King handed bill barring forced OT Governor worried about effect of legislation sought by nurses

AUGUSTA – A bill barring hospitals from forcing nurses to work mandatory overtime was passed Tuesday by the Senate and sent to the governor’s office where it faces a grim reception.

During a noon meeting with reporters, Gov. Angus S. King said he harbored serious concerns about LD 1082 which he said could prevent hospitals from providing adequate staffing coverage. He was also worried that signing the bill into law could have unintended implications for workers in unrelated occupations who might also desire the protections the bill conveys to registered nurses and other health care workers.

“I do have some problems with the bill,” King said. “[A nurse] could refuse overtime on the first hours after eight. I’m not sure that comports with what the bill purports to say which is that tiredness is the issue. It’s also been my experience that once you take a step like this, I can guarantee that in the next Legislature there will be three more bills for mandatory overtime limitations for some profession. I’m just not sure the state needs to step in and make the rules.”

Last Wednesday, members of the Maine House passed the bill by a 99-43 vote – just two votes short of a veto-proof, two-thirds majority. Although endorsed by the Senate on May 8 by a 21-14 vote, the nurse overtime bill barely survived an amendment attempt Tuesday that critics maintained would have essentially gutted the bill’s original intent. The amendment, sponsored by Sen. Tom Sawyer, R-Bangor, was defeated 17-17. The Senate then voted 20-14 to pass the original bill and send it to King for his signature.

Proponents of the legislation maintain mandatory overtime is used as a routine staffing strategy at hospitals dealing with acute nursing shortages. The bill prevents a licensed nurse, or any other health care worker who provides direct care to patients, from being disciplined for refusing to accept overtime work. Currently, nurses have an ethical duty to provide care for patients regardless of physical or mental fatigue, but that obligation is balanced by an ethical duty not to place patients at risk, supporters say.

Pat Philbrook, executive director for the Maine State Nurses Association, said current overtime policies are discouraging nurse retention and recruitment efforts in an industry already plagued by critical staff shortages. She said under prevailing licensing requirements, nurses can be charged with unprofessional conduct if they abandon patients or terminate the nurse-patient relationship without the patient’s consent or without first making arrangements for the continuation of required nursing care by others. But a nurse’s refusal to accept an employer assignment or refusal to accept a nurse-patient relationship, she said, is not considered patient abandonment.

The Maine Hospital Association has actively opposed the bill. Mary Mayhew, MHA’s chief lobbyist, maintained the bill was unnecessary because hospitals do not resort to mandatory overtime frivolously. Instances of mandatory overtime, she said, are a strategy of last resort after hospitals have exhausted all other alternatives and are still unable to meet nurse staffing level needs.

During debate Tuesday on Sawyer’s amendment, which would have required a hospital supervisor’s approval before a nurse could decline a mandatory overtime request, the senators were clearly more divided on the issue than last week when the measure lacked all but three votes for a two-thirds majority. In making his argument for the amendment, Sawyer cited a section of the code of ethics adopted by the American Nurses Association which states that a nurse “is obligated to provide for the patient’s safety, to avoid abandonment and to withdraw only when assured that alternative sources of nursing care are available to the patient.”

“I’m truly worried that in no instance do we allow a single individual the opportunity or the option of closing down a floor or an emergency room,” Sawyer said. “It’s my understanding that even the president of a hospital without consultation would not be able to close down an emergency room. This bill without this amendment could allow a single individual to ultimately make that decision.”

Patient care concerns were echoed by Sen. Peter Mills, R-Cornville, who said the language in the bill legitimized patient abandonment, a claim that brought registered nurse and independent Bar Harbor Sen. Jill Goldthwait to her feet.

“This bill is not about abandoning patients,” she said. “It’s about nurses who are being driven to work so many hours that they can’t see straight, calculate meds or care for the patient. Believe me, a nurse would not abandon a patient, it does not happen. This is about nurses who have worked 12 hours and are asked to work 16 or [worked] 16 and asked to work 24. This is about hospitals using a common practice of keeping nurses at work for so long that they can’t see straight and there is absolutely nothing they can do about it.”

Should King elect to veto the nursing overtime bill, proponents would have to rally 101 votes in the House and 24 in the Senate to achieve the two-thirds majority threshold needed to override the veto. Philbrook declined comment Tuesday on whether the MSNA would be able to convince enough legislators to enact the bill over any possible objections from the governor.