Childrens Hospital Los Angeles, said the pediatric facility has traditionally staffed to meet the needs of its patients and that numeric ratios take away the flexibility nurses need to prioritize care based on acuity and other factors.

“I understand the intent of the ratios. My concern is that rolling out the ‘at all times’ requirement is extremely problematic,” Blake said. “In a hospital setting, there’s an ebb and flow of work, and emergencies can occur, such as a patient having to go to radiology for tests or to the operating room. So, at the beginning of a shift, we could have the staff to meet the ratios, but if something unexpected occurs, we would be out of compliance.”

In the emergency department, critical care units, and the Level 1 trauma unit, where patient-to-nurse ratios are 4-to-1, 2-to-1, and 1-to-1, respectively, it’s difficult to anticipate patient flow and a sudden influx of a few injured or ill patients could result in noncompliance, Blake said.
Nicole Sheppard, RN, an ED charge nurse at Childrens Hospital, said while she supports the mandated ratios for general patient care, the view from the emergency department is different. A pediatric trauma patient, for example, could require four nurses initially — one for bedside care, one to document the trauma, one to start an IV, and another for medication.

At other times, a nurse assigned to four patients who don’t need much care often could take on another child, but the ratios law won’t allow this.
“The ratios are out of whack based on numbers,” said Sheppard, who joined the ED as a clinical nurse 11 years ago. “For critical trauma, we would never leave one nurse alone with the patient. It’s not safe.”
On the other hand, children could be turned away on a crowded day because there’s no flexibility once the maximum ratios are reached even if a nurse wants to help another patient, she said.

Filling the bill
Deborah Burger, RN, president of the California Nurses Association, which sponsored the ratios law, said a survey done by the association showed that in the first three months of implementation, 70% of hospitals were in compliance, including covering nurses during breaks and meals. She said float nurses or charge nurses often were used, and that the “at all times” provision was an integral part of the law.

DHS spokeswoman Lea Brooks said that as of June 22, 77 hospitals have voluntarily reported being out of compliance since the law went into effect. Of that total, nine staffing deficiencies were found, three showed no violation, and the remaining reports are being investigated.
Another 66 mostly smaller, rural hospitals have applied for flexibility waivers because of difficulties in meeting ratios. Of these, 21 were approved, 26 were denied, and the others had partial approval or denial, Brooks said.
Brooks also said most of the deficiencies found were technical violations in which nurses were temporarily assigned more patients than the law allowed. However, there were no cases in which patient safety was found to be at risk, she said. The state agency does acknowledge the high annual costs to hospitals to meet the unfunded mandate — $422 million in 2004, $652 million in 2005, and $956 million by 2008.
The department also forecasts a shortage of 30,000 nurses in 2006 and 97,000 by 2010.

Although the hospital industry agrees with the state on the nursing shortage crisis numbers, the CNA’s Burger maintains that recalculated figures paint a much brighter picture. She said nursing schools have increased enrollments and have waiting lists, which will help ease the crunch during the next couple years. The number of actively registered nurses went from 255,145 in January 2001, to 288,491 as of April 30 — a gain of more than 33,000, she said.
Nevertheless, hospitals are scrambling to attract and keep nurses. Good Samaritan still has 90 openings for nurses, although traveling nurses fill some slots temporarily.

The hospital’s parent company, Nashville, Tenn.-based Hospital Corporation of America, has contributed $10 million to nursing scholarships during the past two years, paying full tuition for qualified students who agree to start their career in an HCA hospital.
“The challenge is to find nurses,” Clayton said. “I’ll hire them if we can find them. Some people have a misconception that the hospital is not hiring, but the fact is the nurses are just not there.”
Mills-Peninsula Health Services in San Mateo, Calif., hired 34 new nurses to meet the ratios requirement and is looking for 15 to 18 more nurses because of staff losses. The hospital recently put an additional $2 million toward plans to meet the ratios, said Christine Delucas, RN, MSN, vice president of acute care services.

Delucas said Mills-Peninsula has 633 nurses and is one of the top recruiters in the Sutter Health system, developing partnerships with nursing schools across the country and hiring foreign nurses. Although the turnover rate is low, about 7%, it’s difficult to recruit in a state that ranks 49th in the nation in the ratio of nurses to the population — 585 nurses for every 100,000 residents, Delucas explained.

Children’s Hospital and Research Center in Oakland, Calif., is planning to hire additional nurses to its RN staff of 650 because of the recent court ruling regarding the “at all times” staffing issue, said Nancy Shibata, RN, MSN, vice president of nursing. “In the meantime, we’re doing the best we can to provide coverage within the ratios.”
Before the ruling, the hospital’s policy allowed a nurse to fill in for a colleague if the task to be performed was specific and time-limited, Shibata said. “So if a nurse had a stable patient whose meds and so forth were OK and she wanted a 30-minute break, she could take it and another duty nurse could assist the patient during the break. This was an area we considered very flexible and had hoped it could continue.”

Success story
In critical care, there’s always been a required ratio of one nurse for two patients, but it hasn’t always been easy to maintain “at all times” because of past nursing shortages, said Carol Wocholz, RN, who has been a critical care nurse at Arrowhead Regional Medical Center in San Bernardino, Calif., for 10 years.

“The key is making sure we always have a charge nurse, which wasn’t always the case before the ratios took effect,” she said.
Remy Bartolome, RN, who has worked in telemetry and renal transplant at Arrowhead for five years, said the 1-to-4 nurse-to-patient ratio for her unit ensures that enough nurses are available on each shift to give the best possible care. For a group of 24 patients, there are six RNs, five LVNs, and one charge nurse, who watches the monitors and coordinates nursing activities.

“It’s much better with the ratios law because I know I can meet my patients’ needs,” said Bartolome, who received much of her training in the Philippines and won a Nurse of the Year award for mentoring at the teaching hospital. “When a patient calls, I can respond right away.”

One area that needed extra staffing attention was the hospital’s Level 2 trauma unit, which requires a 1-to-1 nurse-to-patient ratio, said Victoria Selby, RN, BSN, MHA, associate administrator of patient services.
If there’s an influx of patients from a major accident, or a full-blown disaster such as the devastating wildfires in October, nurse managers and assistant managers are called to help with patient care.

“If I was called to come in, I’d come in and help as well,” Selby said. “At times, meeting this ratio can be challenging, so we’ve increased staffing to have more nurses on at all times.”

Selby said funding for 48 additional RNs was approved in the 2005 budget, and that will give the hospital a free charge nurse for each unit. This nurse, along with nurses in a float pool, will help maintain ratios during every shift.
Also being implemented are so-called SWAT teams consisting of an RN and nursing assistant who will float throughout the hospital to give additional support where needed, such as in transferring patients.

“We have flexible scheduling as well,” Selby said. “There are four, six, eight, and 12-hour shifts, which serves a double advantage. It accommodates the needs of nurses as well as providing a way of covering for breaks and lunches.”
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