The Massachusetts Supreme Judicial Court (SJC), the state’s highest court, has held that an Initiative Petition (Initiative Petition 17-07) seeking to create a new law (“The Patient Safety Act”) that would dictate to hospitals and acute care units in state-operated health care facilities the number of patients that may be assigned to a registered nurse is constitutional and could be placed on the November ballot if a sufficient number of supporting signatures were submitted to the Secretary of the Commonwealth by July 3. Supporters of the Initiative Petition submitted the required number of signatures by July 3, so it will be placed on the November ballot as Question #1.

If Question #1 passes, the Initiative Petition would become law and impose strict registered nurse-to-patient staffing ratios on hospitals in Massachusetts. This new law would include two key provisions:

1. Creation and enforcement of registered nurse-to-patient ratios in Massachusetts hospitals.
2. Implementation of those ratios cannot result in a workforce reduction (see below).

For hospitals covered by the proposed law (rehabilitation and long-term care facilities are expressly excluded), the proposed law would impose strict limits on the number of patients who may be assigned to an individual registered nurse. Here are some examples of the proposed patient-to-registered nurse ratio limits:

• Emergency Services Department: A maximum of one intensive care patient per registered nurse, although another may be accepted if both patients’ conditions are stable.
• Pediatric Units: A maximum of four pediatric patients per registered nurse.
• Psychiatric Units: A maximum of five psychiatric patients per registered nurse.
• Units with Rehabilitation Patients: A maximum of five rehabilitation patients per registered nurse.
• Maternal Child Care Units: A maximum of six well-baby patients per registered nurse.

In addition to imposing these ratios, the proposed law would prohibit hospitals from reducing “health care workforce” staffing levels in order to comply with the patient-to-registered nurse assignment limits. “Health care workforce” is broadly defined as personnel who “have an effect upon the delivery of quality care to patients,” including nurses (RNs and LPNs), maintenance, clerical, and other workers. The challenge to the Initiative Petition noted the “possible sweeping consequences” of this provision, but the SJC found this did not render the Initiative Petition unconstitutional. The SJC explained that the restriction on reducing the health care workforce “dictates how nurse-to-patient ratios may be maintained: in a manner such that there be no reductions in staff among other members of the health care workforce.”

Question #1 is supported by the Massachusetts Nurses Association, a labor union representing less than 25 percent of nurses working in Massachusetts. However, the Massachusetts Hospital Association, the Massachusetts Chapter of the American Nurses Association and the Organization of Nurse Leaders oppose it. Many hospital administrators believe the ratios will require them to add a substantial number of registered nurses to their workforce, with a large increase in their facilities’ labor costs and the potential elimination of certain services in order to fund the larger registered nursing workforce required to meet the registered nurse-to-patient ratios.

If 30 percent of all voters who cast ballots in the November 6, 2018 election vote “yes” to Question #1, and a majority of those who vote on the question vote yes, Question #1 becomes law effective on January 1, 2019. This would leave hospitals less than two months to implement a plan to comply with the new staffing ratios. If passed, the law would authorize the Attorney General to seek injunctive relief and civil penalties of up to $25,000 per day against hospitals failing to meet the mandated staffing ratios. Massachusetts hospitals should begin preparing now for the possible advent of registered nurse-to-patient ratios.

While California is the only state with mandatory staffing ratios, hospital administrators in other states should follow developments in Massachusetts because a yes vote here could lead to similar staffing ratio efforts by nursing unions or advocacy groups in their states.

Summer Clerk Jessica Murphy, in our Hartford office, contributed to this blog post.