As previously reported, effective November 5, 2012, Massachusetts law prohibits hospitals from requiring nurses to work mandatory overtime except in “emergency situations” where “the safety of a patient requires its use and when there is no reasonable alternative.” The new law, which was buried in the lengthy healthcare cost containment legislation enacted in August 2012, created a new Health Policy Commission (“Commission”) to issue guidelines defining what constitutes “emergency situations.” The Commission recently published its proposed guidelines.  A public hearing for the guidelines is scheduled for April 26, 2013.

The proposed guidelines define “emergency situation” as “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 (a) government declaration of emergency;¹ (b) catastrophic event;² or (c) patient care emergency.”

A “patient care emergency” under the proposed guidelines is defined as “a situation that is unforeseen and could not be prudently planned for or anticipated by the hospital, and that requires the continued presence of a nurse to provide safe patient care.” For example, the guidelines describe the situation when a nurse is engaged in an ongoing medical or surgical procedure that lasts beyond the end of the nurse’s shift. Determining whether a patient care emergency exists would be made by the hospital’s chief executive officer or a specific designee. The guidelines provide, however, that a patient care emergency shall not include situations that result from routine staffing needs, typical levels of absenteeism, or approved time off such as vacation, holidays, or sick leave.

The guidelines also require hospitals to make reasonable efforts to avoid mandatory overtime. The guidelines identify the following examples of reasonable alternatives:

1) maintaining a “float pool”; 2) creating and posting schedules with minimal staffing gaps at least four weeks in advance of scheduled shifts for the purpose of filling any vacant shifts; 3) taking action to fill any remaining vacancies before such shifts occur; 4) establishing an “availability list” or “on-call” list of nurses who may be available to volunteer for unexpected vacancies; 5) convening daily pre-shift huddles to determine patient placement and staffing requirements; and 6) ensuring the hospital’s “emergency operations plan” or “disaster plan” provides for staffing assignments during an emergency situation.

Hospitals are required to make additional good faith efforts prior to mandating overtime. Examples of good faith efforts include:

1) reaching out to all available qualified staff who are working at the time of the emergency situation; 2) contacting qualified employees who have made themselves available to work extra time; 3) seeking the use of off-duty, per diem, and part-time nurses; 4) seeking personnel from a contracted temporary agency when such staff is permitted by law or regulation; and 5) determining whether coverage is available from other units in the hospital.

The Commission scheduled an April 26, 2013 public hearing to consider the proposed guidelines. The hearing will take place from 9 a.m. to 11 a.m. at the Gardner Auditorium, State House, Boston, MA 02133. Interested parties may submit written comments regarding the proposed guidelines to Health Policy Commission, 2 Boylston Street, 6th floor, Boston, MA 02116, Attention Lois H. Johnson. Written comments must be postmarked by May 8 or hand-delivered to the Commission by the close of business on May 10, 2013.

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¹ A government declaration of emergency is defined as “a federal, state, municipal, or local declaration of emergency that takes effect pursuant to applicable federal or state law.”

² A catastrophic event is defined as “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.”

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